Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-28
OPINION
6 or The CoHrf on The snotion to arrest me
EVIDENCE. Dssivered on
AIoNpAzs August 8 1.
TCoNwINUEp. I

tsl}N- NO 81. *
But Suppose The law 20 be as II ls con
tendSdby The counsel for the UoisedStales
Suoposs an ipdsctment charging an ind:-.
xiiuzl with personally assembling among
Others andihus lesYing war, may be
fed with the proof that he caused the as
srmblage. What effect viii thlslaw have
upon this esse
rae goil,of the accused, ifshere be any
unilr. does NOT consist 10 the assembssgr
FOR. he wssnot member GIFT. The sim.
ple fac, of assembling 20 more Affects one
absert rnan Than another. His guilt then
cousis,s ia procuring the assemblage, and
open this fact depends his eriminalily. ---
The proof relative 10 the character OF an
ssse mblsge mus, be the same whether a
man be present or absent Ingeneral. to
charge sny individual with the guilt ofan
asse snb!aee, the fac, of his presence muss
be proved.
If then the procsremens oc substituted
Ia the place Of presence. does II not also
constitute 40 essential partaf the overt act
-. ust il not also be proved Must !.
not be proved in the same mannner thar
xnre ssuce must be proved Fin one case
shr .; essence of the individual makes the
Gull, Of the asse mblage his guilt, then the
presence aud the procurement are equally
component parts of the overt act, and E.
ssualIy re qaire two Witnesses.
Collateral points may, say the books, De
.proyed according 10 the course OF the COM
mon law, but is his collateral Poin.ss Is
he facr without which The accused does
NOT participate ia the guilt OF the asseUn-
blage,af twas guilty, colla'ereIpoin; ::
This canuosbe. Thepressnce OF the party,
where presence is necessary, being a part
Of the overt act, must be positively proved
fy TWO witnesses Nopresump'ive evidences,
no facts from which pressnce may be con
occurred or inferred, will satisfy the con.
s,;,utiou and the law. If procurement
rake the place Of presence and become
bar. f,he overt act, then no presumptive
evidence, no facts from which the procur.
,snent may be coniectured or Inferred can
satisfy the constitution and the law. The
mind is TO be led TO ths conclusion thatthe
iindisidual was present. by train OF con,
lectures, or differences, or OF reasoning -
The fact mus. be proved by two witnesses.
Neither where procurement supplies the
want of presence, is The mind to be con-
Quoted to the conclusion that the accused
procured the assembly, by a train OF COD
lectures, of differences, or Of reasonings,
The fact itself must be proved BY. two wit
nesses, aud must have beea committed
within the district.
If il be said that the adv ising or pro.
care n,ent of treason is secret transaction
which can scarcely ever be proved In the
manner reqaired by this opinion; the an.
swer which will readily suggest 'tseif,'s,
tina. the dificnltysof proving a fact will nos
Justify conviction without proof. Certainly
il will not justify conviction without dl.
rect and positive witness 10 9 case where
the constitution requires two. The more
correct Inference from this circumstance
would ace N 10 be, that the advising OF the
fact is NOT within the constitutional dehni.
lion uf The crime. To advise or procure
a reason IS In the nature of conspiring or
plotting treason, which is NOT treason OF
itself.
If then the .doc.rinesof Keeling. Hale
anS East, are to be understood in the sense
in which they are pressed by the counsel
for the prosecutions, and are applicable IN
the u. S.; the fact that the accused pro-.
cured the assemblage on Blannerhassett's
island mus, be proved. not circumstansially
but positively by two witnesses, TO charge
him With that assemblsge. But there are
still other most important considerations
(Which must be we'll weighed before this
doctrine can be applied TO the U. S.
The 9th amend ment to the constitution
has been pressed with great force. andls
Is impossible not to feel It's application TO.
this point. The accused cannot be truly
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