be done, to which act the offender must be accessory, and out of which his guilt must spring before he can be converted by this rule of law, into a principal offender. It seems therefore, that though in the event of the prosecution such an offender may be considered as a principal, yet, in his progress towards conviction, he ought, from a principle of natural justice, to be considered merely as in the nature of an accessory, before or after the fact; and if under such a consideration he were tried, before the person who actually did the fact, the absurdity might follow, that the accessorial agent may be convicted, and the principal, who did the act, and on whose guilt the offence of the accessory must alone depend, may be acquitted."

The authorities therefore all correspond; and, supported as they are by the strongest reasons drawn from the rules of common sense and natural justice, place the position I have contended for, beyond the reach of controversy.

But it is objected, that no adjudged case can be produced in support of it; it is a sufficient answer, that there has never been an attempt, except in the case of Lady Lisle, to charge an accessory in treason before the principal. The counsel on the other side must rely on that decision of Jefferies, or they must abandon the prosecution; and even that case is conclusive in our favour, for judge Jefferies's sentence was annulled, and the attainder reversed by act of parliament, expressing strong disapprobation of his conduct.

I cannot quit this point without remarking, that all the authorities go upon the supposition that the indictment must be special; a point I already have insisted upon. It is barely possible that an objection will be made, which may be thought to deserve an answer, that "the accomplice may waive the benefit of the law, and submit to a trial;" and that as the accused has done so in the present instance, the objection now comes too late. A reference to the authorities and a moment's consideration will satisfy the court that there can be no force in this objection.

The indictment gives us no information of the nature of the charge; it is against colonel Burr himself, who had no reason to doubt that it was meant to be proved, that he in person committed the overt act of treason in levying war as a principal in the first degree. The charge, that the act was committed by him in conjunction with persons unknown, excludes the idea of a derivative treason or a responsibility for the act of any particular individual or set of men.

But if it were specially charged, and the persons, whose acts the accused was to answer for, were named in the indictment with every necessary description of time, place and circumstances, the party going to trial according to the course of the court, VOL. I.

4 D

without a special prayer to be tried before the principal, and an express waiver of his right entered on record, could not be concluded from taking this exception. The words, "waive the benefit of the law," mean an express renunciation of a right, and none such certainly has been made in the present instance.

But admit that all these points are against us, still there must be some legal proof adduced of the guilt of the principal who committed the act, before the prisoner can be made a traitor by relation. Admit, that a person may be generally charged as present, who was absent; that the record of the conviction of the principal is unnecessary; and that they are at liberty to prove the act of the principal by mere parol testimony; yet before colonel Burr can be connected with Blannerhassett, they must prove an overt act to have been committed by Blannerhassett, and of this the court and not the jury must judge; that is, the court must judge, what in law constitutes an overt act of treason, though the jury only can decide, whether such an overt act have been in truth committed or not. Admitting the correctness of the statement of the only witness whose testimony bears upon this point, Allbright, (who is at one time in jest, at another in earnest) yet still there is nothing like the semblance of an act of war. Admitting further, for the sake of argument, that what he states amounts to proof of an overt act of war, yet still he is a solitary witness; and as the law requires two witnesses to prove the same overt act of war it is impossible to connect us with him. Every inference, that can be rationally drawn from the facts proved by this single witness, may be drawn by the jury; but this cannot supersede the necessity of complying with the constitutional requisition of proving the overt act by two witnesses.

According to the universal doctrine of all authors on this subject, the overt act, which is to be thus proved, must be an act of public hostility (not a mere private act) and must be particularly set forth in the indictment. The principle is maintained by writers and confirmed by the form of the indictments.

1 East's Crown Law, p. 116. "In every indictment for high treason upon the stat. 25 Ed. 3. for compassing the death of the king, or for levying war, or adhering to his enemies, the particular species of treason must be charged in the very terms of the statute, being a declaratory law, as the substantial offence, and then some overt act must be laid, as the means made use of to effectuate the traitorous purpose." "The overt acts so laid are in truth the charge to which the prisoner must apply his defence. And therefore it is in no case sufficient to allege, that the prisoner compassed the king's death, or that he levied war against him, or adhered to his enemies; for upon a charge so general and indefinite, he cannot know what acts he is to defend." In page

121, he states, however, that "the whole detail of the evidence need not be set forth." "The rule, prescribed by the statute of William that no evidence shall be admitted or given of an overt act that is not expressly laid in the indictment,' is in truth no more than the common law itself directs generally. For in no case is a prisoner bound to answer unprepared, for every action of his life, but only to that which is the subject of the indictment against him." The true sense of the clause is, "that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be admitted in evidence, unless it be expressly laid in the indictment; but an overt act may be given in evidence, though it be not expressly laid or not well laid in the indictment, if it amount to direct proof of any overt act, which is well laid. Thus in the case of Rockwood (p. 122) who was indicted for compassing king William's death, two of the overt acts charged were, that he and others met and consulted upon the proper means for way-laying the king, and attacking him in his coach; and also that they agreed to provide forty men for that purpose. Upon this indictment the counsel for the crown were allowed to give in evidence a list of the names of a small party who were to join in the attempt, of which the prisoner was to have the command, with his own name at the head of the list as their commander; for though not charged in the indictment, yet it amounted to a direct proof of the overt acts laid, viz. the meeting and consulting together how to kill the king, and then agreeing to provide forty men for the purpose." The same doctrine is laid down in p. 123. but in that page it is stated that "if the overt acts, offered in evidence and not laid in the indictment, be no direct proof of any of the overt acts charged, but merely go to strengthen the evidence or suspicion of some of those overt acts by a collateral circumstance, such evidence cannot be admitted notwithstanding the opinion of Lord Hale to the contrary. As in the case of captain Vaughan, before cited." And Foster in p. 194, states the same doctrine, that the overt act must be laid in the indictment. "In every indictment for this species of treason, and indeed for levying war, or adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge to which the prisoner must apply his defence, and if divers overt acts be laid and but one proved, it will be sufficient." The object of charging the overt act is to give the accused full notice to come prepared to answer it.

Here Mr. WICKHAM observed, that as the usual hour of adjournment was now past, he could not finish his argument to-day, but wished to be indulged with permission to resume it to-mor row, which was granted; and the court adjourned.

FRIDAY, AUGUST 21st, 1807.

As soon as the court met, Mr. Wickham observed that he would by no means wish to take up the time of the court unnecessarily; but that it might not be improper briefly to advert to some parts of his arguments yesterday. He then proceeded:The court will recollect the several points which I endeavoured to establish yesterday. The first was founded on the absence of the accused from the scene of action, at the time of committing the act charged in the indictment; and the second on the necessity of proving the act as laid. The third point was, that the guilt of the accused, if it exist at all, is in its nature only derivative, and cannot be proved without first producing the record of the conviction of the principal.

Hawkins, in his Pleas of the Crown, ch. 29. sect. 2. p. 440. as I stated before, is the only authority which says that the accessory may be tried before the principal; and his commentator Leach denies it, in his note subjoined.

The rules of law require, that the prosecutor, before he can convict the accessory, must produce on his trial the record of the conviction of the principal. Foster supposes that the production of that record is sufficient to put the accused on his defence. But he admits that it is no more. Hawkins says that such evidence is only introductory to other testimony, which is necessary to connect him with the principal.

The court will observe that Foster lays down the doctrine with great clearness, that the conviction of the principal is ne cessary to be produced, in order to put him on his defence; but that the accessory may prove that the principal is innocent, notwithstanding the production of the record of such conviction. In pages 364, 365, he says that "The accessory may be brought to justice, notwithstanding the principal has been admitted to his clergy or pardoned; and very proper was this provision. For in the scale of sound sense and substantial justice, the only questions, in which the accessory can have any concern, in common with the principal, are, whether the felony were committed, and committed by the principal. These facts the conviction of the principal hath established with certainty, at least sufficient to put the accessory to his answer. And therefore in whatever manner the principal may have been treated after his conviction, seemeth to me to be a matter perfectly foreign to the question, whether or when the accessory shall be brought upon his trial." Sec. 3. "At a conference among the judges upon the case of M'Daniel and others before reported, a general question was moved how far, and in what cases the accessory may avail himself of the insufficiency of the evidence in point

of fact, or of the incompetency of witnesses in point of law, produced against the principal; and in what cases he may be let in to shew, that the facts, charged and proved against the principal, do not in judgment of law amount to felony. There was in that case no occasion to enter far into these questions, since the facts, upon which the point of law then under consideration must necessarily turn, were all found by the special verdict." p. 365. "If the principal and accessory are joined in one indictment and tried together, which I conceive to be the most eligible course, where both are answerable, there is no room to doubt whether the accessory may not enter into the full defence of the principal, and avail himself of every matter of fact, and every point of law tending to his acquittal. For the accessory is in this case to be considered as particeps in lite, and this sort of defence necessarily and directly tendeth to his own acquittal. When the accessory is brought to his trial, after the conviction of the principal, it is not necessary to enter into a detail of the evidence on which the conviction was founded; nor doth the indictment aver that the principal was in fact guilty. It is sufficient if it reciteth with proper certainty the record of the conviction. This is evidence against the accessory sufficient to put him upon his defence. For it is founded on a legal presumption, that every thing in the former proceeding was rightly and properly transacted. But a presumption of this kind must, I conceive, give way to facts manifestly and clearly proved. As against the accessory, the conviction of the principal will not be conclusive; it is, as to him, res inter alios acta. And therefore if it shall come out in evidence, upon the trial of the accessory, as it sometimes hath, and frequently may, that the offence of which the principal was convicted did not amount to felony in him, or not to that species of felony with which he was charged, the accessory may avail himself of this, and ought to be acquitted." Hawkins, p. 456. b. 2. c. 29. § 47. says, to the fourth point, whether the principal and accessory may be both tried by the same inquest, and in what manner they are to be tried. It seems to be settled at this day, that if the principal and accessory appear together and the principal plead the general issue, the accessory shall be put to plead also; and that if he likewise plead the general issue, both may be tried by one inquest; but that the principal must be first convicted; and that the jury shall be charged that if they find the principal not guilty, they shall find the accessory not guilty. But it seems agreed that if the principal plead a plea in bar, or to the writ, the accessory shall not be driven to answer, till such plea be determined." In the note subjoined. the foregoing authority of Foster, and Smith's case, O. B. 1784, p. 69. are referred to; and

As