The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-19

Iy to thc inference ATTEMPTED to he dawn "
MIR. WiSkham from the cafe ct Deacon and
Wedderburup, reported by the fame author.
Other remarks OF the gentleman rnd,g this
head az to acceiloiies being The mere cr,.'ures
of the common law, aud the common law not
exiting in this country, will be more properly
noticed under another head
L hope IL may now be iu1ly coEGdered as
proven that whether we look TO the laws nf
England, or to the contribution of the u. States,
As eXpounded by the rules Of reafAn and of
moral right, or expounded by the fipremc
court of the u. S. the priioner's prelence on
S'aarerhaife;:'s in md at the time OF the overt
atl WAS rot ueceiiary to the conitiu,'or of his
gull, aud therefore that there is nothing IN the
een'lemau's !irf objection TO prohibit the INTRO
juetion OF farther proof.
But if after all, this court llculd he of opini.
that the priioue''s prelence on the il4ud
VS. nee ti1ry TO make this an overt act of war.
Is not TINS qneit,on for the jury The quef.
ton whether there has been an overt aGa of war
mr. not ia a mixed qucition of fltt aud law il
stts queition made by the inue in this cafe:
is the very qnettioa which The Jury are fwora
10 decide. IT, Tor Ills OF ttion that prefruce
is material ngredicn; in tn, cornnrGtion of IT,
act, the court exclude all farther evidence. ti.
| ;h's not apouat 10 laying that we have nct
| proved the cv ri act to the f9tisfaciion of ,S-
| court that che evidence we have introduce,
| aud all We propole o introduce will be inrutF.
| cent To f's's'Y t3e cart of the overt aG And
| VII not 'bf court, hereby, take the pleace Of
| ne lory; to'rita'l them in the very que0cn
which they a'e tworn 10 try ard fnatch il from
them ~ 90 3be de n,a;,s ? Gentlemen. irdeed.
! ~ to give tins quvtton legal attitude hy con.
| ending that other evidence will be irrelevant
until the fact of prefencc mail -e proven bnt.
| hen, IN order to decide this uueiiion in the
| affirmative, the court fNua difune the function
! ~ jury aud FAY that the overt att ia not and
VII MT Ire fiiicisntly proved without it Ru,
irppoit this quelion as TO the neceiiifv Of oce-
| fence, queition OF pure law (; ill il would he
| queition "hich the jury would have a right to
decide; hnce the law a. well as the act is COM
pieatly wit their power. The court may.
indeed, after all the evidence Gall be piyen in.
'truct TIE iiry as TO the law they may inilrn6t
them as 10 what will conGitute an overt al Of
levy'ng war. But ncthing more clearly ibeys
TIE fAvcre'g" power aud cortroul Of the inv
Doth over the law aud fact than this that, even.
after luch iuhfueti1n of the court, the iury nav
| II they chootc decide the cafe In oDpolition to
iuch inttrutfion. do MT fav that they viii
| doit /; or that they ought To do il {: but fay
that they NAV DO it If their conference tbal t,
direct : and fay thiSh by the wa2 Of he wing the
paramount power OF the iu, Y, over the very
qushion now fought 10 he Withdrawn from
them and given 10 the court. con, lude this
point with affirming il as proved tina. actual
p efence was not necclaty to make the prifon-
er principal in the trea(on and if the court
hail think 1t was, that this is A qlelton wAicE
cannot be taken from the jury.
| This objedion therefore furnifhes TO legal
bar to tie intradnttinn Of our evidence
| (Mr. Wiyf'5 Sg1eeeb 10 b. tOnti.ps!J