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IP If Our, are the plaiof fair delightful peace, Unwarp'd by party rage, t live like Brother!. TV" I Thursday, OcVobI 129, 1807. v QP1N10N OF THE COURT On the motion 5T arrest the Evideae in SBurr's CrfaU &cltcred August 31, 13Q? C9NTTKUED. ttnt aunnose not a single witness fcad proved Mitchell to have been at Couches, or on the march, or at Neville's. Suppose he had' been at the time notoriously absent : ,r,flrrent state. Cariitbe be- 111 H V 11V ieved bv any person who observes he caution with which Jude Pat- l the caution "v . '(;,i;nn!.l terson reqwrcu w uiuh-m-- rrtf nf two witnesses to the same overt act, that he would have said Mitchell was tonstructivay pry seot, and might on that straining of a legal fiction, be found, guiHv f treason ? Had he delivered such an opinion what would have been the language of this country respecting it I Had he given this opinion it would have required all the correctness ot his life to strike hia name from that bloody list in which the name of Jeffries is en rolled. C , t. But to estimate the opinion in Mit chell's tasK, let it circumstances be transferred to Burr's case Suppose the body of men assembled in Blan nerhassett's island hd previously tnet at some other place in the same county, and that Burr hnd bten proved to be with them by four wit" Besses ; that the resolution to march to Blannerhassetl's island for a trea ter.abjt purpose had Ween there tak en ; that he had been seen n the march with them 5 that fne witness had seen him on the island, that a not her thought he had seen him th?ic j --hat he hud been seen with the party directly after leaving the island ; that this indictmtn had charged the levying of war in Wi o county generally ; the csr s would then iu ve been pre cisely parallel, & the decisions wuld have been the ism, In conformity with print iple and with au M'-rity trun, th- n"sorer ' liv.- i.tr was neither legally or ac- tu.lly t.rt.eut Blapncrhasi fl lsUPi ; u thecouit is felroiuiv m-i Clmtd tothe op'tnien that i9ut ; ' .... 'i . 4. i i by jy two w'.tnessi-s, the cv rt net lain i; . -111 in th'!s incicLment cannot be prcved. But Lhib opmiun is contioveittd on twef gr uncia. . ' The hrst is, that the indictment does ;otharge the prisoner to have teen present f The second, that although he was absent, yet, if he caused the assem blage, he may ee indiotec? as beinj: present, andxonvicted on evidence that he aused the treasonable act The firit Dilion o be decided hy the indictment itse'f. . The r.oirt tandtMStar ds ?he allegation tliiit rt-nly frm 'he aorney for iht U Stnte. The cr-ur: und-rstandai it o be r'.i i'ectly r.hftfged.'tha' the prisoner did tissembh: wi!h the multitude i! march wi'h th m, Nothino- w,d ynovt ck-a iy test thrs const uo'i.-n tbztis ting-th case into a sru-.pt Vhirh V ti.aX j'-osaifry t?l;r. Svip-o-t 'hf l.'-v to be, th.it the indirt inenf Wotild be tieiective w- less ir at'itlpcc the presence f the p.-r-on indfctf it th'-' iie bf treason. L Upf;n a Sjjec'ia verdirt fatts should b -found, which snot:i'ed toalevvii,, 4f Wiir by the accused, his coun et should ir-Kt thai he ct.-ula noi We cotiflemned because the ?ndsct tnen; was u.f:t ive in nos chaifjinv: th.u he was himself one of thj as semfelage which corsthuced the trea v i . . .i a u sen, or oecEUse u aiuug;u ne pro f.ureTTient defectivelv. Wttlild the at- i torney admit this construction of his inlicrmcnt to be correct I I aut per suaded that he would not, and that lie ourrht net to make uch a conces sioti. If, after a Verdict, the indrct- tnent ought to be construed to al- j ly- The buoks concur in declarir ledge th-t the prisoner was one of ! that they cannot be so indicted. 1 assemblage - at Blannethassett's 'j ptcial overt act of levying war nun island, it cugUt to be so construed h hej laid. Thia distinctiort. betwtrt acw. But this is unimpnnaut, for coinuerfeiting the coins, and th if the indictment .alledges 'that ihej cliiss of treasons among which Iev yrisotief procured the assemblage, ; war is tace, s taketl Y l that procure mtnt beccmf.s part of ; statute of Edward 3d. -That sta qe tlie tVert act, and must be proved requires an overt act of levying v4.r as mli be shcn hereafter. The 2d position is founded on 1 Hale 214, 288 and I. r,at While I declare that this doctrine contradicts every idea I had ever en tertained on the subject of inict menis, since it admits that pne.case mav be stated and a very different case may be proved, 1 will acknow ledge that u is countenanced by the authorities adduced in its support. To counsel or advise a treasonable assemblage and to be one of that assemblage, are certainly distinct ktsnS'fieW ouglif no to be charged as the same aCt. The great objection to this mode of proceeding is, that the prof essentially varies from the charg in the character ana essence of the ottence, ami in uc testimony by which the accused is te defend himself. These diM of accused is j Lord Hale therefore, taken in theJ eient'in which they are under stood by the counsel for the U. b. seejji. to be repugnant to the declaratiajM; we find every where, that an overt act must be laid, and must ke proved. No case is cited by Hale in support of them, and I am strongly inclined to the opinion' that, had the public reived his corrcteU inead6f his rvt. thevWOVH, If not expunged, have been Restrained in their application to casesof a par ticular descrip'jon. Laid down ge nerally', and. applied universally to U cass of treastn, the are repug; nant to the principles fiw which Hule contends, lor which 11 the elemen tary writers contend, nd fromwrjich j toufts have in no case, enner ui rctly reported 'otrfeferfed to in the books, ever depamd. cHTie-prin-cipleb are, thni tttefffcictment must give notice of 'the offence, that the at cubed is only bound to answer the particular charge which the indict ment contain,?, and that the overt act laid is that particular charge. Undlr u4h circum-stances, it is only dointr iusnct to Hale to examine his 5 diaa, mid if they will aumit of being Uiid ;ito( d in a li milted sense, not rpugn;.nt io his oWu doctrines nT o tht general principles of law, to I understand th..m in that sense. ' If mahv conspire to coun'.e'rfeK, or counsel or aut t i u .d one fcf tiiem doih ttie fact ufson .hat cout- f s U ng oi ( oiuoiracv, u i trr-asoi.J all aiv they may he a tru.u.UJ ?or f ouniet u ti ueiu-raUy w:thr. this st;vut- , fos in uuh eae, in tret ton.1 ril arr oriiici oals." :hev mav he all tru.u ted 1 V. . a 1 is 'aid ciown a apphc ' d '-l ' sinrrly to the treason of rou.-t-.-rff v.-.rr- i.hc coin, aiui 13 not jrpuu ;)'. Hi?ie to oiher trti-.soi-.s. Had he t:ti ip;iHld to app'.y the principle uijiver saliy he would huv-. stated it as general proposition, ht would hav laid st down in traii' g n ib? branches of the statute, as well i . . i i v . i .. ; m tne cnaprer resptciing in.- cm be - Would have laid ii'tlown wht i treatinp on -indictments gentrnllj I But he has dont neither Every ren tr.-ent bearmg in any nianner on th pi'nt v'hioh is to be found in Lok! II de- while -on the doctrine of lev; ing war, r on th. jreilcral doctnt -.f inclt- tmeuts, mUita'es against tt opinion that he considered the pr -position as more ey.tensive than lr has decided it to be. No cou cuhl b- ju-tiii .'d in excenclinjj; tt : dictum of a judge beyond us term , t.-j cases in wi'.ich he has express' treatedj to v hich he has noi himsof app'ie'd it, and on which he as vveli a thers has delivered opinions whkl that dirtuvn weuld 'over-rule, Thi, i would b the less justifiable if theri j should be a clear legal distinction indicated by the ttriiiA in which thl edge has e?, pressed himself betweel thd pa: t'cular case to which aloi he ihas applied the diVtum. & othej caies tr which the court is requirel m extend it. I herf ib this, r.h-ftr distiurtmii I i( Tliey may, suys Judge 1 ale, be iiv ! dieted for counterfeiting generally) j But if many Conspire io levy war, 1 j some actually levy St, they may nt? iv. indicted for levvinc? war eenerJ- y tf) in the indidmcnt, not require ati overt att of counter feiting the coin to be laid. If in a particular case, where a general in- ; dictment is sufficient, it be stated that the crime may be charged ge nerally according to the legal effect of the act, it does hot follow, that in other cases where a general indict ment would be insufficient, where an oveft act must be laid,' that this o vert act need not be Hid according to the real facU Hale then is to be reconciled with himself, and with general principles of lawjp only by permitting the limits whicli he has himself gigti to his own dictum, to remain whttfne has placed them. $ 10 page 288, Wale is speaking ge nerally of the re cei v e vAaytjgitor, andVs istating in what itrtn feoeiver partakes of an accessary. 1st-" His indictment must be special of me re ceipt, and not generally that he did the things which may be otherwise lYicase of one that is procurerj'coun- serlor or cunsenter." The wotefs 46 may be othervise," do not clearly convey the idea (.hat it is universally otherwise. In til ca ses of a receiver the indictment must be special on the receipt, arid not general,1 "The words it " ?nayhe o therwise in case of a procurer, c." signify that it may be otherwise in all treasons, or that it may be other wise m some treasons. If it rmy be othrrwie in some treasons wilkout himself, as wcil as ot ether writers, but cannot be otherwise in all trea sons without such contradiction&he fair constr.uctioff is, that .Hale wed these words in their restricted sense ; that he used them in reference to trcasoni, in which at general indict ment would He, not to treasons where a general indictment would not lie, but an overt act of the treason must be charged. The two passages of Hale thus construed, may perhaps be law, and may leave him consis tent with himself. It appears to the court to be the fair way of construing them. These observations relative to the passages quoted frqm Hale, apply to thai quoted from East, who ob visly copies from Hale, and relics upon his authority. Upori this point Reeling 26, and 1st II de 626, have also bten relied upon, it is suieG in ootn, mat u a man be' indicted as a principal and cesary, he cannot afterwards be indicted as accessary before the fact. W hence it is inferred, not without ' , sson, that evidence of accessorial mil may be received on such an in dir.tmtnt. Yet no cse is found in liich the question has been made j d decided. The objection has ne ver b en tjkefi at a trial and over ruled, nor do the books say it would ot over-ruled. "NY ere such a case produce.!, us application would be questionable. Keeling says, an ac cessary before the fact is qUQdam tnedo in some rh nuer guilty of the UiA. uic law nicy nin i ruuirt inai i he manner should be stated for in .eiony it dos not require that an o vert act shouid be Liu The indict tuent therefore may general. Bus dri overt act cf levying wai muht be 'aid. The&e cases then ptovc in their utmost extent no more thn he cases previously cited from H-le i.nd E.ist. This distinction between mdicments wh ch nsay state the fact generally, oisd those Which must lay speoiilly, bear sonu analogy to a general and a special action on the case.. In a general action, the de J a ration may lay the assumpsit ac cording to the legal effect of the transaction ; but in a special action on the case, the declaration musi state the material circumstances sru- ? Iy, and they must be proved as sta ted. 1 his distinction also derives some aid from a passage in Hale, 625, immediately preceding thar wiich has been cited at the bar, He says, l If A be indicted as prin ipal, and B as accessary, bffort or ex, and both be acquitted, yet B nay be indicted as principal, and the former acquittal as accessary is no bar'' The crimes then are not the same i id irt3y not indifferently be tried under the same indictment. But why is it that ail acquittal as prin ci paf tn&jr be, pleaded in bar to an in .iri men ai accessary, while ari ar- Iquiuai as accessary ra&y not be pleaded in b rt fan indictment as' principal ? "ti lv be anawered that , the acceBSonalj crime may be givtn in evidence on ilm indictment as prin cipal, but that the principal crime may riot be given in jevidence on an indictment as accessary, the ques tin recurs, . on what legal giound does this distinction stand? lean imagine only th"s,v An accessary l)e ing quodam thodo a principjd, in in dictments where the law does not require the manner to be stated, which need not be pei a 1 ,e vi d e n ce of accessorial guilt, if the punish ment be the same, may possibly be received ; but every indictment as an accessary must be special. The very allegation that he is an acces sary must be a special allegation, & must sjiew how he became an acces sary f The charges of this special indictment therefore must be proved aslaid, and no evidence which pioves the crime in a form substantially dif ferent can be receivtd. If his be the legal reason for the distinction, it supports the exposition of these dicia which has been given. If it be nothe ltgai reason, I can conceive nd other.. But suppose the lav to be as is contended by the cpunsel for the U. S. Suppose an indictment charging ah individual with personally assem bling among others snd thus levying wai, may be satisfied wilh t he proof that he caused the assemblage. What effect will this law have upon this case ? 4$ The guilt of the accused, if there4 be any guilt, does not consist in the assemblage, for he was not a mem ber of it. The simple fact of as semblage no more affectione absem man than another His guilt then consists in procuring the assemblage, and upon this fact depends hi cri minality. The proof relative to the charat ter of an assemblage must be the same wheth.tr a man be preeei t or absent. In the general, to charge any individual with the guilt of ari I ssemblagt, the fact, of his presence j n unt be proved It constitutes a t essential pari (f th overt act. If' then the procurement be substituted in the place ct p estnee, does v nm also consiitut; afi es,ehiial part ot the oven ret ? Must it not al o re proved? Must it not br proved in he same manner that presente must j be proved f If in one case the pre I senee of rhe individual makes the uih of the assemblage his guilt,- 8c in the o(her c5e . the proctirement bv 'the individual mak s th gui't of the assemblage his guilt, then pre sence and procurement are equally component paits of the overt act, 8c equally require two witnesses. Collafeial points riiay, say the bociks, be proved according to the course of the common law : But is this a collateral point ? Is the fact without which the accused does not participate in the guilt of the assem blage if it was guilty, a collateral point ? This cannot be. The pre sence of the party, where presence is necessary., heing a part of the o vert act, must be positively proved by two witnesses. No presumptive evidence; n tait3 from which pre sence may be conjectured or inferred uiil satisfy the constitution and the law If procurement tak the pla. e of presence, and becomes part of the overt act, then no presumptive evt-! dence, no facts from which the pro-j! curemcnt may be conjectured dr in j; ferred, can satisfy the constitution and the law The mind is not to be : ; led to the conclusion that the indi-! ; yidual was present by a train of ton- -1 jectures, on inferences, or of reason- ing; the fact must be proved by two' witnesses. iNeitner where procure- ment supplies the want of presence, is the mmd tb be conducted to the two witnesses, and jnust have been committed w,thm the district. 11 u De saio tnat the advising or procurement of treason is a seem transaction which can scarcely ever be proved in the mam er required by this opinidh ; the answer which will readily suggest itself is, that the difficulty of proving a Sact will .... j j -..v..iuiL wirnnm nrnot. HCertainlr it v?l mit juttlty convic- rttea ifrtthent & .... eunjuuti mm mc accusea procured since tne statute ot vf '.Viiatrt 8c Marv ihe assembly, by a train of eonjuc- he who advises or procures k tr-ai tures, of infu-eBces, or of reasoning; son, may in fc gland be charged as the fact itself must be proved by. having cOirimitted that tm k witpess in a case vhere the consul tution requires two. The more ror rect inference from this circumstance would seem to bp, that the advising of the fact is not within the constf tutional definition of the crime. To advise or procure a treason is in the nature of conspiring or plotting trea son, which is not treason in itself. , If then the doctrines of Keeling. If ale, and-East, arc io be understood in the sense in which they are press ed by the counsel for the prosecii tion and are applicable in the U. S the fact that the accused prorurett the assemblage on Blannerhassett'a isla d must be proved, not circurri& Stautially, but positively, by two wit ntsses, to charge him with that a semblage. ; But theie are still other mot important considerations whicli must be well weighed before this doctrine can be applied to the U. S The 8th amendment tb the corf stitution has been pressed with i teat force,' and it is impossible not to feet its application to tbii po-nt. The accused cannot be truly said to be " informed of the- nature and cause of the accusation," unless the indict ment shall givejiim that notice which fnay reasonably suggebt (o hlrn the p)int on which the accusation turns so ;hat Jie may know the course td be pursued in his defence. It is also well Worthy of considera tion, that this doctrine, so far as il respects treason, ta entirely support ed by the operation oj the commosi law, whicli is said to convert the accessary before the fact into rhe principal, and to make 'hi. act of theprincipa his act. Theaccesvar before thfc fac,t is not said to.h:vcfr levied war, He is net said to bei guilty under the statu a But ihcs common law attaches to him the guilt f that fact which he h ad& : vued or procured and as contended mukes it hiacti This is the operas tion of the commrjn law. no the cm ! 4. : ' r . L- . - - . I'ciauui! ui siatiie, it i ati operation then which ch only be P'-rl inud ivhere the ; omm"it law exists o nrrform it. ft is the ctta u! .i toe co-1, on Jaw, and he ir -r, i re aippbsts is creator. Tel t e- d. ik.h thai lm ddct'ine is ap- i 1; able to the U. J. w uld eem td i:: ply th decision thai the U. States as a nation, have a common :xp whit h creat'5 and defines the pi nishme n of enmes accessorial in 'heir np.turei It woiil ' imply the !urher decisioti that th.,se access r ritd crirnes me not, iu the Case of ueason, excluded by -i he definition of tr- ason given in the constitution I will not pretend that I haVr. not in-divir-ualiy an opinion on i hesc points but it is one which t should give only absolutely requiring it, unlesfc I could confer respecting it with the judges oi the supreme court. I haVe Said that this ducirine can not apply to the U. S with ut un plying those decisions respecting the common law which I huve stated ; becat,ej should it be true as is con tended, that the constitutional defi nition of treason comprehends hint who advises or procures aft ajuenv blage that levies war, it would' nofc follow that Such adviser or profiuref S might be charged as having be eri i present nt the assemblage. If iUe ; adviser or procurer is wi hin the de finition ot levying war, and, indie pendent of the agency of the com mon law, doca actually levy wafV then the advisement or procurement is an overt act of levying war. If tfc be the overt act on which he is to) be convicted, then itmustbe charged in the indictrnnt,j for he can onl be convicted in proof of the overt acts which are charged. , I o render thrs distinction frirre ; intelligible, let it be recollected that although it should 'be' c?fWdei w virtuq of the common law operati which is said, far as rcsbects ion resoects th indictment, to timte the accessorial to the principal effence, and permit them to btr charged uk cne, yet it an never be conceded that he wh commits one overt act under the sta tute of Edward, can be charg ed and convicted on proof of another overt act. It then nrncirmnt. hi or, vert act of treason under th- con - . t , I! I 9 1C ft- hi 1 M If f
The Weekly Raleigh Register (Raleigh, N.C.)
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Oct. 29, 1807, edition 1
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