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: i ; NotikrCarolma State Gazette k
1
Oart arethe p1tsfa!rdrIiK?itrul peace,
Umvarp'd by patty rage, to live lik Brother.
. . -
Thursday October 22, 1807.
o 422
OPINION OF THE COURT
ft -
On the motion
To arrest the Evidence
m
$urt'3- Crtal-
- 23zlive cu August 31, 1807
CONTINUED, j ,
It is conceived by the court to
be possible that a perojpay. he
concerned in a treasonable conspi
racy, and yet be legally, as welt as
actually absent while; some one act
of the treason is perpetrated. It
i
a rebellion should be so t xtensive
ns to spread through ever State m
tht Union, it wili scarcely be con
tender th.it every individual con-
cerned in it is leg .liy present, at
even- overt act com hi it ted in the
course of that rebel ion. It vvouTd
be a very violent. presumption in
deed, too violent to be made with
out clear authority,; to presume
that even the chief of the rebel
armv was leg illy present at every
such evert act. if the main rebel
army with the chief at its head
sh-u'd be prosecuting war at one
extremity of our territory, say in
N H. u this chief should be there-captut-ed
md sent to tfie other ex
tremity fur the purpose oftria', if
hi indictment instead oi'aUedg'mg
an ovct art wr.ich was true in
piiot of fact, should liletlge that he
had assembled so;me smaU partv
trhich in'truth he had not seen,
hsd levied war by engaging in a
skirmish in Georgia at a time when
in reality he w is lighting a battle
in N. Hampshire, i?" uch evidence
Would sitppct su h an indictment,
fav the fijtion that he war legally
presem, though really absent, all
would ask to what purpose are
thoe provisions in the ; ontitution
'which direct ihe place of tna!, and
erda'm thest the accused shah be in
formed of the nature and cause ol
accusation ?
But th.'t a man may be legally
absent who has counselled or pro
cured a treasonable act, is proved j
by li those books whLh tr at up
cm the $ubj.;.t, and whilh concur
m tlecbririg that such a person is a
pnm'wal traitor, not bec-aue he
tM Ssrgslly-present, but beit.ause in
trcati allure priutipais. Yet the
t&dtLZmail 1 -a upon general.prini
apfc, w.-uld criarg him according
to the truth of the case. Lord Cole j
tf$f U many conspire to levy!
trah? &sci some of them do levy the :
f.trsie rd;ng to the con-jurac , 1
tf.wklMgb treason in ah. Why ? 1
all were leUy prtsenti
C?le war was levied? "No.:
Pm its treason, continues Lord :
Mrt s'b principiils, and war
is fr.vkxV7 In this" case the in-
Cizim-em vt aoninrr from analnw.
& not charge tiiat the
. , - - - - 1 1
efsc conspirators were present bur.
woiM state the 'ruth of the case,
Ti CiW Conspirator hail dnne nn.
whk h amounted ttv lovt ln
amt d by our constitution
t!W detnne that an accessory be-
a; principal be not adopt -
,lK.siK,ii.-.c oi wmcn tne
&$':fm could tjot be condeir
tisdf.t. :m mdicunen statins
Ziwh$ the case, it would b . r
JTv fcrfosay that this MV;
kiV winded one, mas he cur
trfanseiit statina the car-
-j
iHWrfoctrineof LorciC('.
sdbpifd by all subsw
and it is gener.K
AiWff in the Engh' h ho
is
nt
dd
that)
temry in f lom , will m ke n m 't
pMftpal wtrea on: iaut it is r.j
w ninre aggseu d that he is bv con.
wf.ft,; ., -----
w5i rff to be consulered as nr?
L r . , 1 ' .
szst wmti ta pomt oi fact h-.t
1 ,
1 1 t -y "C ? f
fy ?n pm-iir 'itis Wt J known
&"ta m
'S te.t,, aU are irkcipaU. '
or protection,! which ih the ?ase of
i felony will reider a man a 1 acces
sory before or, after thf fct, iti the
case of high treason, whether it be
treason at-ccrr.itioTjaW or by 'sta
tute, wiil nvK hiit"d incipal in
treason.' The case3 of ihciteifjent
and aid are cases pitt; exampleia
of a man's becoming f principttii
treason, not beciusef he was!le
galh present, but :"byJforce of tfet
m txim in the imnHoirda??; .-chat
whatever will'redera man an ac
cessory at common law will render
him a principal in trp'-on; In o
ther oassages the crds u com
ma'ttiV. or 44 pjouref are used to
indicate tfesbde slate of things,
that is a treasnriabf assemblage
produced by a nan who is not him
self Jn th assvmbllg".?
In point cf, law (then, the man
who incites, .lids, lor procures a
treasonable e:t, is not merely in
consequence ofih'atpeitement, aid
or procurement, ljtr;dty present
when that act is copimitttd.
If it does not rjesult from tht
nature of tne crime that all who
are concerned in it are legally pre
sent at every oveji act, then each
case depends upon Its 'own circum
stances, ynd to judge how far tlv.
circums-esof any cise can maki
him legale present who is in faa
abs nt, th- doctrine ol construe
tive'prejtnce' must oe examined.
Halqu bis 1st vl p. 615, says
regular y no man can be a prin
cipal mi felony ; unless he be pre
sent 5 In the sme page he says,
4 an afiessory bejim fa hv that be
ing aljSv'iit at the tiuxtbf tht fe on '
qrcaraBwntl anbiher'Yo com-.
rfiit alttonv."-. 1 nu Doc-kH'4afc :u
of pages which tate this to be
the lr. Foster, inshevv ing whai
acts ;cf ron xirriente wi'l mike- a
mana)rincipal,i sayt uhe musfbc
pri st'.: at tht. perpetration, other
wise ite can be n more thn an
acceisorv before the
Tirse strong diLtinctions would j j
be jr.; j to treason, at any rate tnev i
woe: I le tnapptiica le, if they were j
toJ;-.:
entirely loit id the doctrine
otO'istrutiVe presence
F oster adds (p 3t9) when the
laj' rquireth tne presence of the
ajj(..T.nptice at the, perpetration ol
the fact in order to render him a
i i.'ipal, it 'doth noi require a
t ac tu al i m p. i c di Hte presence
.i h a presence m --woukl rn ik
u an eye or e:tr wicnts ol v. hac
; ieths.'" Thr v r moused bv F -s-
r are such as v. u aid he cmrdoved
a man intending to snew
th
? essity that U:e absent person
liodid be near d hand, although
;om the nature :6f the thing no
?rc'cise" distance could be marked
ut Au inspection of the cases
rom which Foster drew this c;
era! principle will serve to illus
trate it. Kale 4l9. In all these
cases, put by fJble, the whole par
ty set ouc together to commit the
very fact chaigcd iri the indict-
uai lvtui uct
mem, or to commit some otner
in vyhicn vhey are ad
to be pers nall- concerned at the
same time and place, and are at
the very time when the criminal
fact is committt d near enough to
give actual pei sctial aid and assist
ance to the. m irfc;who peipetrated
It Hale in p. 44, giving the tea-'
json for the.clecisiun" in the case of
the word pecee, say the y id
'came with an ntent to steal the
deer, and consequently the Lw
apposes that th y came all with
ihe intent to sjpose ail that should
hinder them in that design. The
origin it case says th'm was their
resolution. a ms opposiuon woul
r , :-i .... .
oc a personal OLposH ion. i hi
lu -ci
case even.as stateit by Hale wou
solution, i his opposition would
s
d
cieariy not ccmirehcnu any man
SStiM - in ad of 8oh;g to thJ
?
4,iued,mi: JAomt cut with he
I t- ' J i fi B , r .
. In both the cases here stated, -(
the persons UctiUdly set out toge-1
tlier, &" 'Were ''near enough to assist?
in the;commissfcn of the fact. That
in the ease of EJudsy the felony was
as statedly Hftle, a different feloi
ny from that originally intended,
i 'UnimportajAt'. in regard to the
particular-principle now under con
sideration! far as respected dis
tance, as re -ct d capacity to as-j
sist in cnejof usistanee, it it; the j
same as. if the robbery had been'
that which i as originally designed.
The case fin the original report
shews thai the felony committed
was in fati in pursuance of that o.
riginally Resigned. Foster 350,
plainly supposes the same particu
lar design, not a general design
composed of manv particular dis
tinct fact He supposes hem to
be co-ojwrating with respect to
that particular design. This may
e iKast:?ated by a case vl)ich is
i perhaps com lion Suppose a band
ot robbers confederated for the ge
neral purpose of robbing, They
set out together, or in parties, to
rob a partiru'ar individual, St ea- h
performs the part assigned to him.
Some ride up to the individual h
demand his purse, others watch
out of sight to intercept those who
might be coming to assist the man
n whom he robbery is to be com
nitted. Is murder or robbery ac
tually take place, all are principals,
md '1 in construction '. law are
present. But suppose thevsetom
at the same 'time, or at diff rent
times, by different roads, to attack i
iwd rob d'rferent individuals or
different companies ; to commit
distinct acts of robben . It h. h
never been couulcd ihit tiiO.c
who committed one act of robbery
or who failed altogether, were con
struct iveiv present at the act of!
those who we e associated with
them in the common (object of rob
bery, who ve;e to sharc'the plun
der, but did n ;t assist at the par !
ricnlar fact. L hey do indeed be- j
long tothe general partv, but they j
are not ol the particular partv
which committed this fa- t. Fo .ter !
concludes this suoject bv ooscrvmg
that '" in order to render a persoj;
an accomplice and a principal in
felony, he muct be aiding and a
bettiiig at the fact, or ready to af
ford assistance if necessary." i ha:
is, at the particular fact which is
, cnargea ; ne must oe reauy to reu
I der assistance to those who are
committing that particular fact ;
he must'v as is stated by Hawkins,
be ready to give immediate h di
re t assistance.
All the cases to be found in the
books go to the same point. Let
them be applied to that under con
sideration. The whole treason laid in this
indictment is the levying of war in
Blahnerhassett's island, and the
whole question to which the en
quiry of the court is now directed
j is whether the prisoner was legaih
! present at that fact
I say this is the whole question,
because the prisoner can only be
convicted on the overt act laid in
the indictment With respect to
this .prosecution, it is as if no other
overt act existed. If odier overt
acts can be enquired into, it is for
the sole purpose of proving the
particular fact charged ; it is as
evidenc e ot the crime consisting of
this particular fact, not as estab
lishing the general crime by c: dis
tinct fa.;t
The counsel for the prosecution
have charged those engaged in thy
defence wi h considering the overr
! aetaa.the treason, whereas H ough
j to be considered solely as the evi
dence of the treason : but the coun
sel for the prosecution seem them
selves not to have stiflkitndy ad
verted to this clear principle, thir
though the overt act may not be
itself the treason, i t is the sole att
of that treason Which can product
conviction. It is the sole point jr.
) jsuer between, the parties And
the tnly division of that point, if
the expression be.ailowed, which
the ro,rf i rw ;
the court is now examining, is the
constructive presence ot the pri
soner at the fact charged.
To return then to the applica
tion of the cases-
Had th, prisoner set out ith
the; party from Beaver for Blan-
nerhassett's isl md, or perhaps had
he set out for that place, thq not !
Jrom Deaver, and hai arrived in
rne island, he would have been
present at the fact ; had he not ar
rived in the island, bat had taken
a position near enough to co-operate
withr those on the island, to
assist them in any a:t of hostility
or to aid them if attacked, the
nilevtinn tt7l-t !- U t
1 , ' " "oVwatiu
lively present would.be a Question
compounded of law S: fact! vvhi, h
wyr " -vltil
tne aid ol the court, sn fr
pected the law. In this crse the
accused would have been ol ihe
particular party, assembled on the
island, and "ould have been a& -o-ciated
with th-m in the particular
act of levying war said to have
been committed on the island.
But if lie was not with the pary
at any titpe !)efore they reached
the island j; if he did not join thrm
tiiere, or intend to join them there ;
d his personal co-operaiion in the
general j.ijan was to be Hffurded
ciewnerv
a different
of treason
at a great distance, in
state; it the overt acts
to be pcrf rmed by him
were to
be tlisdnct overt acts:
hen he was not of the particular
partv assemb ed at Blannerhassett's
island, and was not constructively
present, aiding & assisting in the
pwrt!' u'ar ad which was thuc
lommittetl. l.h
the particular oartv which aemi
bled on Blannerhassttt's ishnd, bur
tlie whole evidence shews he was
not of the party.
In felon then admitting ihe
crime to have been completed on
the island, and to have been ad
viscrd, procured, or commanded by
che accused, he would have been
incoiuestibjy an accessary, and not
a principal
But in treason it is said the law
's otherwise, because the thcatr.
"faction is more extensive. ;
Ihe reasoning appues hi Kng
!and as strongly as in the U States.
While in '!5 and '45 the fimily of
Stuart fought to regain the crown:
they had f Jtfeited, the struggle Wa1-
for the whole kingdom; yet no
man was ever considered as leg-d
ly present at one place, when ac i
tually at another j or as aiding in
one transaction, while actually em
ployed in another.
With the perfect knowledge that
the whole pation may be a theatre
of action, the English books unite
jn declaring, that he who counsels
procures or aids treason, is guilt
ic tsscrily and spiely in vittue oi
he common law principle, that
vhat wi 1 make a man , an accessor-
in felony m.tkts him a princip-,1 in
.reason. So far from considering
a man as constructively present at
every overt act ol the general trea
son in which he may have been
x,nrerned,i the whole do? trine of
the books limits the proof against
him to those particular overt acts
of levying war with which he is
charged, j
What would be the eflecfr of a
d iffe rent doctrine ? Clearly that
whiv.h has been staged. If a per
son levyingj Vvar 1D Kentucky, may
he said to be constructively present
and assembled with a party carry
ing on war (in Virginia, at a great
distance from him: then he is prt
enr at eeerv overt act performed
my where; he may be tried in anv
slate on the continent, where anv
vert act has been committed : he
aaav be proved to be cud v ot at
m !
ustimnnr on th s nr,M. 4r. , . , '"- V at
ir it has be.n delivered, is "not , ' 7 with ,f (
tquivoc.U. Thrre is not , H no I th'lt S $
evidence that the accused was of ! ..t Zl "'1l ' .""J. aU' the & V
vert act la$ ta tne iaclictmeat ia I
. which he had no personal " DirtlcU
pation, by provinJthTr P 1 '
Li 9 . Proving that He advis
ct, or tBat he committed
acts.
: v,ftW4k
1 his Is, perhaps, too extrava
gant to be in term maint,;,!.
! by the Tf Tl
i certain v
It - , .. I m
law.
he opinion of Judge Patterson
in Mitchell's case h;;3 h :eU ci etj
on. this pint. 2D..I. 348.
. lhe indictment is not special
but from the case as reported, it
must liave be, n ei.hHr n,.ro, i..-
f jewing war in the county ol AU
giiam.j ana the overt act laid
mu,t have hren the . asemble
ol men and levying of war in tnic
coun v: or it must hwc c-x, '
ltn-.;i j c 1Vetl J r
m
i nrst ppos.uou is the most
most hj'nivi
Ulr uuc ' tne iudutment be irj
the one form or the other, and the
result i, the same. The facts of
me case are, thut a 'large bod' of
men, of whom Mil Jiell was one,
assembled Braddock s field; im'
the county of Alleghany, for "the'
Jor purpose of committing ats of
violence at Pittsburg, That there
was also an a'.semb age at a differ
rent ti r.e at Couches fore, at whirrs
the prisoner also attended. 1 ha
general and avowed ol.n.( t of thaC
meeting was lo con-en nuat ur'es
for resisting the execution of a
pubhe. law. At Couches ion, he
resolution was t d:en to attack the
house of the inspector, nu the
body there asstmbl-.d marched to
thut house and attacked it. ' Itwad
proved b) the competent number
of witnesses, that he w?,9 ur tua
civs tortarmc tnat he , -tic red to
ki . i i . .. i
icto.jnoitre tne hou r,
comrades who w ,s killed in u ; on
witness swore po;tiveiy that v3
was present at the burning of tha :,
houe, and a second witness said
that it ran in his head that heh id
s. en him tnere." That a riotmc
should exist jm such a case as this
i strong cvider.ee ot ine ne es- iry
that the overt a. t should be une
quivocally proved by two vi
ueMses.
-But what was the opinion of the
judge in this cast Couches forC
UiU Neville's h.use being in the
same county, the assemM gt- hav
mgbeeri at Couche . f0 t and tne
resolution to attack the houst hav
ing been there taken, the body
Having lor the avo-vi purposes
movea in execution of tnat
hit ion towards the house to be
- 1 II A
neKcu, iie-rr,ci;ned to think that
the act of marching was in rself
levying war If it W;s, then the
overt act laid in the indictmenc
was consummated by .he assem
blage at Couches end tht mar hingf
from thence, and Mitchell w
proved to be guiky by more than'
two positivve w itnesses. But with
out deciding this to be the law, he
proceeded v conidr the meeting
at Couches, the immediate march
ing to' Nevd.Vs hou-e and the
attxk and burning of trie huse
as one transaction. Mitchell wr,s
'proved by more than two positive
uimcses to have been in tbafi
transaction, to have taken an ac
tive part m it, and the judge de
sired it toiie i.nnvcess'arv that all
should have set i him at the ma
time and place.
CTsbe continued. J
.
A TEACHER W ANTED 1
rpIIE Tins'ees of the Green? Aca
dr'm' w-sh to contract wl -.oVne
Person otak chargs of rht S-:wA -a
PfHtci'wl leather. A .:. pv.,j0,,- tr.ac
vishes to 1.. ffipiny(! ., -aKClh th4t i-aii
corns cveli recoinwued .ayuly ji :3
.od' wages a-, artus-cir.a j, kCr'o
cade:v-y is sniiitci! m Gifts? Cmoir
llt'i. I rtv -.. .
tr,u" Wfc1 otsn-susm a-.i. .eunvi .f.l5s
civs lortarmc tnat he ofttred to V'd
t j "i.uuiig oooy ot one or : $ ,
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