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

ceiTary for the court TO bring them again into
view. 1t is the leTs neceiiny becauie it is not
uuderitood that the law is coa.roverted by the
council for the United States.
il is, however, commended, that the pritoner
has waved his right To demand the conviction
of (ome one psrsun who was preient at the
fact, by pleading 70 his indictment.
Had this indictment even charged the priion
er according to the truth of the cafe, the court
would feel fome difficulty in deciding that he
had bv implication waved his right TO demand
fpccies oftrftimouy eiitn,ia' 10 his conviction.
The court is no, preuared to fay that the act
which is 10 operate asainft his rights, do not
require that it ihcuid he perfcrn'ed with full
knowledge Of its operation. IL would ieem
conionant 20 the u!l.l c"uite at proceeding IN
other reflects in cr,raioa' cafes, THAI the prl-
fDrer fhou!d be informed that he had right TO
refuie to be tried until fone peIfou who COM
mitted the act i!iouId be convicted, and tina, he
ought not to be coniiiersd as waving the right
TO demand the record of conviction, Nnieis with
the full knowledge Of that right he coniented to
be tried. The court, however, does not decide
what the law would be in fuch cafe. 1t is
unnecefary to decide it becsufe pleading to All
indictment in which a man is charged as having
committed an act, cannot be confirmed 10 wave
right which he would have poiitiicd, had h
been charged with having adviied the act. No
perfon indicted as a principal can he expected
to fay am not 4 principal, am m acceiiary !;
did not commit, only adviitd the act.
The authority Of the Engiilh cafes on this
fueect depends in great meafuTe On the adop-
ton cf the common law doctrine of accehoria
trcafons. IF that doctrine he excluded, this
branch of it may not be directly applicable TO
treafons committed within the Umtcd States.
II the crime OF advihng or procuring lepyinG
of war be within the constitutional Gei"iton OF
.realon, then he who advifes on proCureS ii muit
be indicted ON the very fact, and the queltlou
whether the treafonablenefs Of the act may be
decided in the fra inltance in the trial of him
who procured IT., or NUT be decided III the tri-
al Of one who committed it, will depend upon
the reafon, as it refpects the law Of evidence,
which produced the Briti!ll decfiOns with re-
gard to the trial IF principal and acceiary, IA.
Their than on the poiitive authority OF thoie de-
cfons.
This suction is not eilcntial in the preient
cafe, becaufe if the crime be within the coniti-
tutonal definition, it is an overt act OF levying
war, and to produce conviction ought to have
been charged in the indictment.
The law cf the cafe being thus far fettled,
what hught TO be the deciiion of the court on
the preient motion? Ought the court to iet
and hear teltimony which cannot affect the prl-
foner, or ought the court to arreit that tetimo-
ny vi tUtS HuSltiOU UuSu lfo pSSu
much that may perhaps be aicribed to mil
conception of the point really under conIidera-
tion. The motion has been treated motion
| confefsedly made to flop relevant teitimony,
and in the courie of the argument, 1t has been
repeatedly fated by thoie who oppofe the mo
ton, that irrelevant tetImony may and ought
to be topped. That this Ratement is perfectly
correct, is one of thofr Fundamental principles
| in judicial proceedings which is acknowledged
| by all and is founded in the abio.utc necefhty
OF the thing. No perion will! contend that IN a
civil crimina! cafe, either party is at liberty
to introduce what teiimony he plsafes, lega
or illegal, and to coniume the whole term in
details OF facts unconnected with the particular
cafe. Sonle tribunal then Dluit decide on the
admilibiiity OF .eitlmoDy. The parties canno,
coDltitute this tribunal, for they do not agree
| Fhe jury cannot confttute IT, tor the qucitoU
is whether they ihall hear the teltimony not
Who then but the court can conittute 1t L! ii
is of neceiity the peculiar province OF the court
TO judge of the admlfioiliiy of icitimony. II
the Court admit improper, or reject proper tef
timoDy, it is an error of judgment, but it is ar
error committed in the direct exercife Of thei
judicial functions.
| The prefent indictment charges the prifore
with levying war aganft TIE Usited States, ane
alledges an overt act Of evying war. hat o
vert act mutt be proved, according to the man
| dates of the contribution and of the act Of Con
! greis, by Two witncilcs. II is not proved by
! Jingle witneis. The preience of the accuieC
| has been ftated to be e1ebtial componcn
part OF the overt act in this indictment, unlei
the common law principle refpectIne acccGarle
| ihould render 1t unneccilary; aud there rs no
only no wltnets who has proved bis actual OF
! legal prelenCe; but the fact of his abfcbce is moi
controversial. The council for the profscutiOr
offer TO give in evidence iubfequent transactions
at different place, aud IN different rate, IL
order TO prove what The overt act lard IL
| the indictment That the prifoner was one O
| thoie who afiembed at Bianuerhaflttt's iflaud
! No; that is not ailedged. 1t is well known
that fuch teiiimoDy is not competent TO ei
taoliih fuch a fact. The contribution aud Law
require that the fact Glould be eRabljl,cd bJ
two witneies, not by the Establishment of othc
facts from which the jury might reaion to thu
tact. The tettlnony then is not relevant. j
1t can be introduced, it is only in the character
tcorroborative or conirmatory teaimony, az
ter the overt act has been proved by two wit
neiles, in tuch manner that the queition of fact
ought to be left with the jury. The coucutiot
tnat III this fate OF things no teitimouy can bC
admifible, is 70 inevitable, that the council fol
the U. States could not refft it. do not urGes
| itand them to deny, that if the overt aet be not
proved by two witncfles 70 as to be fuhni,ted tc
The jury, that all other teflmony mutt be ire.
ieTant, becaufe no OTHER teftmcny can prove
the act. Now an ailenbiaee on BIannerbaffett'l
liland - proved by the requiite number of wit.
nsties, ard the court might fubmit it to the in.