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

Iact charged u, 10 rs evidence of the crime con
ming o' this particular fa2, not as eilabliihin,
the general crime by tiinin6t fact
ne courT; forthr prcfeCution have CHARGED
mote engaged IN the defence with confdcriue
The overt aG as the tresfon, whereas i ourhj
TO ee oon''dcrcd foley as the evidence Of the
treaioa; but the courf,l for the profrcutior
ieern themlelves not to have efficiently advert ed
10 TINS clear principle. that though the over.
"ct may no, be itfe!f the ireafon, i. is the roic
ACT or that treafon which can produce convict
on. II is the fnle point in ifiuc between the
parties. And the cnly divlion Of that point, Il
the exprcf'ion he allowed, which the court is
now examining. is the conftruAive preience of
the prtoner At the fatt charged.
| 10 return ,hrn TO the application Of the cafes.
Had the priioner fet out with the party from
| Beaver Tor BGrnerhaflett'a inand or perhars
had he let out for that place, though no. from
Beaver, and had arrived in the iiland, he would
i nave been pfeent at the Ga6t had tie not sr-
rived IN the iland, but had taken a petition near
enoush 10 Cooperate with thoge on the Gand.
to aflift them in any a6t of hoftiiity, or to aid
them If attacked, the quefion whether he was
cosftruetively preitnt would he a queflon
compounded Of law and fact, which would be
decided by the jury, with the aid of the court,
10 tar as refpedted the law. In this cafe the ac-
cried would have heen of the particular party
ATTEMPTED on the ihand, and would have been
ahoc'ated with them in the particular at of lc-
! vyipg war laid to have been committed on the
! ifland.
Buff he was not with TIE party at any tine
hsfore they reached the iAand If hs did not
JOIN them there, or iHtend 20 Join them there;
if his perfora cooperation in the general plan
was to he afforded e!frwhere, At great deauce,
'in different fate; if the overt acts Of trcafon
TO he Performed by him were to he di:tir6t O.
vert acts; then he was not Of the particular
party attended at B!anuerhafett's inand and
was not conHru6Iiyely pre!ent, aiding aud af.
iiit'ng III tine particular aGt which was there
committed.
The tegin7ouy on this point, 70 far as it has
been delivered, is not equivocal. There is not
only no evidence that the accufed was of the
particular party which attended OF Banner
hahcits Hand, but the whole evidence flows
hc was not cfthat party.
Ia felony :heD, adni,ing the crime to have
been completed on the Hand, and 10 have been
adviied, procured, commanded By the ac-
cu!ed, he wcud have been incon;enably an &C.
ceiiary and not principal.
Bu' in treafOn il is f3id, the law is o,herwife,
becau.e the theatre Of aaien is more extenlive.
The reaicniog applies il England as (tyonelv
as IN the United States. Wbi!e IN - and rs
the family Of Stuart fought TO regain the crown
they had forfeited, the Aruegle was for the whole
Kingdom yet no man vas ever couhGered Az
legally preient at one place. when actually a;
another or as aiding in one tranf, &tjon, while
actually employed in auothSr.
VITA the perfe9 knowledge that the whole
nation may be theatre Of action, the Euglinl
books unite in declaring, that he who counf.Is.
procures or aids treafon, is guilty accefIorially
and io'ely III virtue Of the common Jaw princi-
pie, that what will make man an scccnayy in
felony makes him principal in treaf0n. So
tar from couEdeTiag man as coufructivr'y pre-
lent at every overt act of the general treaton in
which he may have been concerned, the whole
doctrine OF the hooks limits the proof agsinit
him 10 thctc particular overt acts Of leyyng
war with which he is charged.
What would be the ei!13 Of different doc.
trine Clearly that which has been Rated. IfI
"a perion lcvynE war in Kentucky, may be f4io
to be conhrutiively preient and aIembed with
party carrying on war in Virginia. at a great
d'itance from him; then he is prcient 1T every
overt att performed any where be may he
tried IN ANY fate on the continent, where any
overt act has been committed ie may be prov
cd 10 be guilty OF an overt ad laid in The indcf
ment in which he had no perioaal parti. oaiioo.
by proving that he adsIied it,, or that he com.
nttted other acts.
This is, perhaps, too ex;ravasaut to be in
terms maintained. Certainly it cannot be fuD-
ported by the doctrines of the Engiis, law
The opinion OF Judge Patterfon in Muchelrs
cafe has been cited on this point. Dial. 34s.
HE indictment IS rot fpeciaily Rated but
rom the cafe as reported, it NUT have been Ell
Their general for levying var in the county of
Allegheny, and the over; a6 laid NUT have
been the aaembIage of men and lcvying Of war
IN that county; or it NUT have given a parti.
caar detail of the trcaGonable trlnIaft;nns in
that county. The hit fnppoiiicn is the moa
probable but Iet The indictment he n the one
form or the other, and the refu.t is The fame.
The iatfs Of tie cafe are, that large body of
men, OF whom Mitchell was one, aft, mbied at
Braidock S field, in the county ul Allegheny.
Tor the pU'pote of committing acts Of violence
At Ptbburg. That there was afo An aTem.
biaNe at 4 different time at Couches fort, al
which the ptiioner alto attended. The general
and ayowed Object that meeting was to cou.
cert mca,ures for 'ciiting the execution IF
public law. AZ Couchea fort, the reC,'utiop
was taken to attack the houlc OF The injector,
and the body there attended marched TO that
| houie and attacked IT.. l. was proved by the
competent number o. witucnes, that he was at
Couchc5 fort armed, that he offered 10 recon
noitrc the hculs 20 be attacked, tat he rr5f.h-
ell with the niurgcnts towards the houf,,
that he was with them after the atijon attending
the body OF one OF bic comrades who was Xii.
ed IN 1t one wituels Crore poGtivcly that he
was pretsut az the bnruiag o. INC huuft, and q
iecond witucls fajd that g. IAN IN his head that
hc had iscn him there" That doubt G,ould
cXit IN fuch \ cafe as ibe, is nreng evidence Of