The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-09

vh0R that the offender "ihaH be tried in The
| Rate ana di'tri6s wherein the crime nai have
| been committed" and b. the atl of Corcrcis
which requires that twelve petty jurors at
| ie7't fh1il hc ;uumoued from the county where
the offence was committed
| ~ DESCRIPTION Of the particular manner in
which the war was levied, feems alto eiIential to
enable the accufrd to make his defence. The
| law does not expect man 10 he PREPARED 10
defend every act OF his life which may he fud-
| denly and without notice ALLEGED againt him.
In common juitice the particular fact with
which he Is charged ought To be fated, and
itated IN tuch manner as TO afford reaionabIe
certainty of the nature of the accuiation, and
the circumstances which will be adduced aeanR
him. The general doctrine on the iuhie0 of
indictments is full to this point. Fofter D. I4o.
'peakinG Of the 'reafon of computing the kings
death, fays From what has been faid it fol-
loweth that in every Indictment for this ipeces
oil treaton, and indeed for levyinc war ard ad.
herring to the kings enemies an overt aa NUT
he alledged and proved. For the overt ACT i;
the charge to which the prifoner muR apply his
dcicnce''
In page ego, F fer repeats this declaration
1t is a!fo laid down in Hawk. 8, CHI. II. ftet.
30. 1T Hale 1871. III Eaft II6, and by the other
| authorities CITED, Especially Vaughan's cafe. In
confederation of this opinion, it may be obferv-
ed, that trealnn can only be efabliil,ed by the
proof OF overt acts, and that by the common
law as well rs by the fatute of 9TH of Will
| am s., thoie overt acts only which are charged
IN the indictment can he given in evidence, un-
'ets perhaps as corrotora,ive tefimony after the
| overt acts are proved. That claufe in the con-
ttiution too which fys that in all criminal pro-
tecu'ions the accnfed fhall erjoy the right "to
| be informed of the nature and caufe Of the ac-
| cuiation' is coniidsred as having direct hear.
ing on this point. 1t ftcures to him fuch in
! formation as will enable him to prepare for his
defence.
1t iesms then TO be perfectly clear that it
would not be futicient for an Indictment to al
ledge generally that the accufed had levied war
aganit the Unted States. The charge NUT be
more particularly fpecfed by laying what is
termed An overt act of lsvying war. The law
relative to an appeal as c;eh from Stamford, is
itrougly corroborative of this opinion.
Fit be necenary to fpecify the charge in the
indictment, it would feem to follow rreiiftably,
that the charge 'luf he proved az laid.
All the authorities which require an overt
act, require ALTO that this overt aet Riculd be
proved. The iecihon in Vaughan's cafe 10 par
ticuarIy in p2int. Night it be osherwife, the
charge of an overt ACT would be rifchief in
ftead of an advantage 70 the accu(ed. 1t would
| lead him from the true cauic and nature of the
accu!ation inhead of informing him rcfpc6iug
il.
Blu; it is consenIed on the part of The profe-
cuticn that, although Tie acCufed bad been
never with the party which aiIembied at BAN
rerhaiTeti's iland, and was, 1T the time. at a.
! great diitancc, and in different ilate, he was
| yet legally prsient, and therefore may properly
be charged in the indictment rs being preieat
in &c.
| Ii is therefore neceiIary to enquire whether
in this cafe the doctrine of conltruttive preience
can apply.
| 1t is conceived by the court to be pofTibe
that perfon may be concerned in treafona-
bic couipiracy and yet he legally, as well rs ac-
tualiy abient while fonre one act of the treafoD
! is pcrpetrated. II rebellion ihould be 70 ex-
tcpf9e as to fpread through every fate in the
union, it will fcarcely be coutended that every
individual concerned in it is legally prcient at
every overt atl committed in tie courfe of that
rebellion. 1t would be very violent prefump-
ton indeed, too violent 10 be made without
clear authority, to prefunc that even the chief
ofthe rebel army was legally prefent at every
| imch overt aGt. IF the main rebel army with
the chief at its head llould be profecuting war
at one extremity of our territory, fay in n. Fl.
! # this chief lhould he there captured and fent
to the other extremity for the purpoGe Of trial,
| It his indictment intsad of aledging an overt
! act WNlCh was true IN point or TACT, fhOud al
ledge that he had aHembled fome fmall party
| which in truth he had not feen, and had levied
war by engaging in a flsirmiih in Georgia at a
time when in reality he was fighting battle
in New Hamp Hire, if nch evidence would fup.
poit fuch an indictment by the fiction that he
was legally preient though really abfent, all
would ak to " hat purpole are thofs provifons
in the contribution which direct the place of
! trial, and orJain that the accuied ihall be in-
formed of the nature aud caule of the accufa-
! tioa /?
But that man NAV he legally ahfent who has
counlcIled or procured a treafona5e act. il
proved by all thoie books which treat upon the
! iuti,d, and which concur in declaring that
! ipch psrton Is principal traitor, not becaufe
&c was legally preient, but becauie in tTeafon
III are principals. Yet the indictment r4y
u7on general principles, would charge him ac-
| cordius to the truth ct the cafe. Lord Coke
flys I" If many confpire to levy war add foBe
Of them do levy thc fIme 7ccu ding to the con.
G5uAcy, this is high ircalon in alt" Why
E@cau'e III were legally prsient when the wat
hwaa e,iei No. For ~ treafou, continues
! Lord Coke, al be principals, and war e levied
~ .his CT. the indictment, reafonjng from an.
aiogy, would not charge that tire aDfeui ccnfpi
ra;orq were prelcpt bu would Hlte the truth o
! The cafe. If the coulpiratOr bad done nothing
which Amounted to- lcyying Of war, and If by
cur conGituiion the do1Inc that an acceGdr,
becomes principal be not adopted, in COME
/ qoeuce Of which tie ooniprator could not b,
condemned under ~ indictment Eating tn,