fectly immaterial; because the indictment gives notice which offence they mean to prove; whether committed on the day stated or not, is an inquiry of no importance; that the offence had been committed is the charge. For instance, gentlemen are not bound to prove the offence on the day on which the indictment charges it to have been committed: the 10th of December 1806. On Blannerhassett's island"—but it gives notice of treason committed there; and they must be prepared to prove it committed' there. The gentleman says, that the place is not material. I acknowlege that the party, who brings forward the accusation, is not bound to specificate the spot in the county. If he charge the offence within the county, it will suffice. If the accused have done any thing that may be construed into an act of levying war, it can only be proved where laid. But the gentleman says, that they have a right to go into the whole county of Wood, and prove the crime committed any where there. We might admit it; but the admission would avail them nothing. Even on that ground there is not a word proved that we were there. But when an act is located, it must be proved where, as stated. Reason requires that it should be proved where the charge has given notice of its having been done. Authorities also support it; and gentlemen must be bound by authority and common sense. But though the prosecutor is not bound to specify the particular spot where a crime has been committed, yet if he do fix the spot, he must be bound by it. Particular expressions in an indictment may make the place very material, when otherwise it might not be so.

2 Hawkins chap. 46. section 34. is conclusive on this point: "Thirdly, that where a certain place is made part of the description of the fact, which is charged against the defendant, the least variance as to such place between the evidence and indictment is fatal; as where a trespass in taking away goods, or any other offence, is alleged in such a parish in the house of J. S. or in such a parish in a playhouse in Lincoln's Inn-Fields; and upon evidence it appears to have been done in the house of a different person, or that there is no playhouse in Lincoln's InnFields. But it is a settled rule, that a place laid only for venue in an indictment or appeal is no way material upon evidence; but that a proof of the same crime, at any other place in the same county, maintains the indictment or appeal, as well as if it had been proved in the very same place."

You may lay the offence in any parish in a county; you may prove it in a different parish, but within the county. But if you fix on a spot, and describe the offence as committed in that particular place, if there be no such place, or if the evidence. will not prove the act committed at that place, the prosecution must fail. It is true that if the place were laid as a venue, it

would not be material, provided it were proved to be any where within the limits of the county. But Blannerhassett's island is not laid as the venue, but is made a part of the description of the fact, charged against the accused. The venue is the county of Wood within which the offence was committed. When the crime is laid at Blannerhasset's island, gentlemen have made it material by giving it locality; and as they have given it this locality, they are bound to prove it as laid. The decision in 2d Salkeld's Reports p. 651. proves that where an action is local, it must be laid and proved accordingly; and that if a person give a locality to an act, though he needed not to have done it, yet he must prove it accordingly. You will recollect that the same principle is stated in Gilbert's law of evidence: that when a party has given locality to any act, he must prove it as laid, though he needed not to have laid it so. The same principle is also laid down in Eden's Penal Laws p. 317.

In Fries's trial before judge Iredell, the same principle has also been sanctioned. The indictment laid the overt act at Bethlehem in the county of Northampton. In the charge or instruction of judge Iredell to the jury, he says, that the prosecutor by laying the overt act in the town of Bethlehem, instead of the county of Northampton at large, was bound to prove the act at Bethlehem; or that the prisoner must be acquitted. Several passages in his charge, in Fries's trial p. 171. prove this: "Gentlemen," said he to the jury, " if you are not well satisfied that the overt act of treason was committed at Bethlehem, and that that overt act is supported by the evidence of two witnesses at least, you will not find the prisoner guilty." Again he says: "As I before observed, there must be two at least to prove, that the act of treason was committed at Bethlehem." The same conclusion cannot but be inferred from another part of his charge p. 175: Again, if no evidence could regularly be admitted out of the county, until both the fact and intention were established where the fact is laid, the consequence would be, that there ought to be some way of taking the opinion of the jury, whether they believed that the crime was committed at Bethlehem, before the court could proceed to extraneous testimony;" which shews as clearly as the other passages, that in his opinion, the overt act must be proved to have been committed at Bethlehem, the place laid in the indictment.

I presume these authorities will at least excite some doubt in the gentleman's mind, that he may be mistaken. If he be not so, then we must only be prepared for what they can prove to have been done in the county of Wood at large instead of the island, to which the indictment confines the levying of the war. But if other people were there and levied war, and you make us answerable for their conduct on the ground, that it was by our advice

and encouragement, without stating it, you tell us in effect: " make you responsible without giving you any notice."

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But gentlemen say that the indictment does not charge colonel Burr with being on the island, and therefore it need not be proved. If the indictment say that he levied war on the island, does it not necessarily allege that he was there? When it charges that he committed an overt act there, is it not the legal and fair inference, that he was at the place when he committed it? When a party is said to have done any act at any place, is it not naturally understood that he was at the place where he is

thus said to have committed the act?

But the gentleman says, that he has authority to shew, that he may be charged as present though not there; and he cites in support of the assertion 1 Hale p. 214, 238 and 1 East p. 127. Let us see whether any thing in Hale justify it. In p. 214. his words are, "But if many conspire to counterfeit or counsel or abet it, and one of them doth the fact upon that counselling or conspiracy, it is treason in all; and they may be all indicted for counterfeiting generally within this statute; for in such case in treason all are principals." We must consider only as much of the precedents as from the reason of the case applies to the subject now in discussion. Now Hale has not said that those persons, who, having conspired to counterfeit, become traitors by one of them having done the fact, upon that conspiracy, were not present. He says nothing of their being present or absent: but that if several conspire, and only some of them act in pursuance of that conspiracy, they are all equally guilty: that if two conspire to counterfeit the coin, and one do it according to the intention of that conspiracy, they are both equally guilty of treason. It is the nature of a conspiracy, that what two conspire to do may be done by one, whether the other be absent or present. Hale says nothing as to their being together; or whether an absentee, or a person who only advises, can be charged as present and an actor. He leaves these questions just where they were, unexamined and undecided. If two persons conspire together for any unlawful purpose, as to write a letter to cheat a third person, and one of them write the letter, the other being present is considered as a conspirator, and as criminal as the writer of the letter; and they are indicted as joint conspirators. So in coining money: if two have joined in a conspiracy to counterfeit, and a part of the conspiracy be, that one shall act upon that conspiracy; and he doth counterfeit or coin false money accordingly, they are equally guilty; and the act of one is thus the act of the other under the law against coining false money in England. But he does not say, that the party were absent. He refers to no authority. It is a mere inference and can have

no influence on this case. It can have no influence on accessorial agency.

Here though it does not strictly apply to this branch of my argument, I may draw a conclusion from the authority adduced by themselves which operates against them. In this very page he had just said before that "there must be an actual counterfeiting; for a compassing, conspiracy or attempt to counterfeit is not treason within this statute without an actual counterfeiting." On the same principle, if the doctrine be applied to levying war, there must be an actual levying of war; and a conspiracy or attempt to levy war is not treason within the words and meaning of the constitution. So much for p. 214.

Let us now turn to page 238. and see whether it can furnish any justification of the gentleman's argument: "Though the receiver of a traitor, knowing it, be a principal traitor, and shall not be said an accessory, yet thus much he partakes of an accessory, that his indictment must be special of the receipt, and not generally that he did the thing, [which authority we have repeatedly urged against them] which may be otherwise in case of one that is a procurer, counsellor or consenter. Thus it was done in Conyer's case, Dyer 296."

This authority he relies on to shew that a procurer or an accessory before the fact need not be specially charged; that he may be indicted generally, that he levied the war. The words "which may be otherwise in the case of one that is a procurer," &c. are depended on. So it may be otherwise in that species of treason compassing the king's death. I have no doubt that in that species of treason, any degree of accessorial agency before the fact, as counselling another person, writing a letter, &c. would be construed an overt act of compassing the death; and therefore the accessory before the fact might be indicted generally for having compassed the death of the king. But it would not be so in the case of levying war or any other treason. If he mean any thing else, there is not a shadow of authority for it. He cites a case in Dyer which does not justify the construction for which the gentleman contends. That case only shews that a receiver of a false coiner was indicted specially for the receipt; and it was deemed a misdemeanor. That was an indictment for receiving a coiner, knowing him to have counterfeited or coined false money; and it specified the receiving him particularly; but judg ment was not rendered against him, because it was judged to be only a misdemeanor. It states nothing as to the manner in which an accessory before the fact ought to be indicted; but it may fairly be inferred from it, that he ought to be charged specially; as the indictment in that case was special. 1 East, page 127. merely refers to those passages of Hale which have been just commented on, but does not explain them; but he fully explains

himself in pages 100, 101. of the same volume; which, though already referred to, I beg leave again to read: "In regard to all acts of approbation, incitement, advice, or procuring to that species of treason, compassing the king's death," &c. there is no doubt that the party may be tried before the person who acted upon such incitement; because the bare advising or encouraging to such actions is in itself a complete overt act of compassing; and it is totally immaterial whether the attempt were ever made or not. The case of Sommerville proves no more than this, (though the rule is there laid down in general terms) that a person aiding or procuring a treason may be tried before the actor. But with regard to all other treasons within the 25 Ed. 3. if one advise or encourage another to commit them, or furnish him means for that purpose, in consequence whereof the fact is committed, the adviser will indeed be a principal; for such advice or assistance would have made him an accessory before the fact in felony; but if the other forbore to commit the act thus advised, the adviser could not be a traitor merely on account of his ineffectual advice and encouragement, though his conduct would be highly criminal; for it cannot be said that a person procured an offence, which in truth never was committed. In these cases therefore the treason is of a derivative nature, and depends entirely upon the question, whether the agent have or have not been guilty of such treason, the proof of which can only be legally established by his conviction, if he continue amenable to justice, or his attainder by outlawry if he abscond; unless the accessory choose to waive the benefit of the law and submit to a trial."

Here East explains himself where he means that a man may be indicted generally, and shews that where a party is to be considered in an accessorial point of view, he cannot be brought to trial, except by his own choice, until the principal be convicted or outlawed. Here those persons, who advised or procured a treason before, are placed on the same footing with those who receive a traitor after the fact. But any act of an accessorial nature may be a complete overt act of that species of treason which comes within that clause of the statute which is against compassing the death of the king, queen, &c. This is the most comprehensive treason, the most easily prosecuted, and the most liable to be abused for the purpose of tyranny and oppression. As Aaron's rod swallowed all other rods, so this treason for compassing the king's death swallows all other treasons.

2 Hale p. 223. (which see before) shews that though in high treason all are to be considered as principals, yet accessories before and after the fact (who are both put on the same footing) are to be proceeded against only as accessorial agents; that the accessory shall not be put to answer of the receit or procurement, till the principal be outlawed, (or attainted, &c.)