The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-26

head, and srcertsia ti,ere how much ground Il
covered what was the nature of the treafon,
what its extent and limits. do not fpeak of
common law treafons at large. .hut this particu-
lar trea'oD ofleyyng war ii we have right 10
go to the common law for this purpof., we
ihall dif;over that it comprehended all who were
lragued in the genera! copfpiracy, whether they
themfelyes Actually levied the war or cau!et: il
to be levied by ohers.-I fubmit this idea to
the court not as one which have had tme 20
weigh & digett; but as one which they may per-
haps find not unworthy of confederation. Rat
let me go iti!l farther in my adiniions let ne
admit not only that accsiiories are the creatures
OF the common law, but afo that the common
law is not IN force in this country, ana further
that our ita,u,e does not comprehend accelio-
ries; fill before the prifoner Can avail, himfrlf
of thefe admlions, it muft be fhewn that he
is an accefory: or in other words that the part
which he bare in this treafon is flch as would
haze made him an accelIary in felony. Gen.
tlemen f.y that all are acceiIar;es who are
not actually prefent at the offence: We on
the contrary contend that even in inferior fclo.
mes man may he principal withou. actual
preience. Let us examine this quehion. The
la" takes diitin6tion between actual and legal
preience. man may be legally prefent, al
though actually abient; and, even in felony, k.
gal prefence makes man as much principal
as at7aai prefence. / beg leave TO introduce A
ferries of cafes which go to unfold and eitahIiih
this d'ftinttion and l viii! preface them with
this remark. that Won will find, in the prosrcf,
of thefe cafes, the fphere of legal prcftnce per-
petualiy extending i,felf in proportion to the
nature of the crime and the extent of theatre
which 1t requires for its preparation. ,ro-
coed to lay the cafes before you. Hale's p.
c. 4S9--"i it divers Perfons come to make an af-
fray, &c. and are of the fame party and come
INTO the fame aoufe, but are in frveral rooms of
toe lame houfe and one he kilcd in one of the
rooms. thoie that are of that party and that
come for that pnrpofe, tho in the other rooms
OF the fame houfs, fhall be fad to be prefent."
Here the houfe is the theatre, and it is required
that thofe who are to be implicated as princ-
pals ihall be in the other rooms of the fame
houie. The next is the cafe of the lord Dacre,
listed in the fame page: it is this sc The lord
Dacre acd divers others came to Zeal deer in the
park OF one Pelham; hayden one Of the Com
pany killed the keeper in the park, the lord d A.
ere and the rett of the company being in other
parts OF the park, it was ruled that it was MUIR
der IN them all, and they died for it, Here as
the park was the theatre of the meditated crime
the fcalc of proximity is enlarged, and it was
enough that the lord Dacre and his affociates
were in the fame park to implicate them in the
guilt. The next is Pudfey's cafe which is thus
tated, Ha!e's P. C. 5s4: Pudrey and two
others, viz. A and B afault c to rob him in the
high way, but c efcapes by flight, and as they
were afiaultins him, A rides from Pudfey and
and aflaults d, out of the view of Pudfey and
B, and takes from him dagger by robbery, and
came back to Pudfey and B, and for this Pud.
ley was indicted and convicted of robbery
though be a6snted not to rbe robbery of ID, nei-
THE, aoas done in bis Viezv; beca1fe they
were all there attended to commit robbery,
and nf he IN, a.,
time" Here as the highway and the whole
foret were the fcene of action, a fill efs degree
OF proximity was required than in either of the
proceeding cafes, and indeed no limit of proxi-
NIFTY is ftated at all. But this cafe of Pudfey is
'rrehitibly ftrong in another point of view and
contains principle which covers the cafe at
bar completely; that principle is this Pudfey
and his colleagues were leasued for the general
Purpofe OF robbing; they went out upon this
purpoie; and although Pudfey was not only sb-
/e"t at the particular al ofro66ing ID, bit gaze
no G6ent TO that particular 1a, yet he was in.
VOWED in the guilt of it and fuffered according
W: The fame author, page S37, contains cafe
which rs, II poiti5le, fill hronger TO the fame
Purpofe: It is the cafe of two men who 90 out
for the PurPofe of robbing on the highway or
committing burglary, although one only com.
NIT the offence, aud the other, 70 far from being
Preient, is actually engaged in the preparation
vi olfTrent CRIME at different place, yet this
other is equally involved in the offence commit
ted by the hrf. Hence it is not a9aal preisnee
which makes principal in felony it is merely
their going forth Ieagued in the fame general
deiIgn, and the Willingness to cooperate for eff.
fecting the common purpofe. Foher 1880,
thus treats the fubjea-" When the law requr.
eth the preience of the accomplice at the per-
probation Of the fact in order to render him
principal, it doth not require ftrict, actual i'm
mediate prefence, fuch a preftnce as would
make him an eye ear witneis of what paffeth.
Several Perlons fet ont together upon one COM
mon defgn, be it murder other felony or for
any other purpofe unlawful in tfelf, and eaeb
fakstb THE poR GGigneE him; fome to commit
the fact, others to watch at proper alliances &
tations to prevent q furprize, or to favour if
need be, TIE rjfape Of t62fe qVko are more imue.
diafely engaged: They are all, provided tn, fact
be committed, in the eye of the law prefent at
1t for it qva5 made common tanjc zviib tbem
each man operated in biz fation tosVard5 THE
/a1ne common e1dj md the part each man Took
fesded TO gi4'e continuance, encouragement, and
brofet7ion TO fbe zubOIe gang, and to eaIure fbe
Here<5 eftbeir common enterprise" The reafon
or the law is The foul of the law. What is the
reaion then which according to FoRer, confti
tutes this legal prefcnce ut is, that the eapfe
IS a common caufe that each man Operates in
MS tation towards the fame common end that
INC part each man takes, tends to give counte
nance, encouragement, and protection to the
whole gang, and TO enfure the fuccefs of their
common enterprise. Whofoever, in any crime
performs a part within this dercr;,,;on -,