Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-19

III treason, not because lie was iegaly pre-
sent, but by force of that maxim in the
common Law that whatever will render a
man an accessory at common law will rem
der him q principal in treason. in otter
passages the words " command" or "pro-
cure" are used to indicate the same state of
J things, that is a reasonable assemblase
produced by a man who is not himself in
that assemblage.
! In point law then. the man who incites,
aids, or prccuycs Reasonable act, is not
merely in consequence of that Indictment,
aid or procurement, legally present when
that act is committed.
| II it does hot result from the nature of
the crime that all who are concerned in it
are legally present at every overt act, then
each case depends upon it's own circum-
stances, and to judge how far the circum-
stances OF any case can make him legally
present who IS in fact absent, the doc
trine of constructive presence must be eX-
amined.
Hale in his LIST vol. p. els says "regu-
larly no man can he a principal in felony
unless he be present" In the same page
he says San accessory before is he that
| being absent at the time of the felony com.
mittcd, doth yet procure, counsel, or COM
mand another to commit a felony" The
to he the law. Foster in Showing what
acts os concurrence will make a man a
principal, says Z" he must be present at
the preparation, otherwise he can be no
more than an accessory before the fact"
/ These strong distinctions world be IDLE
to treason, at any rate they would be map
pic bic, if they were 20 be entirely lost in
the doctrine of constructive presence.
Foster adds (p. 349) " when the law re-
quirei IN the presence of the accomplce ut
! the perpetratIon C. the fact in order to
( render HIM principal, it doth nctreQuire
a strict actual immediate presence, such a
I presence as would make him an eve or ear
witness Of what passcth." The terms used
by Foster are such as would be employ ed
by man intending to show the necessity
that the absent person should be near at
+ hand, although from the rature 5f tite thing
! 10 precise distance ccud be marked out.
J An inspection OF the cases from which Fos-
I ter drew tbs general principle VIII serve
TO illustrate il. Hale $50. liz al these
cases, put by Hale, the whole party set Gu.
I together 10 commit the very fact charged
! IN the indictment, or 10 commit some ether
I unlawful act, in which they are all TO be
I personally Concerned ut the same time and
| place, and are 1T tire very time when the
| give actual personal aid and assistance &c
The man who perpetrated L. Hale in p.
449 giving the reason for the decision in
the case of the word Decree saws F." they ali
Came with an intent to steal .he deer and
consequently the law supposes that they
came all with the in ent to oppose ali that
should hinder them i'll that design. I he
original case says this was their resolution.
This opposition would be a personal oppo-
Sition. This case even as stated by Hale
would Clearly not comprehend any man
VINO entered into the combination, hui
who. instead of Going 20 the park where
the murder Waa comm Ted, should not set
out with ne others, should 90 TO a different
park, or should even lose his way. Hale
534.
In both tile cases here stated, the person:
actually set cut together and were ncar e
nough 10 assist in the commission Of thC
fact. Tha; in the case OF Pudsy the ,;iony
was as stated by Hale a different felony
from that originally intended is unimport
ant in regard to the particular principle
now under cons Iteration, SO far as respec
ted distance, as respected capacity to as
, sist in case of resistance, it is The same q
, if the robbery had been that which was o
, riginaliy designed. The case IN the origi
: nal report shows thasthe felony Commit;e;
4 was in fact in pursuance Of that original,
+ designed. Foster $50 plainly supposes tin
same particular drs'gu, not a general de
D sign composed of many particular distinc
, f.cts. lie suppcscs them TO be cO-opera
ling with respect to that particular design
! This may be illustrated by a case which i
8 perhaps common. Suppose band Of rob
. bers confederated for the general purpos
. of robbing They set out together, or Il
. parties, to rob particular individual, an'
7 each performs the part assigned to him
/, some ride up 70 the individual aud denan
= his purse, others watch oui Of sight to IN
! tcrcept those who might be coming to as
I sist the man on whom the robbery IS 20 III
: committed II murder on robbery actual
/. take place, all are principals, and all il
{ lC0nstruction Of law are present. But sup
2 pose they set out a. tie same time or a
I d ffereut times, by different roads, TO mttC
and rob different individuals or diRcfCs
= companies 10 commit distinct acts Of rob
4 berry. Ii has never been commended tha
, those VINO committed one act of fobbcr
n or who failed altogether, we're ConsJruC
. lively present at The act of those who wer
= associated with them ~ tie common ob
20 ect Of robbery, who were 90 share ia
c plumber, but who did not assist nt the pat
ocular fact. They do indeed belong {
the general party, out they are not Of th
particular party which committed this flc
Foster concludes Ibis subject by obseryin
f, that " IN order To render person an &c
=. comp'ice and a prime pal III felony, h
rnust be aiding and as ting at the fact, {