Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-12

lhe DiSlrlct could be given IN evidence a |
SaihSt HIM; Sd. that, if the first point |
should not be sustainaole, no act of an &C |
cessoriai agency could be given in evidence
on TINS indictment, charging the offence OF
aehnS ut the island, and not charging spe-
ciaiiy that the person indicted did the ac-
cesSorla! act 4;h. that, if the foregoing
points should be not sustainable, still, no
evidence OF an accessorial agency could be
gwen, until the record OF the conviction of
al ACTOR in the expedition shoult. have been
produced 5th that the acts on Manner
haSSet3 Island did not amount TO Il proyi-
ing or preparing the means for, or begin
niny or setting on foot military expedite
on there 9th. that no evidence was admis-
siDte Oh conversations or acts of other per-
sons Que OF the presence of col. Burr..
On AL these points MIR. Bsiis dilated ve-
ny extensively, quoting and relying princi-
pH''y upon various parts Of the opinion of
'nc S"i'1 JnSHce, pronounced on the mo-
t!!oh Tor excluding the evidence in the rrea-
son case.
The 9Th point he observed divided itself
into t"o others 1st that there was not =
nlHtnly expedition i'll state of .naturit.
at BfannerhGssct'Sl slant Cd. that if there
was a nilitary expedition in progress
'heTe, Ii was not begun or set on foot there,
nCr were the means provided or prepared
here.
In support of these points, he went into
4 view of the English authorities to shew
mar penal laws must be construed strictly,
nd quoted Hawk. l16 SIS. II So. Leach
80. l<S.-tle commended that to provide OF
prepare the mcaus of military expedite
Oh required the providing OF the entire
means; ana that the means must be ade-
qHGfc TO tie Object in view that the expe-
o'tion must be military one, and to es.
t"o.ISh til'S must have a military character.
ana or5ehzQiion 4; that there was in fact
no assembly of men enrqyed in this mill
taiY expedition, because ii Burr had such
design, the men assembled were not in
formed OF it, and therefore did not meet Eo,.
fhGE fnrEoSe and that no proof of iaien-
'f"n could aid facts in making the means of
military expedition.
! 4he discourse of Mr.. Bolts (of which
his is a brief sketch) was not finished at
the time Of adournment.
he Jury, by consent of parties, were
permitted to go 1t large.
! lhe Court adjourned until Thursday ten
O'Clock.
THURsDAI, September 10.
| MIR. Boits concluded his speech and
was followed by few remarks from Mr..
Martin; in which he chiefly contcnded
thar the Cart AID not the Jl1'y had right
20 judge of the character Of Tie alleged mi
litary expedition, and to determine whe-
ther the law had been violated.
Mr.. HaU, in answer to the first point
made by Mr.. Eats, observed that this court
had already decided in the case oftreason,
that man may be found guilty of Lowing
war without being present at the place
where the war is levied; provided he be
properly indicted
The true ground (said hey of objection
20 the evidence, meant to be taken bv Mr..
Bats, is this; that. .Haron Bnr,. not bav.
ans been present at the time of the offence
charged, the evidence offered must be fy-
refeVant, This is, unquestionably, the on
~ ground Tor excluding evidence. Mere
0GT!ance between the case as charged, and
IS proved, VIII not justify such exclusion.
h",lr the case OF murder, if man be in
eictcd Tor killing another with Il hammer,
and il appears that he killed him with q
| o'oHG are, the evidence is not to be excIu-
ded. But, where evidence offered does NOT
bear upon the subject at all, the court 1,oy
exclude It. For example, where A. is in
dicted for treason in Henrico, evidence
that he had committed treason in NoyfoLk
! would be irrelevant until the offence in Ee1-
RICO had been proved. Such was the deci-
sion ot this court the other day. He here
cited the opinion given on that subject and
ccntended that the court had gone on the
ground OF trrelevaney, not of mere vqJ-i-
Gnce.
He proceeded to argue that the evidence
now offered WAS relevant to the charge IN
the indictment; because its object was f.
prove that Burr was the protector of the
plan and Prov!der Of the means for the
expedition.
IN the treason case he observed that the
indictment had been construed as charrin,,
the prisoner with being present at the place
"here the overt act was alleged but this
Indictment contains no such Charge, either
expressly, Or by implication since B,tr,.
might 6cSin, or set oil foot, or hroyioie f6e
means Of a military expedition at Bia1ucr-
na8Sef, - island without being present. Pre-
Sehce therefore not being expressly stated,
nor anedged by inference, there is not even
variance between the case and the evil
dcuce.
Hit be said, that the Indictment is defec-
tive ~ not stating expressly whether the
defendant was present or absent it nipht
be ground for a motion in arrest of iudg-
meht, but not for Directing to the adnljssi-
lbility Of evidence.
This objection, Mr.. Hay said, was alto.
gether new in a case Of this Kind. Pross-
cuuohs Tor keeping gaming house, for re-
,dlhhg splrtuous liquors at booths or ar
DoFs contrary to law, and for giving money
OF other things to voters, for the purpose Of
nEut seing their votes, had been frpnuert
~ inc law but the Personal hrcssrcc Of the