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

The fact can only~be established in Il p~c-
S Secution against the person By 7Yhom tha
crime has been perpetratcd. She law .pp-
poses man more capable of defending his
: own conduct than any other persoH. and Ill
not tolerate that the guilt O, = shall be c.
tablished in prosecution against y. Con-
sequcntly, if the guilt Of Is depends on the
guilt Of A, a must be convicted before ];
can be tried II would exhibit a Tuonstroui
detormty, indeed, III our sy stein, ii Is uirhC
be executed for being accessory 20 q inur-
der committed by Il, end \ Should after
wards, upon a full trial, be acquitted for
the fact. For this obviouS reason, aitho'
the punishment of a principal and accesso-
~ was originally the same, and although
IN many instances It is still thc same, the
accessory could in no case be tried before
the conviction of his principal, nor can he
yet be tried previous to such conviction, un-
less he requires il, or unless special pro-
vision TO that effect be made by statute
hthen, this was felony, the prisoner nc
the bar could not be tried unless the crime
was established by the conviction of the PERI
son by whom it was actually perpetrated.
| Is the law otherwise in this case, because
| in treason all are principals
| Let this question be answered by reason
| and by authority.
Why is it that the felonies however a.
trocious, the trial Of the accessory can ne
yer prcccdc the conviction ofthc principal
Not because the one is denominated tho
principal and the other the accessory, for
that would be ground on which a greatlaw
principle could never stand Not because
there was in fact difference in the dcgree
Of moral guilt, fer in the case of murder
committed by a hardy villain for Il bIitc,
the person plotting the murder ard giving
the bride, is, perhaps, of the two the black
CT criminal +; and, were it otherwise, this
would furnish no argument for precedence
in trial.
What then is the reason
1t has been already given. The legal
guilt OF the accessory depends en- the guilt
OF the principal; and the guilt Cf Tie pTm~
cipal can only be established in prosecu-
| ton against himself
Does net this reason apply in full force 70
The legal guilt Of The pcrs on who plan
ned the asscmbiagc on Biannerhasset's
island depends, net simply on the criminal
ty OF the previous conspiracy, but on the
criminahtY OF that asscmblage. II those
operpetrated the fact be net TRAITORS, he
who advises the f2ct cannot lie a traitor.
His guilt then in contemplation Of law, de-
ponds on theirs, ard their guilt can only be
|. estab!Ished,in a prosecution agiIist them
selves. Whether the adviscr of this as
senIblage be punishable with death as
principal or rs an accessory, his liability
to punishment depends On the degree of
guilt attached to an act which has been
pcrPctratcd by others, and which, if 1t be
a criminal act, renders them guilty also.
Ills guilt therefore depends on theirs, and
their guilt cannot he legally established in
a prosecution against him.
The Whole reason Of The law then rela-
tive to the principal and accessory, so far
as respects the order OF trial, seems 20 ar~
| ply III full force to case OF treason com,
mitted by one body of men IN conspiracy
! with others who arc absent.
III from reason we pass 0 authority, we
I hndit lard down ~ Hale, Foster. and East,
IN the most explicit teams, that the can-
{ vicuon of some ono who has committed
! the treason must prccedc the t!ial ofhim
who has advised or procured it. This po-
/ non is also maintained by Leach IN his
notes on hawkins, and is not, So flr as tl!.;
! court has discovered, any whore contra
! dictcd
These authorities have been read ard
ccmmcEted ON az such length th;.t it cam
not be necessary for the court to bring
/ them again into view. Il sthe less ncCes-
! sary because it is not understood TINT the
raw IS controycrted by the counsel Ior the
| Jmted states.
: Il is, however, cor'endcd, that Tie pri-
/ soner has wayco his RICH. to demand tho
conviction ot some oic person who was
( present at ihc fact, by pleading TO his in-
ictntnt.
Had this Indictment even CHARGED the
/ prisoneraCc9rdrE tn the truth of the case,
, the court would feel Some difficult in lie,
Gliding hat hc had by implication waved
has rIgh. to demand species Of testimony
( essential to his conviction. The court j,
, not prepared TO say that the act which is
% operate against his rights, did $50, re-
I fuife that it Should be performed with
( iull knowledge Of It's operation. Il would
seem corsorant to tie usual course of pro-
cecdiug IN othericsptcts IN criminal cases
that the prisoner should he Informed that,
nc had "a right tO refuse TO be trjod unti
some person Who committed the acc should
be convicted, and tina. he ought not 20 be
considered as waving the right to demand
the record of conviction, unless with the
full knowledge # that right nc consented
90 be tried. The court, however, doe. not
decide what the Lave would be in such
lease. lei unnecessary todCcidc itbccaasC
pleading 90 an Indictment iu which Il man
IS charged as having con united an net,
cannot BE- construed 60 wave % rilht which
he would have possessed, lad hc bcrr
charged with having advised The act 30
lev. I.g