Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-29
OPINION
: fsthe Court on the moron to arrest the
evidence. Delivered on
MONDAY, August 81.
TCoNTlNUED.1

a
.shat.his docuiDe, SO far as il respects trea.
son, is entirely supporsedby the operation
of the common law which is said TO convert
.s1s secsssary before the fact into the prin-
cipal. and 20 make theact OF the principal
his act. The. accessory before the fact IS
notsaid 70 have levied war. He Is nor said
10 be eailty underline statute But the COM
moa law attaches 10 him the guilt Of that
fact which he has advised or procured, &
as commended makes II his act This IS
the operation Of the common law, DOT
the operation of :he statute tits an ope.
ration then which can only be performed
where the common law exists TO perform
III. III is the creature OF the common law,
andthe creature prr-supPoses It's creator.
To decide then that this doctrine is appli.
cable 10 the u. S. would seemto imply the
decision that the u. S. as a nation. have
"a common law which creates ADD defines
the punishment Of crimes accessorial IL
their nature. Iswould imply the further
decision thar these accessorlal crimes are
mot. in the case of treason, excluded by
abs dr6aision Of treason given in The cou-
ssi.u.iop. will DOT presend that have
NOT individually 80 opinion on these points,
but ii ia one which should only give in
a case absolutely requiring it, unless |
could concur respecting it, WIKI the judgs
&c of the supreme Coart.
have Said thar this doctrine cannot ap-
ply to the u. S. without implying those
decisions respecting the common law which
4 u .b< Ia
is commended, that the constitutional dshni-
~tion of,reason comprehends him who ad
vises or procuses an assen.bIage that le.
S yies war, il would not follow that such ad
siser or procurer might be charged as hav-
ipg beep pressn. attic assemblagr. Ifihe
adviser or procureris within the definition
of l-yying war, aud independent ct the a.
gency of the commou law, does actually
levy war. then The Amusement or procure
men, is an overt act Of Isrying war. Fir
be the overt act on which be is to be con
sicted, then j, must be charged in the in
dictrens, for he can only be convicted on
proof ofthe overt acts which are charged.
To render this distinction more intelli
gible, let il be recolected that al,ho' il
should be conceded that since the statute
5 ofWilliam and Mary, he who advises or
procures a treason may 10 England be
charged as having committed that treason
by virtue OF the common law operation
whichis said so far as respects the indict.
mentto unite the accessorial TO the princi-
pal offence aud permit them to be charged
as one, yet it can be conceded that
he who.commits one overt act under the
statute of Edward, can be chargedane con.
v;cted on proof of aoo,her overt act. lfihen
I procurement be an overt act otireason
constitution, no man can be convicted for
the procurement under an indictment charg
Ing him with actually assembling what.
ever may be the doctrine OF the common
law in the case Of an accessorial often
der.
1t may not be improper in this place, a.
gain to- advert to,he opinion Of the supreme
court and TO show TIA; il contains nothing
! contrary TO the doctrine nowalaid down.
That opinion IS, has an individual may be
s guilty of treason, who has not appeared,
in arms sgains. his county ;sha, if war be
actually levied, thai is, If q body of men be
actually assembled for the purpose Of eft
feeling by force reasonable object, all
those who perform any part however. ssas-
mute, or however remote from the scene
OF action, and who are actually leagued IN
the general conspiracy are 10 be consider
edas traitors"
This opinion does not touch'the case OF
persop, who advises or procures an as.
semb.agc, and does nothing further. The
advising certainly, and perhaps the procnr.
ing. is moresin the nature OF conspiracy
toievy war. than of the actual lesying OF
war. According TO the opinion. tits not
enough to be leagued IN the conspiracy, and
thar war be levied. hnf if In alsa necessary