Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-23

trire be excluded, thlS branCh OK IL may |
not nc directly applicable TO trcasons COM
united within the United States. Ii the |
crime of advising or procuring a levying |
of war be within The constitutional dehni. !
ton of treason, then he who advises or |
procures il must be indicted on the very !
fact, and the question whether the treason !
ableness of the act may be decided IN the !
first instance in the trial ofhim who procur- /,
ed it, or must be decided in the trial OF one !
who committed it, will depend upon the
reason, as it respects the law of evidence,
which produced the British decisions with
regard to the trial of principal and acces-
81 ~, rather than on the positive authority
ofthnse decisions.
This question is not essential i'm the pre-
sent case, because if the crime be within
the constitutional definition, it is an overt
act of levying war, and to produce con-
viCtion ought to have been charged in the
Indictment.
The law of the case being thus far set
tied, what ought to be the decision of the
court on the present motion? Ought the
court to set and hear testimony which cam
not affect the prisoner, or ought tie court
to arrest that testimony On this question
much has been said--Inuch that MAY per-
haps be ascribcd TO Il miscuncept;on of the
point really under consideration The mo-
ton has been treated as motion confess
sedly made to stop relevant testimony, .nd
in the course of the argument, il has been
repeatedly stated by those who oppose The
motion, that irrelevant testimony NAV and
ought to he stepped. That this statement
is perfectly correct, is one of those iunda-
mental principles in judicial proceedings
which is acknowledged Gy all and is found
cd in the absolute necessity of the thing
no person viii contend that in civil or
criminal case, either party is 1T liberty TO
introduce what testimony he pleascs, leg:l
or illegal, and To consume tie TEoie term
ir details offacts upccrnccled with the par
ticClar case. Some tribunal then must de-
tide Gu the ddmissibility oftestimonv. The
parties cannot constitute this tribunal, for
they do not agree. The iurv Cannot cor
stitute 1t, for the question is whether they
shall hear the testimony or not. Who then
but the court can constitute it 1t is of ne
ccssi;y the peculiar province of the court tn
judge OF the admissibiiitY Ct testimony. If
the court admit improper, OF rcjcctpropcr
testimony, II is an error Of Judgment, but it
is an error committed in the direct exercise
OF their judicial functions.
The present Indictment charges the p.i
soner with levying war against the United
States, and a,leGgcs an overt act Of lowing
war. That overt act must be proved, &C
cortirg to the mandates of the constitution
am ct The act OF Cong; ess; by two witness
Ses 1t is not proved by single witness.
The presence of the accused has been sta
tedto be All essential component part ofthe
overt act in this indictment, unless the
common law principle respecting accessa-
ries should render il unnecessary and
there IS not Only no witness who has pro-
we'd his actual on legal presence but the
tact OF his absence isrot controverted. The
counsel for the prosecution offer to give in
evidence subsequent transactions, at diff
fercnt place, and in different state, in or
der 10 prove what The overt act laid in
Tic Indictment That the prisoner was
che Of those who assembled at BlanBerhas-
SETS island No that is not alledged. Ii
is well known that such testimony is not
competent TO establish such n fact. The
constitution and law require thnt the fact
should be established by two witnesses, not
by the establishment of other facts from
which the jury might reason to this fact
The testimony then is not relevant. If il
can be introduced, it is Only in the charac-
ter OF c0rroborat We or Coniirmatory testi-
Inony, after the overt act has been proved
BY Two witnesses, IN such manner that the
question of fact ought to DC left with the ju.
~. The conclusion that in this state Ul
things no testimony can be admissible, is &C
inevitable, that the counsel fer the L. States
could not resist it, | do not understand
them To deny, THAI ii the overt act b. no;
proved by two Witnesses so as to be submit
ted 70 the jury, that all other testimony
must be irrelevant, because no other test.
nOny can prove the act. Now an assem-,
6lagc on Blannerhasset's island is proved
by the requisite Gumber Of witnesses, and
che court might submit it to the jury, whe-
thcg that as5cmblage amounted to levy
ms Of war, hut the presence ot the accused
at that assembiagc being 30 where alledgcd
except in the Indictment, the overt act is
not proved BY a single witness, and of con-
sequence all other testimony must be ire
Ieya1t.
The only difference between this motion
as mode, and the motion in the form which
The counsel flr the y. States would adclt
10 be regular, is ,his. Il is now general for
lhe rejection Of Altestin.cuy. 1t might be
particular with respect % each witness as
adduCed. Put can this he wished, or can
II be deemed necessary IL CROUCH is pro-
we'd TO shew that ihe Indictment cannot be
Supported, and that no testimony unless it
be Of that description which the attorney
foi The u. States declares himself not to
possess, can be relevant, why should a ques-
ticn he taken on each witnessl
The opinion Of ibis court on the order If
testimony has been frequently advertcd to
~ deciding this question ag't the motion.
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