Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-23

dividual makes the guilt OF the assembling,
his guilt, and in the other case the procure
ment by the individual makes the guilt o
the assemblage his guilt, then presence anc
procurement are equally component parts
of the overt act, and equally require two
witnesses.
Collateral points may, say the books, be
proved according to the course OF the COM
mon law, butts this collateral point is
the fact without which the accused does
NOT participate in the guilt OF the assem-
blage, if it was guilty, collateral point
This cannot be. The presence of the par
~, where presence is necessary, being Il
part of the overt act, must be positively
proven by two witnesses. No presumptive
evidence no facts from which presence
may he coniectured or Inferred, will salts
fy the constitution and the law. IF procure
ment take the place of presence, and be-
come part OF the overt act, then no pre-
sumptive evidence, no facts from which the
. procurement may be conieCtured or infer
red, can satisfy the constitution and the
law. The mind is not to be led to the con-
clusion that the individual was present by
a train of conjeCtureS, or inftrrees, or OF
reasoning; the fact must he proved BIZ two
witnesses. Neither where procurement
supplies the want of presence, is the mind
/ 20 be conducted to tlFe conclusion that the
accused procured the assembly by a train
of conjeCturCs, ct differences, or of reason
ing; the FACT Itself must be proved Ivy two
witnesses, and must have been committed
within the district.
| II 1t be sid ihat the advising or procure.
ment OF treason is secret transaction
which can scarcely ever he proved in the
manner required bv this opinSan the an
Swer which will readily suggest Itself is,
that the difficulty of proving fact will not
JnStiy conviction without proof. Certainly
1t VIII not JUSTIFY conviction without di-
rect and positive witness in case where
me constitution requires two. The more
! correct inference from this circumstance
would seem to be, that the advising Of the
| tact Is not within the constitutional dciini.
lion OF the crime. To advise or procure
a treason is in the nature ofconspiring or
! plotting treason, when is not treason in it
self
IF then the doctrines OF Keeling, Hale,
}and East, are to BE understood IN the sense
in which they are pressed by the counsel
for the prosecution, and arc applicable IL
the y. States the fact that che accused
iprocured the assembiage on Blannerhas-
sets island must be proved, not circum-
lstancally, but positively by two witnesses,
there are still other most important con-
sjierations which must be well weighe d be-
fore this doctrine can be applied to the u
United States.
The 0th amendment to the constitution
has been pressed with great force, and it
rs impossible not to feel its application to
this point. The accused cannot be truly
said to be Uniformed of the nature and
cause Of ihe accusations, unless the induct-
merit sinai! give him that notice which Mav
reasonably suggest TO him the point on
which the accusation turns, so that he may
know the course to be pursued in his de-
ieucc.
It IS also well worthy of consideration,
that this doctrine 50 far as it respects trea-
ison, IS entirely supported by the operation
OF the common law which is said 10 con-
vert the accessory before the fact into the
principal, and to make the act of the prin-
lpal MS act. The accessory before the fact
IS not said to have levied war.---Ile is not
said 10 Lc guilty under the statue. - But
the common law attaches to him the guilt
of thag fact which he has advised or pro.
cured, and as cantended, makes il his act.
This is the operation Of the common law
not the operation OF the statute VI is AN o.
peration then which can only be performed
where the common law exists 10 perform
liz IT IS the creature Of the common law
and the creature presupposcs il creator
To decide then that this doctrine is apDii-
cable to the United States, would seem L
imply the decision that the United States
as Il nation. have a common law which ere.
ates and defines the punishment Of crime,
Iacccssorial IN their nature. Il would i'm.
ply tic further decision that these aCCesso.
rial crimes are not, in the case of treason
exc,u dcd by the definition OF treason giver
ia the constitution. | Will not pretend that
/ nave not individually IN opinion on thcs,
10 nt3, but it is one which | should give on.
/ y in case absolutely requiring it., unless
could confer respecting il, with the judge,
Of the supreme court.
| have said that this doctrine cannot APP.
ply to the ". S. without implying those &c.
clsions respecting the common law which
have stated, because, should it be true q j.
commended, that the constitutional deiinti
on of treason comprehends him who advi
SEES or procWeS an assemblagc that levic'
war, it would not follow that such adviser
or procurcr might be charged as having
been present ~ the asscmbiage. Ii tht
adviser or procurer is within the dehnitio.
OF levyiug war, and, independent of the u
gency of the common law, does actually lc
vy war, then the advisement or procure
, nent 10 an overt act ofleying war. Ilitb
, the overt act on which he is to be convicted
then it mus, be charged in the Indictment
y flr C can only he cUnv ctcd OH proof of d.
Il. q. 4