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

means for carrying it on it will, prefume be ad.
mites that they within the letter and the fpri,
oil the act Each man has himfelf provided and pre-
pared thoie PARTICULAR means which he has furniled
IL Coi Burr, as was the cafe with Col. Smith, has
iopPiied money for the expedition then money may
De charged as the means provided by him blu, if that
money was advanced to aeconplice its nvenulent
IN means Tor the expedition is the aa of the accom-
Piice, tor which being free agent he is hmfelf ref
pohiioie. The aecnniplice has committed the very
aet which the law furrilhss Has the accuf.d By fug
geuihg or procuring that act, alto committed it
Will not fay how far the rule that penal laws muf
be eontrued nr;ely may be carried without incur
rhy the ceriure OF difregardng the fen(e Of the Lee
giiatsre lstnay however be faely affirmed that the
offence u GENE clearly within the tription of the
| law according TO the common understanding OF the
terms employed, it is punhable under the law
Now to do an act, to advife or procure an act or
TO be connected or leagued with one who does that
act are not the fame in either law language or in COM
mon parlance; and fthey are not the fame, penal
~ afxed to the one is necelfary affixed to
the ether The penalty affixed to the ata
OF providing the means for military e,prdi
ton is not affixed to the act Of adyiiing or pro.
curing thoie means TO be provided or of being
ahocated with the man who has provided them, The
diinction made by the law between ,hefe perlons is
wen isttled and has been frequently urged to
qure farther explanation The one j. prneipal the
other an accefiary. In all mfdemeanors puniil,able
the perion who commits the prohibited ata the one
IS within and the other not within the flatute. In
Palhng the act under confederation, Congrels ebv-
Gully contemplated this diltinGion preiume thar
III Proiecution under the Sd fe6ton for fitting out
Privateer IL would rot be aedged that perlon who
was concerned with the men who actually fired chr
| the privateer. but who performed no aa hm!elf
could be convicted an inditfmen not for BEING
concerned in fitting the privatesr but for actually
hitting her out. Iheie are hatej in that fet9on as
feparate offences.
Ihis dittp9ion taken in the law is well underlood
ano cannot De contidered as overlooked by thoe who
frame penal a9s They cannot be conldered as intend
ing to detribe ore offender when thew detcribe ano
'her and if experience fuggefs defects in the penal
CODE, the leg failure excluvely judges how far thois
deieGis are to be remedied.
While exPounding the terms Of the aa it NAV no,
be imPr"Per TO notice argument advanced by the
Attorney for the United States which was ncpped nv
my ebierving that he had not correctly undcrRood
the opinion delivered in the cafe of reafon He under
ROOD mat opinion asaPproving the doctrine laid down
ny Keeling and Hale that acceIary before the ia q
might plead in bar Of indictment as aeceary thar
he had been acquitted principal, whence it was in
tered that on an Indictment for DOING an a evidence
OF advlng or producing that ACT might be received
was Certainly very far from approving this doctrine
On the contrary declared to contradict every idea
had ever formed the luhjet But if it were COR
rea endeayored to fhow that it could NOT aff.a
that cafe My difapprobation of the doctrine induced
me to LOOK further into it, and my reruaon that it is
not law is confirmed. Hale v Q, e9e fays"ifA
and be indicted of the murder of c, upon their
evidence it appears that committed the fa4 and B
was not Preent but was acctfAry before the fact by
commanding it, fhall be dileharged"
In II. 2. Oh. IS. fec. IT, Hawkins difcnfIes
this iubjes, hows i'll note the contradiction in thof
authorities which maintain the doarine, cites the
oPPoing authorities, and obviouhy approves the OPT
n VIII fs her. 7.
the law never coniders the eonmifion and the pro-
curement OF an act, even where both are criminal,
| as the fame act. !
! cannot therefore coniider means provided by
thoie who are his accomplices in the expedition as
means provided by Col. Burr.
1t the means were provided by order of the accu(ed
by Perions not accompces and not guilty under the
act, the law may be oherwiCc. I ihali not exclude
iuch tettinony. There is however fone doub, whe-
ther the place OF trial fhoud be where the orders were
| given where they were executed
| A common law, if an ad was procured or advifed
at one place and executed another il was doubted
whether The procurer COZ. be tried at either place
becauie the offence complete at either This
difficulty removed by ifatute made in the reivn
| OF Edward 9th. Ii there be tetiSnuny fiewips bv
| orders from the accuied, means were provided in
Virginia by Perion not aecompia :, it may be re-
ce''ed and the quetion refpeang the fcene Of trial
| put in way for final deciion.
He fdSlI'oh WiiGSIleT all the means mutt be
vided before tn. offence defcribed n the na;ute has
been committed relates TO The efcEt rather than tn
the excluilou OF the teAuony. | ihall certainly no,
feJet any violence which ihers that any means 4yyk
P'@TaNa BY easeZfd ia tie pLa-e eba,gcd in be iadi-
msnf
Upon the iuhjea of beginning and fettinr on foo,
military expedition enterprize ii would be uune
e'A~ry at this time to iay any thing were not on
account OF the quelion refpeeing the Introduction Of
| tefinony out OF tn. dinria
| What is an expedition What is an enterprize
An expedition, if we coniult IohnAone !. a
march or voyage with martial intentions" In thi,
ienie 1t does not mean the body which marches bu.
the march itleC The term is however fometn,ss EN-
Poyed TO dedgnste the armament i;fef, as well as
| the movement ut that armament.
An enterpIie is an undertaking Of hazard. an
arduous attempt" The proper meaning then Of this
word alto DEF RIDES the general undertaking aad not
the armament with winch that undertaking i TO b.
accomplished
Tie fra Count in the indictment charges that Burr
began the expedition IN Bannsrh4heti's inand The
and aud Sd thar he ef foot the enterprile in Bsn
] rei..sHetts illud.
II the term expedition is To be taken in It's common
and dire 4 leple, that IS to mean march or yoy-
age with marfll intentions, it began where that
march or voyage begun; and it NUT have been be
! gun ny the aeeuied to bring him within the ACT
II fhe term ae taken in is 6gurative fenre 10 de-
hgnate the armament ;ieli iuHcsd of the movement
ct that armament, thea I cannot readily conceive an
! act which bgius expeditions unlels the fame All
may aio be aid TO provide the means Of an eYoediti