Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-19
Latest Proceedings.
Thursday September 10.
fllzr. Hay Is argument eoneladed. ]

\ 81
! Tnthe treason case, the Indictment charg'
! ed the prisoner wl.h being present az the
acts done onthe island. Z.
There is manifest difference between
| this and the indictment in the treasoa case.
( Ia the latter, the Indictment charged the
prisoner with being present. But IN this
! Indictment, there is morning which either
! expressly OF by implication proves him TO
| be presens. Burr might begin or set on
| foot, provide or prepare the means a ami,
| litary expedition a, Blannerhsssest's asiand,
without being present Thee mefSbant
| 10 Philadelphia might prepare the msSns OF
an expedition in New York; he might en-
lis, me By boun,y and even equip vessel
for carrying them to the West Indies
without once stirring from his compiling
house.
Presence, therefore, not being express
! " stated, nor even alledged by Inference,
there is not even variance between the
| case and the evidence. If there was, il
would be no ground for exclusion. 1t it
be said that the indictment is defective In
not stating expressly whether he was pre-.
sen. or absent, it might be good reason
for a motion in arrest, but not tor the tx.
/ cusion Of evidence. This objection as to
| the variance is entirely new. Ia the cases
Of indicting man for keeping gaming
house; of retailing spirituous liquors with
out license; or tor providing mea, and
/ drink for voters, 1t is not necessary to
prove The presence OF the accused; and
such defect is no ground of objection.
But if,he defendant was charged expressly
10 have been present, in this case, stub he
might be convicted, though the evidence
. proved him to be absenl because 10 this
case 90 proof Ut an overt act is required.
AS 10 Mr.. Bo,ls's second proposition,
that 20 evidence Of facts done GU, Of the
dis,ric, was admissible, this had even b en-
settled in the treason case for it alter
giving evidence of an overt act OF treason
on Blsnnerhasses's island, YOU can give ex-
plauasory and con6rmatorv evidence from
another district, a fortioyi can It be done
in the pressu, occasion.
AS TO Mr.. Bosts's Sd proposition, shat
no evidence of accessorial agency Can be
given, until the guilt of the principal be
proved by record; it may be answered,
thar the accused himself is charged as the
offender; thar the persons supposed to be
principals are merely means, the providing
of which constitutes his guilt; that in trea.
son everv member of an assembly perform.
| ing an overt act is a9raitor, bu, ia this case,
| the psrsons called principals, are not sup.
posed to have legal guilt under this act,
because they have not begun and set on
foot, or provided the means of military
| expedition and those only who have had
agency 10 the scheme, have begun and Get
| it an foot.
TIE ,Ghief yastice here interrupted Mr..
HAY, aud said that he seemed to have mia.
understood .heargunent OF the opposite
counsel. The principals to whom sney al
luded were not the men who were enlis,ed,
blu, the agents who had enlisted these men,
and purchased arms and provisions.
Mr.. Hay replied, that he. should regret
| 70 see such doctrine ever established in
this country; doctrine which was calcu.
lated 10 save able, intriguing and artful
men, from the penalties OF their ambition,
and 10 expose their poor and humble a.
gents to destruction, The persons who
enlisted men and purchased arms, might
/ be completely ignorant of the uses 20
which they were to be applied, aud YET
by this doctrine they were 10 be treated as
the principals.
Mr.. Hay con,i5ued & observed. that this
! Sd objection Of Mr.. Bot,s's had not been
taken by the able and jealous counsel ia
! the cases OF Ogden and Smith, and that
a. all events this was a question Of law
and Of fact and proper for the considera.
ton of the jury.
Mr.. Hay contsnded that the 9Th propo.