case appointed to try Throgmorton. And a reference to the very situation of the prisoner himself and the privileges he enjoys on his trial from our constitution and laws forms a striking and honourable contrast to the arbitrary proceedings before those tyrannical commissioners. And secondly, to shew that it has nothing to do with this case, as they are entirely dissimilar.

[Here Mr. Mac Rae read nearly the entire report of this case, but it is omitted here, because the substance of it is contained in the quotation made by Mr. Wickham from Judge Tucker's Blackstone, which see before.]

Instead of being tried by a regular constitutional tribunal, dependent on its honourable character and good behaviour, for its continuance in office, he was tried by those unfeeling commissioners, appointed by, and entirely dependent upon, the capricious will of their despotic sovereign.

Another important fact, which happened to that unhappy man and which can never happen in this country, is, that he was deprived of the benefit of testimony in his favour; that a witness whom he called to testify in his behalf was not permitted by the court to be examined, but was ordered out of court. That is one of the execrable cases which are relied on for the purpose of shewing that this cause is not properly conducted. But it is impossible for Mr. Wickham or any other gentleman to see any resemblance between it and this case, tried in this country, where the excellent trial by jury exists in its purity, before a tribunal selected constitutionally for its wisdom and integrity and sworn to maintain the constitution and laws and the rights and privileges of their fellow citizens. That case is very different from the case at bar, in other respects. Throgmorton had no counsel (he was obliged to defend himself, and a most able defence he made, but this did not extenuate the injustice of his persecutors). Law books and even an act of parliament which went to his complete exoneration, were withheld from him. The confessions of others were read in evidence against him, without shewing any connexion between them, and without producing them in court, though they were in custody and could easily have been brought forward; and a man who was under sentence of death was admitted as a witness against him. Do any of these oppressive circumstances appear here? Has that case any reference to the case of the prisoner? Instead of having no counsel, he is defended by a greater number than any man ever was defended by in this country, and by gentlemen of the most distinguished talents. Instead of having no defender, he has six, and among them three attorneys general. One of them for many years was attor

ney general of the state of Virginia and afterwards of the United States [Mr. Randolph;] another was the late attorney general of the United States [Mr. Lee;] another was attorney general of Maryland for a great many years [Mr. Martin;] and the pri soner himself was a long time attorney general of New York. How exceedingly unlike the case of Throgmorton, who had no counsel, and who, though he defended himself, was not patiently listened to by the court nor allowed to defend himself as fully as he could have done. But in defending himself so well before the jury he defended the rights of others still better. Throgmorton's witness was driven off. The witness of the prisoner has gone away; but it is very remarkable that some of the witnesses of the United States have gone off. I do not charge the gentlemen or the prisoner with having induced or having had any agency in their departure. One of our witnesses had drunk freely, and it is supposed that this accident occasioned his going off. We have been obliged to coerce another witness to remain. The difficulty in this case has been only experienced on the part of the United States. There is no sort of resemblance between this case and that of Throgmorton, as Mr. Wickham seems to have supposed. On what principle then can a comparison be justified between them? Mr. Wickham in his argument referred to cases of accessories before the fact; but instead of shewing cases analogous to or really resembling the situation of the accused, he adverted principally to cases of receivers of traitors or accessories after the fact. Instead of attending to the cases of those who are accessories before the fact, in endeavouring to shew, as he imagined, some analogy or resemblance between them and the situation of the accused, he has referred to cases of receivers of traitors, and was pleased again to suppose that we relied on the the decisions in the cases of lady Lisle and Elizabeth Gaunt; cases where accessories after the fact were indicted before the principals in treason. Whatever may be the law of England with respect to accessories after the fact, however disposed or inclined we may be to rely on British authorities, we intend to place no reliance on those cases nor indeed to admit their validity; we disavow them. Sir, we would not contend that persons acting in this character of receivers could be indicted and punished as principals in treason. Suppose an overt act were actually committed on Blannerhassett's island, and that some persons concerned in that treason effected their escape into some other part of the United States and were entertained with meat and drink, by one who had no sort of agency in the treason (or was entirely ignorant of it) it would be an unfair construction to contend, that such a receiver was or could be regarded as a principal in treason. This is a doctrine which we should not contend for, and it was unnecessary for Mr. Wickham to trouble himself with its

discussion. Lady Lisle was tried before the cruel Jefferies (as he is very properly called) for having entertained John Hicks, (who was said to have been engaged in the rebellion) for a single night. His conduct was disgraceful and arbitrary in the extreme. He abused and almost frightened out of their senses some of the witnesses. He intimidated the jury who were disposed to acquit her, and though he ought to have been of counsel for the prisoner, as she had no counsel, he testified and insinuated against her. In giving his charge to the jury, he expatiated on the evidence against her, but omitted what operated in her favour. Though John Hicks had never been tried, she was convicted and executed. Sir, we should never have received or urged this atrocious case as an authority.

The prisoner has never been regarded as an accessory before the fact. He is the first mover of the plot; he planned it, he matured it; he contrived the doing of the overt acts which others have done. He was the Alpha and Omega of this treasonable scheme, the very body and soul, the very life of this treason. This being his situation, it would be idle in the extreme in us, to regard him as an accessory before the fact. We regard him not as such, but as principal and chief mover of the whole plan. Mr. Wickham resorted to the authority of Foster, for the purpose of shewing who may be called accessories and who principals; and that he who is an accessory is not indicted as a principal. He took it for granted, that we could not shew that the prisoner acted in any other manner than as an accessory. In illustration of his argument, he referred to the form of the indictment, in the 6th page of Foster, with the note subjoined; that it was used against all the rebels who were tried in Surrey, (except one for special reasons). We do not see what is proved by this, nor for what use ful purpose he introduced it. The statement of any one overt act is sufficient. A party prosecuted need not be indicted for every overt act of which he may be guilty or suspected to be guilty, Though not indicted for some particular overt act, yet he may be indicted for some other. For instance, we have supposed Aaron Burr guilty of an overt act at the mouth of Cumberland and at Beaver, as well as at Blannerhassett's island; suppose we prove an overt act at Blannerhassett's island, will it not suffice? If the persons really guilty at the mouth of Cumberland be not indicted for an overt act there, but at Blannerhassett's island, it will not be material; it will be sufficient, I should suppose, to indict them any where. To indict them for any one overt act is amply sufficient, as they are but different parts of the same treason. If the accused be indicted for one overt act and proved to be guilty of another overt act of the same war, is it not in the eye of reason and law sufficient? So, though the overt act be charged at Blan nerhassett's island, and though he were not there, yet if we prove

an overt act against him at the mouth of the Cumberland, willit not be sufficient? If he be indicted for one overt act of ten committed in Virginia, it will be sufficient. Though he is guilty of all the ten, there is no necessity of indicting him for all.

Mr. Wickham then read Deacon's case, for the purpose of proving that the prisoner must be actually present where the act of treason was perpetrated, or that an indictment against him as a principal in treason cannot be supported. After looking into the case, I do not think it answers any such purpose. We may refer to this case to shew, that we may be permitted to prove other overt acts, after having given evidence of one overt act laid in the indictment, for the purpose of shewing quo animo the act charged was committed.

Mr. Wickham says, that we must prove that the accused was personally present. No sir, it is necessary to prove that some act laid has been committed. We may prove acts at the mouth of Cumberland, as tending directly to prove an act done at Blannerhassett's island. It is true that we may be obliged to prove an act at Blanne hassett's island, but because we are to prove an overt act there, are we obliged also to prove that he was there in his own proper person? If the law pronounce that he is liable for the acts of his agents and if the fact be that his agents by his commands and at his request committed the act, where is the necessity of producing proof, that he was on the spot himself? The constitution having declared that "treason against the United States shall only consist in levying war against them," &c. war may be considered as being levied by any man who levies it by means of his agents; and Aaron Burr may be considered as being present on Blannerhassett's island, when his agents at his request and by his contrivance and persuasion committed the act there.

The case of Wedderbourn, Foster 22, supports the right to introduce other overt acts not laid, after proving one act laid; and though, in those two cases, the accused was present at the place where the overt act was done, it is no evidence, nor is it declared in either case, that he must be present in his own proper person or that the prosecution cannot be maintained.

Mr. Wickham has also referred to the case of lord Balmerino reported in 9th State Trials, page 587, to shew, that not having been at the city of Carlisle, when it was taken, he could not be indicted as a principal in that treason. A more minute examination of this case satisfies me that it cannot be used as an authority for this purpose. The fact is, that he was indicted for levying war in the usual way, and though not present when the city was taken, he was there in a short time afterwards, and being there and found in possession of the place, he was considered as if he had been there when the city was taken. He made an objection

at first with respect to the day; that he was not there on the 10th November, the time laid in the indictment; but this objection was abandoned, it being agreed by all parties, that the day is not material, if the fact happened and be charged before the time of preferring the indictment.

CHIEF JUSTICE.-It was also observed in that case, that his not being there at the time of taking the city was immaterial; that his entry into and detainer of the place was a sufficient overt act, and the proof of any one overt act was sufficient, without any more; and other overt acts were proved on that prisoner.

Mr. Wickham's argument was stated to be this, that the case clearly shewed, that it was necessary to prove, that lord Balmerino had been personally in the city of Carlisle; that he was present and an actor in the scene where the overt act was laid; and that if the counsel for the crown had understood the law to be otherwise, as the counsel for this prosecution do, they would have answered, “whether the prisoner had been present at Carlisle or not was of no consequence, others with whom he was connected were there and committed the act charged on him, and as all are principals in treason, their acts are his."

Mr. MAC RAE.-The materiality of the day was first contended for by lord Balmerino, but soon relinquished. He principally insisted that he was not within the indictment, as he was. not at Carlisle at the taking of it; but finding himself mistaken, he begged pardon of the court for having made the objection and given them so much trouble. There was no sort of doubt, but two or three treasonable acts laid in the indictment were sufficient, and easily proved. Nor could the court have any doubt, that a person leagued with another in a treasonable plot was equally guilty, though not actually present with that other person at the commission of an overt act. The obvious and natural construction is, that having been found in possession of the city and detaining it, he was considered as guilty of the overt act charged in the indictment, precisely as if he had been there when the city was taken. For the purpose of shewing, that if the common law be not in force here, there can be in this country no such character as an accessory before the fact, in treason, Mr. Wickham has referred the court to the case in 10th State Trials, page 436, where he says he understands this doctrine to be recognised, that where an act is made a crime by a statute, which was not so at common law, it is to be so construed, as that no person, concerned in the perpetration of that crime may be dealt with as accessories at common law, unless the accessories be expressly mentioned. I consider the truth of this position as very unimportant in the case before the court. Probably if Mr. Wickham had looked again, he would not have found it to be so correct as VOL. II.

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