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

convicted.
The opinion does not declare that the perfon
who has performed this remote and minute part
may be indicted for part which was in truth
performed by others, aud convicted on their
overt acts. II amounts to this and nothing
more, that when war is actually levied, not
only thofe who bear arms, but thofe alto who
are leagued in the confpracy and who perform
the various difinct parts which are necefayy for
the profecu,ion. of war, do in the fenie of the
contribution levy war. 1t may politely be the
opinion of the fupreme court that thofe who
procure treafoa and do nothing farther are
guilty under the contitGion ] only fay that
opinion has not yet been given; fill lefa has ii
been indicated that he who advifes, ihall be in
dicted as having performed the fael.
It is then the opieion OF the court that this
indictment can be fupported only by tei.imony
which proves the accufed to have been actually
or copitructively prefrnt when tie anemh'age
took place on BlanncrhafIett's iflsnd, or by the
admifiion of the doctrine that he who procures
an act may be indicted as having performed
that act.
1t is further the opinion of the court that
there is no tettimony whatever which tends to
prove that the accufed was actually con-
ttructively prefent when that ai1emblage did
take place. Indeed the contrary is mott apPa-
rent. With refpect to admitting proof of pro-
curement to ehablilh a charge of actual pre-
fence, the court is of opinion that If this be ad
mifiible in England on an indictment for levy
ing war, which is far from being conceded, it is
admifIible only by virtue of the operation of
the common law upon the ftatute, aud there
fore is not admf1ibIe in this country unlels by
virtue of hmilar operation point far from
being eftabliihed, but on which, for the prefent,
no opinion is given. If, however, this point
be eitabiihed, ttill the procurement mutt be
proved in the fame manner and by the fame
kind of teaimony which would be required to
prove actual prelence.
The fecond point in this divfion of the fub-
iect is the necefity of adducing the record of
the previous conviction of fome one perton who
committed the fact aedged to BE- treafonable.
This point prefuppoies the treaion of the
accufed, if any has been committed, to be &C
editorial in its nature. It's being of this def
cription according to the Britiih authorities,
depends on the prcfence or aofence of the ac-
cufed at the time the fact was committed.
| The doctrine on this iubject is well underfood,
has been mott copiou1y explained, and need
not be repeated. That there is no evidence of
| his actual or legal prefence is point already
difcufied and decided. 1t is then apparent
that, but for the exception to the general prn-
| cipe which is made in cafes of trealon, thofe
who attended at Blsnnerhaf1ett's illand, if that
| atIemblage was fuch as to conittute the crime,
would be principals, and thoie who might re-
ally have cauied that affemblage, although in
\ truth the chief traitors, would in law be accci-
FAIRIES.
1t is fettled principle in the law that the
acceifory cannot be guilty of a greater offence
than his principal. The maxim is, acceGorius
fequitur naturam fui principals the accef-
fory follows the nature of his principal. Hence
refulis the neceflity Of eaabiiihing the guilt OF
the principal before the accefiory can be tried
For the degree of guilt which is incurred by
counfeling or commanding the coPmiiion of a
crime, depends upon the actual commiilioD or
that crime. No man is an accefiory to muir
der unleis the fact has been committed.
The fact can only be elfablilhed in proiecu.
ton againit the perion by whom crime has
been perpetrated. The law fuppofes man
more capable of defending his own conduit
than any other perfon, and will not tolerate that
the guilt of A Ghall be eftabliGhed in profe-
cution againft B. Consequently, if the guilt
of B depends on the guilt of a., "A mutt be con-
veted before can be tried. 1t would exhibit
a monttrous deformity, indeed, in our fyftem, il
b might be executed for being acceGory to a
murder committed by A, and A ihould after.
wards, upon a full trial, be acquitted of the
fact. For this obvious reafon, although the
| punIhment OF principal and accefiory was o.
| rlgInally the fame, and although in many inftan
Geo IL 10 mn thc lame, tne aCceHOry COuid 1T
no cafe be tried before the conviction of hii
principal, nor can he yet be tried previous tc
fuch conviction, unlefs he requires it, or unei,
fpecia proylion to that effect be made by fla
tute.
If then, this was felony, the prifoner at the
bar could not be tried until the crime was eta
bliihed by the conviction of the perfon by
whom it was actually perpetrated.
is the law otherwile in this cafe, becaufe in
treafon all are principals
Let this quefton be anfwered by reafon and
by authority.
! Why is it that in felonies however atrocious
the trial of Hie acceGory can never precede tire
conviction of the prncipals Not becaufe the
one is denominsted the principal and the other
the accefory, for that would be ground or
which great law principle could never itand
Not becaufe there was in fact difference in
the degree of moral guilt, for in the cafe OF
murder committed by hardy villain for a
bride, the perfon plotting the murder and Civ
ing the brbe, is, perhaps, of the two the black.
err criminal; and, were it otherwife, this would
furnifh no argument for precedence in trial.
| What then is the reafon
| 1t has been already given. The legal guilt
of the accehory depends on the guilt of the
principal; & the guilt ofthe principal can only
be efablhhed in protecution sganft himf,lf.
Does not this reafon apply in full force to a
cafe Of treafona
The legal guilt of the perfon who planned
| the afiemblage on BlannerbaGett's inind de.
Ponds, not imply on the criminaty of the pre-