Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-19
GriaI Of %arnn 25urr.
OPINION
offhe Court, on the motion to arrest the
cUideace--Gehvered on
MONDAY, August 81.

I Offhe Court, op the motion 10 arrest the
! cUideace--dsivered on
! MONDAY, August 81.
(Continucd.
| 1t seems then 10 be perfectly clear that
! It would not be sufficient for an Indictment
to aliedge generally that thc accused had
levied war against the United States The
Charge must be more particularly speci-
/ fed by laying what is termed an overt act
of lcvying war. The law relative to an APP
peal as cited from Stamford, is strongly COR
rohorative OF this opinion.
It IL be necessary to specify the charge
! in the indictment, it would seem TO follow
irresistibly. that the charge must be pro-
we'd rs laid.
All the authorities which require an o.
vert act, require also that this overt &c;
should be proved. The decision in
! Naughan's case is particularly in point.
| Might it be otherwise, the charge NJ an o.
vert act would be mischief instead of an
! advantage to the accused. 1t would lead
him from the,true cause and nature of the
accusation. instead of informing him res.
| pecuag it.
But It is conterdcd on the part Of the
prosecution that, although the accused had
| been never with the party which assem-
| bled at Riannerhasset' island, and was,
AZ the time, Sta great distance, and in q
different STATE, he was vet legally pre-
sent, and therefore may properly be char
gcd i'll the indictment IS being present in
fact.
II is therefore necessary to enquire whe-
! thcr in this case the doctrine ofconstructive
presence can'arpiy.
1t IS conceived by the court to be posi-
Die that II person may be concerned III a
! treasacaDle conspiracy and yet be legally,
| IS well as actually absent while some orc
! act of the treason is perpetrated Ii a re-
! beilion should be So extensive as 20 spre al
! through every state III the union, it will
| scarcely be cpntended lit every ind;vidu-
| al Concerned IN it is legody present al eve
! ~ overt act comm tied in the course of
that rebellion. II would be very violent
presumption indeed, too violent to be made
/ without Gear authoritV, 10 presume that
/ even the chief of the rebel army was le-
/ gally present at every such overt act. il
the main rebel army with the chief 1T its
head should he prosecuting war at one cX-
tremity Of our territory, say in -. II. II
this chief should be there captured and
se7t to tie other extremity for the purpose
of trial, if his indictment instead OF allied
ging an overt act winch was true IN point
Of fact, should alledge that he had assem-
{ bled some small party which in truth he
had not seen, and had levied war by enga.
ging in skirniSh in Georgia at a time
4, when in reality he was fighting a battle IL
4 New-Hampshirc, If such evidence would
: support such an indictment by the hcuoI
that he was legally present though really
absent, all would ask to what purpose ARK
} those provisions in the constitution which
direct the place of trial, anh ordain that thC
accused shall bc informed of the nature ant
cause of the accusation
. But that a man may be legally absen
, who has counselled or procured treason
able act, is proyedby all these books which
e treat upon tine subject, and which .concu
t III declaring that such person is a prin
u cip&l traitor, rot because he was legally
present, but because in treason ali ART
} principals. Yet the indictment | say upo'
. general principles would charge him &C
10rding to the truth Of the case. Lore
Coke SAYS Z" IL many conspirc TO levy wa
and some of them COisvy the same aCcor
ding To- tie conspiracy, this j. high treaso
IL ali" WHY! because all were legal
present when the war was levied NJ
. For in treason, continues Lord Coke, al
r. be principals, dUd war is levied" In thI
case the indictment, reason ng from analo
~, would not charge that the absent con
snirators were present bat would state tn
= tiuth nf the case. 1t the cotspiratcr ha
r. done nothing which amounted to levin
h, ri war, and If cv our constitution the doc
= trine that an accessory becomes principa
!. DC not adopted, in Consequence Of wh,cl
= rhc cor,pirator could not be condcmne
.ugder an indictment stating the truth OF tn
case, il would be going very far to say tina
. this defect, if it be termed one, may b
cnred by an indictment stating the cas-
~ uutruly.
This doctrine of LCrd Coke has been 2
, doDted NV ~ the subsequent writer's an
Ill it is generally laid down IN the fnGls
b. books chat whatever wi make man a
/, accessory in felony, wiz make him priu
s. cipal IA treason; but it /, no where sug
p. eestcd that I've is by construction 90 be con
81 sidared as present when ~ point OF Tact u
70 was absent.
81 SER Sd has been particularly quotet
aud certainly bel precisely IN point. - y
is wei known, says Foster, that ~ the ian
b.. gl ge OF the case thcre are no acccSsarie
in HIGH treason, az are principals. Ever
j.. instance Of inciremcrt, aj% or protection
which in the case oi fclo'y wii'render
man an accessory before or after the FAC
ir the case OF high Treason. whether IT j