Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-19

IA tue Cases TO be founu IN the DoOSS &C
the same point. Let them be applied 70
that under consideration.
The whole treason laid in this indict-
ment is the levying of war in Btannerha5-
sets island, and the whole question 90 which
the enquiry of the court is now directed is
whether the prisoner was legally present
at thai Gact.
( say this is the whole question because
tie prisoner can only be convic, ed on the
overt act laid in the indictment With res
pect to this prosecution it is as if no other
overt act existed. If ether overt acts can
be enquired into, il is for the sole purpose
of proving the particular fact charged it
IS as evidence of the crime consisting ct
his particular fact, not as establishing the
general crime by a distinct fact.
! The counsel for the prosecution have
charged those engaged in the defence with
considering the overt act as the treason,
whereas it ought to be considered solely as
! the evidence of the treason but the coun-
sci for the prosecution seem themselves
not to have sufficiently ativerted to this
clear principle, that though the overt act
may not be itself the treason, it is the sole
act of that treason which can produce con-
victipn. 1t is the sole point in issue between
the paroles. And the only division of that
point, if the expression be allowed, which
the court is now examining, is the construc-
tive presence of the prisoner at the fact
charged.
To return then 10 the application of the
cases.
| Had The prisoner set out with the party
| from Beaver for Blannerh assets island, or
perhaps hat he set out for that place, tho
not from Beaver, ard had arrived in the
! island, he would have been present at the
Fact; had he not arrived in the island, but
had taken position near enough to co-o-
perate with those on the island, 10 assist
them in any act of hostility, or to aid them
! If attacked, the question whetlleF he was
constructivcly present would he question
compounded of law and fact, which would
| he decided by the jury, with the aid OF
the court, 80 far as respected the law
in this case the accused would have been
OF the particular party assembled on the
Eislrnd, and wauld have been associated
I with them in the particular act Of lovyipg
4 war said TO hare been committed on the
island.
But il he was not with the party at any
time before they reached the island If lie
did not ioin them there, or intend to JOIN
them there /; il his personal cooperation III
the general plan was to be afforded else
where, at great distance, in different
Estate II the overt acts of treason 20 he
performed BY him were tObe distinct over t
acts then he was not of the particular par
W assembled at BIannerhasset's island, and
was not constructivey present, aiding and
assisting in the particular act WHICH was
Iyhere committed.
The testimony on this point, so far as it
has been delivered, is not equivocal-
There is not only no evidence that the ac-
/
semhled ON Blanncrhasset'5 island, but the
whole evidence shows he was not OF that
party.
In felony then, admitting the crime to
have been completed en- the island, and TO
have been advised, procured, or comman-
dod by the accused, he would have been
incontestably an acces siry and not prin-
cipal.
But in treason it is said, the law is o.
otherwise, because the theatre Of action is
more extensive.
Tine reasoning applies in England as
strongly as in the United States While in
Is and rs the family of Stuart fought to
regain the crown they had forfeited, the
struggle was for the whole kingdom vet
norman was ever considered as legally pre-.
sent at one place, when actually at another
:! or as aiding in one trans ctloD, while actu.
ally employed IN anOiher.
With the perfect knowledge that the
whole nation may be the theatre of action
the English books unite in declaring, that
ne who couussls, procures or aids treason
is guilty aCcessorially and solely in virtue
Of the common law principle, that what
vii! make a man an accessory in c ony
makes him primo. pal III treason. So ftI
from considering a man as constructiycly
Ipresent az every overt act OF the general
Jtrcason in which he may have been con.
ccrncd, the whole doctrine of the books H.
b ruits the proofs against him TO those parti.
cular overt acts Of lcvying war with which
he charged.
What would be the effect Of dif'eren
doctrine ? Clearly tnat which has bCCi
stated. If person levying war IN Ken.
lucky, may be said % be Constructiveil
present and assembled with a party car
. rying Oh war IN Virginia, at a great DIS
b lance from him then he IS present at eve
ry overt act performed any whore he ma,
be tried iu a state on the continent, Wher,
b any overt act had been committed M
may be proved to be guilty e sn overt &C
> laid la tGc indictment IN which he had hr
, personal participation, by proving that h,
e advised IL, or that he Committed othc
b lacts.
. Thisis, perhaps, too extravagant to 81
/. Tin terms maintained Certainly It cauno
) be supported by the doctrines OF the Eng
= lish law.
E The opinion Of Judge Paterson in Nit
T. Chell's case has been cited Oh tins point -