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

al makes the guilt of the aiIemblagc his guilt,
aud in the other cafe the procurement by the
individual makes the guilt OF the aGembiage his
guilt, then prefepce and procurement are equal
ly component parts of the overt act, and equal
~ require two witnefcs.
Collateral points may, fay the books, be
proved according to the courfe of the common
law, but is this collateral poin, Is the fact
without which the accufed does not participate
in the guilt of the ailemblage, if it was guilty,
a collateral point This cannot be. The
preferce of the party, where Preience is ncoei-
FAIRY, being part of the overt act, mutt hc po-
fitively proved by two witneiies. No preiump.
tive evidence no facts from which preieDce
may he conectured or Inferred, will fatisfy the
con0itution and the law. If procurement take
the place of prefence, aud become part of the o.
vert act, then no preiumptive evidence, no facts
from which the procurement may be conjectur-
ed or inferred, can fatisfy the contribution and
the law. The mind is not to be led TO the con-
cluiion that the individual was prefent by train
OF conjectures, inferrces, or of reaioning
the fact muft be proved by two witneiles. Mel
Their where procurement fupplies the want of
prefence, is the mind to be conducted TO the
conculion that the accufed procured the al
fembly, by train of conjectures,F of inferen-
ces, or of reaioning; the fact itislf mutt be
proved by two witneiles, and mutt have been
committed within the diftrict.
If i; be Esid that the adyiiing or procurement
of treafon is fccret trauiaction which can
fcarcey ever be proved in the manner required
| by this opinion the anfwer which will readi-
ly tuggeft itfelfis, that the difficulty of proving
fact will not juffify conviction without proof.
Certainly it will not juitify conviction without
a direct aud poGtiye wtnefs in cafe where the
c1nf u ion requires two. The more correct
Inference from this Circumstance would feem to
~. tb,tt he al Of he ie
| the corititutional definition Of the crime. To
| advife or procure a treafon is in the nature of
confpiriny or plotting treafoD, which is not trea-
| fon in itfelf.
| IF then the doctrines of Keeling, Hale, and
| EAT, are to be undcrtoed in the fenfc in which
they are pre(led by the council for the profecu-
ton, and are applicable in the U. States the
| fact that The accufed procured the affemblage
or Blannerhaiieii's illand mutt be proved, not
circumfantially, but poftively by two witnef.
fcs, to charge him with that aflemblage. But
there are itill other mott important CONFEDERATE
ons which NUT be well weighed before this doc
| trine can be applied to the United States.
The Sth amendment to the contribution has
been prefied with great force, & it is impoffiblc
not to feel its application to this point. The
accufed cannot be truly faid to be Uniformed
| of the nature and caufe of the accufation," I'M
leis the Indictment fhall give him that notice
which may reafonably fuggef to him the point
| on which the accufation turns, TO that he may
know the courte to be purified in his defence.
1t is alto well worthy of confederation, that
this doctrine 10 far as 1t refpects treafon, is
ltirely Imported by the operation of the COM
mon law which is faid TO convert the acceffary
before the fact into the principal, and TO make
the act of the principal his act. The accefary
before the fact is not laid to have levied war;
He is not faid to be guilty under the ftatute.-
But the common law attaches to him the guilt
of that fact which he has adviied or procured,
and as commended, makes it his act. This is the
operation of the common law, not the operati.
on of the tatute. 1t is an operation then which
can only be performed where the common law
exits TO perform II. Ii rs the creature of the
common law, and the creature prefuppofss it,
creator. To decide then that this doctrine is
| applicable to the u. Strtes, would feem to i'm
ply the decihon that the u. States, as a nation,
have a common law which creates and defines
the punifhment of Crimes accefiorial in their
nature. 1t would imply the further decifou
that theie acceforial crimes are not, in the cafe
of treafon, excluded by the definition of trea.
fon given in the contribution. l will not pre-
tend that have not individually an opinion or
tbefe points, bat it is one which lhould give on.
lyn cafe abfolutely requiring it, unlcis could
confer respecting it, with the judges of the fu.
preme court.
i have laid that this doctrine cannot apply
to the u. S. without implying thofe decilions
! respecting the common law which have ftated,
5ecaufe, ihould it be true as is coetended, that
the constitutional definition of treafon compre-
bends him who adviles or procures an afiem.
blsge that levies war, it would not follow that
fuch adyier or procurcr might be charged as
having been preient at the alIemblage. Ii the
advfer procurer is within the definition of
leyying war, and, independent of the agency of
the common law, does actually levy war, then
the advifemeHt or procurement is an overt act
| of levying war. Ifit be the overt act on which
| he is to be convicted, then it muft be charged
| in the Indictment, for he can only be convicted
on proof of the overt acts which are charged.
| To render this diftinction more ineligible,
let it be recoiIe6ted that although it i,ould be
conceded that fine the tatute of William and
Mary, he who advifes or procures a treafon may
in England be charged as having committed that
treaion by virtue of the common law operation
which is faid, 70 far as refpects the indictment.
to unite the accefiorial to the principal offence
and permit them to be charged as one vet il
can never be conceded that he who commits
one overt aSt under the fatute of Edward, can
be charged and convicted on proof of another
| overt ACT. If tken procurement be an overt a0
| OF treaiou under the contribution, no man can
be convicted for the procurement under an in
dictment charging him with actually afIem-
| bling whatever may be tie doctrine of the
| common law il the cafe of an accenorial Often
| der.
II nnau nct he -. 49,.