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

law, he proceeded 10 conGder the meeting at
Conches. the immediate rnarchin, ~ N.yill, e
. route, ard The attack ~ burning Of TIE iout.,
- one tranfa6ion. Mitchell was proved ~
more than two pOfiiive wincCes to have been
!" !Hat trSniac:ion, TO have taken an ae;iye part
It, and the judge declaretiit to be uurectfs-
/ fy thar MI iiouid have feen him at the fame
! time and place.
But tuppoie not hng'e wtaefs had proved
Mitchell TO have heeu at Couches. or on the
march, or at Nevie's. Surpoie he hat, been
al the time notoriouGy abfcut in d ffsrent rate
IAN 1t he believed by any perlnn VIII obicrves
the caution with which Judge PatterI.n reuuir-
ca the constitutional proof of two vitnelfes 10
! the lame overt act, that he would have f,id
! Mitchell was conRrrflively prefcrt, and might
on mat fralniRg of legal f6iion, be found,
Guilty or treaton: Had he delivered f,ich
nm opinion what would have been Ire language
81 this country refpeaing it Had be given
this opinion, it would have required all the cor
rectnet5 of his life to lrike His name from, that
bloody lii in which the name of JeEIies is en-
rolled.
But to climate the opnor in liitchel's cac.,
let It's circumstances he Transferred 10 Burr;
cafe SupPcfe the body oil men antmblea i,
banrsrhahet's iiland lad preyicuny mot at
iornc othcr place in he fame county. and ,hae
Burr had been proved 30 he with them hv four
witneGrs: That the refolulior to march -
Bannerhati, tt's ifaud for trsaforable r,IYroic
mad been there taken; that he had been tscu
on the march with them /; that ore wiirels bad
Teen him on the iil7nd, that another thought
lie had ieen him there that he had been FEN
with the party directly after leaving The il,rd:
that this indictment had charged the levyirg.
ct war IN Wood county generally tie CATS
Wonic then have been prccjfoiy parallel, and
the deci.ons would have been the GANG.
thoriy then, the prfoner at the har was p,i,her
legally nor actually preient at Bl,nnfrb,t;.,t,,
Iiidnd and the court is flrongly inclined TO The
opinion that without proving aH actual or legal
Preience by two witrelts, the overt an laid in
this dictment cannot he proved
Fut this opinion s controveited on two
grounds.
The fiji is, that the Indictment does not
charge the prifone. to have been prefsnt.
The fscond, that although lie was abfeDt.
yet, Vt he caufed the sGcmbage, he may be in.
diced as beiEg prefent, and convicted on e.i.
dence that he caufsd the trealonab'e aGf.
Tie firit petition is TO he decided by the in
dittment iifelf. The court underfands the
allegation differently from the attorney for the
U. States The court unterGauds it TO BE d.
rettly charged, that the prilouer did an.rnil.
with the multitude and did march with then.
Nothing Will mo'c clearly t,G this corfruE iioa
thal putting The cafe intoa illape which it may
poHloiy take. SGcpofc the law to he. ,has ~.
indictment would tie defective unlers II aIjeda.
cd the preie"ce ni the perion ndiGed ?. thr ~
OF iTeaion. IT upon ipccii verde, raGs G.sl
be found which amounted 70 levyng OF wa.
by the accued, and his counrel fl.opld iof,t
I hat he could rot he condemned becapC. tbe.
Indictment was defective in not charging .lgr
ne was hln,ielf ore of the alIer blsee wiz, i
&C con'I,,"'ed Inc tre3ion, or hecaufe it alleged
the procurement de,ettively, would the 2. :or.
ney admit this corffuttion of lis indiE.rcor
to be correti an perfuaded that he wov,d
not, and that lie ought not tc make fucb ? COZ,
ce'hon. II, after a veIdi4, the in6i6lo,rr.
ought TO De cuTHiCtd to a;:sdge that tie--.
ioner was one Of the aftmhlage at Blanner,,si.
ied'' iiiand, it ought to he 70 conGrurt, H. ~.
but TINS IS unimportant, for if the Indictment
ai!edgea that the priloner procured the al r.
biass, that procurement becomes part of the C..
vert act and NUT be proved as will be hcan
hereafter.
The q petition is founded on Hale OK.
9Ss az /. Err 1877.
While declare that this doctrine CONRAD "a
every idea had ever entertained CT the iui,;
OF indictments, huce it admits that ouc ,g.
may be hated and very different CAT. nay L..
proved. will acknowledge that it is cour t.
nanced hy the authorities adduced in iisfr
pert. To council or advife trcaroaatlc 4.
''"'o'dGSs dId 10 ne one OF mat aitSngt l. a..
are certainly diftinG atls. and therefore or.is
not TO be charged as the fame al. The pr. AT
objection to this mode Of proceeding is, tn
the proof efenlia!ly varies from, the charye j.,
tie Character and offence of the offence, and I'm
the teitimony by which the acculed is 10 de-
iend himfslf. 1hefe dieta OF Lord Hale the
tore. taken III the extent in which they arci,-
dertood by the council for the u. S. fscm TO he
repugBant TO the declarations we Gnd cvfrv
where, that an overt ad NUT I've laid, and nuf
Dc proved. No cafe is cited by Hale in Glr-
port OF them. and | am Grongly inclined ta
the Opinion that, had the public received his
corcded, ritead OF his original manuGcrj,f.
they would, IT not expungod, have been rcNra:u
cd IN their application TO cafes cf pariicu4,.
delcrPtion. Lad down generally, aud applied
universally to all cafes uf treaiou. they ale re-
pugnant 10 the principles Tor which H1lc con-
tcnds, for which all the elementary writers cuu-
tend, and frors which courts have in no caf-,
either directly reported or referred to in the
books, ever departed. Theft principles are. that
the Indictment nult give notice Of the offence,
that The acculed is only bound 20 anfwer the
particular charge which the indictment con-
tains. and that the overt a6t laid stbat particu-
lar charge. Under fuch circumstances, II is on
W doing iuftce TO Hale 20 examine his dida 81
it they will admit of being underGoej IN 4 IL
ni'ed isnfe, not repuEnant o his own doctrines,
nor to the general principie9 Of law, to UNDER
ttand them IN that fenfc.
a. Il.