The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-16

on the proportions iubmitted to the Court
refpeeting tie charge ~ 7reaj5n.
lInis isa mere Fetch of fSmc of the arguments
that were delivered. I, is fubmittcd on &C.
count Of i's peculiar Importance: not only
from the magnitude of the cafe to which it
relates, but hecaufe the opinion IF the Chicf
Ju,tice II 1t he received as the uuerring hand.
ara OF law, has pointed ont 10 many de,cYs
IN our prsfent laws, and furnihed 70 large
bai's for lsgilA,ion to the next Concr, rs of
the u. S.
The following is indeed mere Retch OF Mr.
Wickham's elaborate argument.
THURSDAY, Augst 90.
Mr.. Wiokham conts nded, that under the
contribution Of the U. S. under the laws of Ems
lind, and under the ufages of courts, il vas i'm
pofhhie to convict the prifoner under this in.
hetmen', as it is admitted he was no, prefert,
where the overt aSt of treafon is fad to have
been committed.
He commended, that no man could commit,
treaton under the contribution, unlsfs he aiquoN,
IN rerion leves war; that thefe words of the
contribution were plain, and that no artificial
roles of contraction could be applied To the
conlduton that IL was new and original
compact OF the people of the U. S. embracinc
their concerns IN the moft extenlive fenfe, and
was not to be conftrued by the rules of par
ticular art or fcience that the rule which was
applied TO the contraction Of the IS fatute of
Edwafd 5lh of England was not to be apnlcd
to IT, eecaute that ftatute was made in reference
to the previous law, whereas the contribution
was OF hyperion dignity, it was made withou,
any iuch reference, aud is intended as A rule 10
be applied to future cafes.
He argued that the oppoitc council nun
contend for an artificial meaning fnch as IRE.
walls IN England, and that in that country all
periens aiding Others in the att of levyinc wa,
are guilty of treafon that tbs propoiition, that
| all are principals in ttcafon is not fettled even
under the Engilf law, to fay the leaf OF it :;
that admit that there are ditFa from Lord Coke
down to that effect, yet that there is not one
Heelfon to this point unlefs fir N. Throgmor-
toms cafe can be called one; and that this is
| 10 contrary TO law, that it cannot be fupported
See ATTRACT of this report in fuckers Black
tone appendix p. 47--and that there was no
Gale where the procurer or alder of treafon
before the fact was convicted or even tried
except Mary Speake's cafe, in Tremain's Pleas
OF the Crown p. which was decided in the
time of James ed before Judge JefFies; how
this queftion was decided does not appear but
that 1T was prefumed no decilion of Jeffries
would be called into precedent that no argu.
ment IN fupPort OF the prime iple controverted
can be drawn from cafes under that branch of
the Enslith Statute. which fpeaks of compaf.
all are principals as the crime itfrlf coniNs in
intention and confaltation alone; that even
admit, shat there are cafes of convictions of
aiders and abettors after the fact, fuch as in 4
state Trials loo I3I 142, and that the fame
principle governs cafes before the fact yet qOBsn
were thofc cafes decided aud by whom Let
Hume anfwer the queftion. HINES Eng. sth
vol. p 2S3 and that thefc cafes might indeed be
precedents, if the gentlemen would chufe to
avail! themfelves ofthem.
MIR. w. commended, that iince the Engiifh
revolution, although writers acknowledge the
principle efabliihed by the above cafes, vet the
courts have decided otherwife that the d-cifi-
ons on the rebellion Of as furniihed the moi
numerous initanccs, and Mere entitled to the
hlgheit refped on account of the learning of
the Judges ard the ability of the counfri :: tina,
there was certainly no partaty in thefe cafes 10
the oCied and yet there never was an attempt
made to convid any one perfon who, aniRed
and harboured the traitors; that the fact of the
Pretender's having RATED an army, marched in.
to the heart of England, defeated rroops &c.
might have been proved by thoufandS; and that
fif this doctrine had been adhered to, il would
only have been necef1ary to charge the overt
act IN fome one County, to have proved, that the
PreteDder marched there, and eltahliihed his
connection with the priioner, in the rebellion
that he courts however had proceeded on con.
trary grounds, and had required proof that the
priioner had perfonally commilted an overt a6t ::
that this was proved by Foaer's Gown law D
9 to from the very terms Of the indictment ::
that the lame appeared in p. 0, and in D. %, Of
the fame book in fir ]. Wedterburn's cafe snd
in ST. Tr. p. COS, in Lord Bamarino's cafe,
who was charged with marching into the CITY
Of Carife: He denied he was there: Lord
Mansfield and other council aedged that he
was there, OF if not there, they relied on other
overt acts {: but not one of them thought of con-
ftru6tive treafon.
MIR. Vic khan commended that ifin opDoft;on
TO thefe decitions the diGta of eminent law writers
could DC quoted, it would only prove that the
DRY lay one way, and practice the other; that
thefe writers had fuccefiively copied each other
tiiat FOR the hiitory OF this opinion, he could re.
fer to Judge fuckers 81. 4th vol. apperdix
note p. n to Il, to flow how error was be-
gotten by error and that another additional
fource Of this miftake was, that, the theoriRs
had traDiplanted into their do6trin, the rn!e
of treafon is computing the kings death, wherr
aiders IN the fra inAance were guiltv: thar
lord Coke who wds fond Of ouaiutrefs of ex
preGion, had laid it down 40 a rule that in the
high,h as wei as in the lowrH offences all are
principals /; which rule il applied TO the loweN
offences, as in afauIt aud battery, was contra
~ to practice and would degenerate into grofs
abfurdity.
MIR. W. commended that if the theory. and
the practice Of EngiinI courts had run together,
II would not have been law in this country, be.
caufe the common law of England, concerning
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