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

to unite the acceSsorial to the principal O!
fence and permit them To be charged a
one, yet it can never be conceded that ia
who commits one overt-aCt under the sta
tute OF Edward, can DC charged and CON
victed OH proof of another ovcrt-act.
/ then procurement be an overt-act OF trca
son under the constitution, no man can bt
convicted for the procurement under an III
dictment charging him with actually as
sembling whatever may be the doctrine o
the common law in the case OF an aCcesso-
rial offender.
1t may not be improper in this place again
to advert TO the opinion of the supreme
court and to show that it contains nothing
contrary to the doctrine now laid down
I That opinion is that an individual! may be
guilty of treason ''who has not appeared
in arms against his country: that itwar be
actually levied, that is, if body OF men I've
tactually assembled for the purpose OF effect
| ing by force a treasonable object, all those
vino perform any part however minute or
| however remote from the scene of action,
and who are actually leagued iii the gene
raj conspiracy, are to be considered as
! traitors"
This opinion does not touch the case of a
person who advises or procures an assem-
biage, and docs nothing fur,hcr. The adj
vising certainly, and perhaps the procur-
ing, is more in the nature OF a conspiracy
to levy war, than of the actual levying 81
war. According to the opinion, it is not
enough to lie !eagued in The conspiracy, and
that war be levied, but it is also necessary
to perform part; that part is the act of
! levying war. This part, it is true, may be
minute, it may not be the actual appear
ance in arms; and it may be remote from
Of hot &c ti,,sr .la
where the army is assembled, but it must
be part, and that part must Dc perform
! ed by person who IS icagued III the con-
spiracy. This part however minute or re-
mote constitutes the ovcrt-act on which D.
lone the person who performs il can be
convicted.
The opinion does not declare that the per-
son whohas performed this remote and mi
nuLc part may be indicted for part which
WAS IN truth performed by others, and con-
| victcd on their overt acts. Il amounts 70
! this and nothing more, that when WAY is
actually levied, not only those who bear
arms, but those also who are leagued i'm the
conspiracy and who perform the various dis
! tnct parts which are necessary for the pro-
( secution of war, Go iii the sense of the con-
stitution levy war. 1t NAV possibly be the
| opinion OF the supreme court that those who
procure Il treason and do nothing farther
are guilty, under tho constitution ] only
say THAI opinion has not yet been given !;
still less has it been indicated that lac who
advises, shall be indicted as having perior-
med the fact
tits then the opinion Of the court that this
indictment can be supported only by tcsti-
mony which proves the accused to have
been actually or ConstruCtiveIy present
when the asscmblage took place or Blan-
nerhasset's island, or by the admission of
the doctrine that he Who proCures an act
may be indicted as having pei formed that
act.
! il IS further the opinion of the court that
there is no testimony whatever wh.ch tends
/ 10 prove that the accused was actually or
cons;ruCtivcly present when shat assem-
biaEc GId take place. Jrdecd the contrary
is most apparent. With respect 60 admit
ting proof Of procurement to establish n
charge OF actual presence. the court is Of
opinion That II this be adm s. Die in Eng
land Oh an indictment for lcvying war,
which IS far from being conceded, it is :.d-
mIsslUie only by viItnc ct The operation 0!
the common law upon the statute, aud there
fore is not admissible i'm this country unless
by virtue Of siniiiar operation; a point
far from being established, but on which,
let N'i~ ~ ~nN'iN1 Nv .o!'iit'oi - SiNCU' u,
however, this point bc established, still the
procurement must .: proved in the same
manner and by tho same Kind Of testmonv
which would be required to prove actual
Iprcscnce.
The second point in this division Of the
subject is the necessity of adducing the re-
cord OF the previous conviction Of ,oirc one
lpcrson who commited tie fact ailedged to
Zoe reasonable
This point pre-supposcs the treason Of
The accused, il any las been Committed, %
be accessor,gi in It's nature lis being OF
this description according to the British au-
lhori;ies, depends ON the presence or alb
isenCs of the accused at the time the fact
was committed. The doctrine on th sub.
ijeCt is will understood, has been most cupi-
Iousy explained, and need no, be repeated
That there is 10 evidence Of his actual or
legal presence IS point already discussed
and decided. It's then appnrvnt that, but
for the exception 20 the general principle
which is made in cases Of treason, those
who assembled az Banuerhas5Ct's island.
if that asscmblagc WAS such as tOConstitule
tne crtmc, would be principals, ard those
vino might really have caused that assem-.
blage, although IN truth the chief TRAITORS
would in law he accessories.
1t is sett'ed principle in the law thai
the accessory cannot be guilty Of greater
offence than bis principal The maxim is
IacCessorius SCquetur, n3turam sui prinCr
!, pals the accessory follows the nature @
the prinCiDai Hence results the upccssit,