Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-10-01
OPINION
or The Court on the motion to arrest the
evidence. Delivered on
Is MONDAY, August 81.
TcoNcLuDEp Z

\ 9Oncf With tSvytub VA So15 stA'Sos 49, -
aud alledges 40 overt act OF levying war.
: That Overt ACT mast be.prcsed, according
10 the mandates CT the constitution and OF
the act ot congress, by TWO Witnesses. IL
is not proved By a single witness The.
presence Of abe accused has been stated. to.
be an essential component part of the overt.
acrin fhisindictmrns, unless the common
law principle respecting accessories should
render it unnecessary an1 there IS not
only no witness who has proved his actual
or legal presence, but the fact of his abb
scncc is not conuovertcd. The counsel
for the prosecution offer 10 give 10 evidence
subsequent Transactions, at diaereat place,
aud 10 different state, 10 orderto prove
what? The Overt act laid 10 the indictment!
That the prisoner was one OF those who as.
sembled at Blannerhasseu's island No
that is DOT alledged. Ais well known thar
such testimony is not competent to esta-
-blish such fact. The CONSTITUTION & law
require that the fact sfiosld be established
by two witnesses, not by the establishment
of other facts from which the jury might
reason to this fact. The testimony then is
cot relevant. If it Gao be Introduced, it
is only 10 the character of corroboratiYe or
con6r atory. testimony, after the cvertact
has been proved BY two witnesses, 10 such
manner lha. the question of FACT ought to-
be left with the jory. The conclusion that
in this state of thugs 90 testimony can be
admissible, $50 inevitable, that the coun,
sci for the u. S. could not resis. it. do
not understand .hsm to deny, that if the
overt act be NOT proved by two wiinessssso
as to be submitted TO the jury, THAI all oth-r
testimony must be irrelcvans, because no
other testimony can prove the act. Now
an assemblsge on Blannerhassstt's island is
proved BY the requisite number OF wIspiSSiat
-zsss, and SIS rT.h thar assemblage amounted
TO a lcvyiug of war, bur the presence ofthe
accused at that assemblage being 90 where
alledged except 10 the indlctment. the overt
y actis not proved by single witness, and
of conss qucnce all other testimony must be
irrelevant.
The only difference between this mo.
tiou as made, and the motion IN the form
which the counsel for the United States
would admit 10 be regular is, this: It is
now general for the rejection of all tes.i-
noDy. II might be particular with sespeci
10 each witness adduced. But can this
be wished or can il be deemed necessary
IF enough is proved 20 show that the in.
! dictment cannot be supported. and that
20 testimony unless it be of that descrip.
tion which toe attorney for the o. S. de-
clares himself TO possess, can be relevant,
why should question be taken on each
witness
The opinion of this court 90 the order
ofstestimony has Frequently been adysr,ed
TO as deciding this question against the
motion.
If contradiction between the two Cpl.
Mons does exist, the court cannot perceive
II. Il was said that levy ing war is an act
compounded Of law and fact, of which The
jury aided by the court must judge. 10
that declaration the court still adheres.
It was said thar if the overt act was zoe
proved by two witnesses, no testimony IN
its nature corroborasive or con6rmatory,
vas admissible or could be relevant
From thar declaration there is certainly
ne departure. /, has been asked, 10 allu.
sion to the present case, if general com.
manding an army should detach troops for
distant service, would the men compos.
ing that detachment be traitors, and would
the commander ia chief escape punish.
ment
lie. the opinion which has been given
answer this question. Appearing as the
head of an army would, according TO this
opinion. be an overt act of levying war.
It Is not pretended that he would not be
punishable for these acts, it is only said
that ne may be tried and convicted on his
own acts, IN the state where those acts