who was inlisted into his service, with some prospect of benefiting himself and family? What comparison is there between the poor man who went down the river with colonel Tyler to better his situation and the intelligent but guilty man who projected this treason and furnished and pointed out the means of effecting a separation of the union? Will you take the lives of those misguided deluded men who went with Blannerhassett from his island, unconscious of guilt, with the hopes of acquiring fortunes by honourable means, and give impunity to the man who contrived and matured this vile and detestable scheme of treason and disunion? Will you sanction a construction so unjust and injurious, so oppressive and cruel to innocence, so conducive to the impunity of vice and the multiplication of crimes?

Mr. Wickham says, that by this construction men may be punished unjustly and become the victims to the caprice of the government. I hope it will be seen that there is no danger of sacrificing victims to the unjust vengeance of the government in this country. This, the nature of the government and the liberality and humanity of the citizens in general would render highly improbable, but the safeguards provided by the constitution render it absolutely impossible. The constitution has excluded the possibility of such injustice, by requiring the trial of every person accused to be speedy and by an impartial jury of the state and district in which the offence is charged to have been committed; by not subjecting him to punishment but by the evidence of two good men proving the same overt act; by forbidding his conviction except on the testimony of two good men concurring as to the same fact and thereby putting its existence beyond all doubt. The framers of the constitution never did mean to put it in the power of the public functionaries or agents of the people to commit such abuse of power as the gentleman seems to apprehend. The mode of election and the salutary checks and provisions which that instrument contains render it perfectly visionary. They never intended that the chief magistrate or any other officer should arrogate to himself powers never delegated or intrusted by the people. They never intended to put it in the power of such men to trample the constitution under foot with impunity. Consider, that in this case there is no sort of comparison between the high guilt of the chief or superior who directs every movement and principle of the conspiracy and his subordinate agents who obey his will and act under his orders; that all these agents are amenable to him, and he ought to be responsible to the government for their acts as well as his own.

Mr. Wickham argues on abstract principles and affects to disclaim individual allusions; but notwithstanding his abstract mode of reasoning, he says some very strong things which seem not to be easily distinguishable from personal applications. For the sake

of an abstract argument he supposes, that men should be in power, who would be inclined to single out an unfortunate individual as a victim for the gratification of their revenge, and that when there was an insurrection in New-Hampshire, with a view to make him a victim, they should drag from New-Hampshire to Georgia a man who never thought of treason, and manage to cause his conviction, by proving first the insurrection, and then by one witness only that he was connected with it. This is indeed an absurdity: to speak of the conviction of a man by one single witness; or of draging a man a great distance from the place or district wherein he ought to be tried to another wherein he ought not; or of many other strange things as little to the purpose. The constitution forbids this interpretation, and we ought not to suppose that any member of the government will act in express violation of the constitution. But we may presume a différent thing: that there is actually an insurrection within one of the districts of the union; that that which the constitution forbids to be done, as a conviction by the evidence of a single witness, can be proved by a great many persons. Let me suppose a case in the abstract: we will suppose, that there is a very excellent chief magistrate, who has faithfully served the people, and whom the people therefore elected to the highest office they could bestow upon him; that his views are every way correct and honourable; that he is as inimical to oppressions as friendly to the constitution and laws which he has sworn to support. We will suppose, another man whose ambitious views had led him to engage in malpractices and intrigues; whom his country had before elevated, but displaced because of those intrigues; that he had fallen very low, almost in dust and ashes; that he projected a plot of treason against his country. Can you imagine that the constitution or laws should contain any provision which would guard the rights of this fallen man against the views of this elevated character? Is it not merely sufficient to mention the case, to shew that he is perfectly safe and has nothing to apprehend? This case is infinitely stronger and goes to shew that this is merely an imaginary danger; that it cannot exist in this country. The constitution is devised for the preservation of liberty and must be so construed as to contain safeguards for itself. No innocent man who was ever accused has been convicted; for the constitution has completely excluded such evidence as would produce that effect, in every case that can come before this court or any other court in this country.

Our construction we think correct, because it is calculated to secure the rights of the citizen and to render the government permanent; whereas if the construction of the gentlemen on the other side be correct, the government cannot be permanent. Let him have the power of ubiquity, the conspirators will always

contrive to avail themselves of this plea, that they were not present. If their construction be correct, every person in this situation is to be regarded as an accessory, and because the constitution and law contain no provision concerning accessories, he is not to be punished. What is to be the consequence? That the man who is determined like him to subvert the government may contrive, plan, plot and conspire the worst schemes of treason and ruin and destroy every poor deluded man whom he can beguile and he himself will be unpunished. But surely common sense will not sanction so monstrous a proposition. According to what we believe to be common sense, the head of the party, the contriver of the whole traitorous plot is guilty of treason. I will read from Foster, page 362, a passage which will shew that if our construction be not such as common sense approves, it is at least such as superior courts have applauded. My worthy friend will not question that sentence. "If a man inciteth to the offence, he is quodam modo guilty of the offence. In foro cali this is true. In the sight of God Ahab was the actual murderer of Naboth, Hast thou, saith God to him by the prophet, killed and also taken possession? In the place where dogs licked the blood of Naboth, shall dogs lick thy blood, even thine; and in the case of Uriah, God by another prophet saith to David, thou hast killed Uriah the Hittite with the sword, with the sword of the children of Ammon hast thou killed him." David had placed Uriah in the front of the battle, in opposition to a very powerful opponent, in order that he might be slain and that David might afterwards take his wife. He was slain and David took his wife, and here David is said to have slain Uriah himself. I believe this to be of the highest authority and cannot be controverted as to the good sound sense it contains, notwithstanding the subsequent passage. It goes a great way to prove that the construction we give to the law is better than that which the gentlemen on the other side give. I believe that if the people were to be asked, who killed Uriah, David or the antagonist by whose sword he fell? the answer of all would be, that having placed him in the front of the battle, in a place of the greatest danger, in immediate opposition to a man of great strength and power, with an intention that he should be killed, David killed him; that he was more guilty of murder, than the mere agent by whose hands Uriah fell; and on the same principle he who causeth another to be killed, by a third person, is more guilty of murder than the mere agent whom he employs to deprive him of life.

But I will admit, if the admission be of any service, that it seems that this distinction hath been taken between the acts of the accessory and principal. I will admit that some of the authorities will go a great way to shew, that before you proceed against the accessory you must proceed against the principal; and in

such cases, one of the first steps to be taken must be the exhibition of the record. But I believe sir, that there is a great difference between this case and cases of common felonies, which are those generally discussed in the books. In those cases you cannot proceed against the accessory before the conviction of the principal, unless he give his consent to it. It is said in Foster, that he who is guilty of an accessorial treason cannot be tried before the principal; but before they can use this as conclusive authority, they must shew cases precisely similar to this, in which the accused was regarded not as a principal but as an accessory. This, I am confident they cannot do; but we will be able to shew some cases precisely like this in principle, wherein the persons accused were regarded not as accessories, but, though not actually present, were regarded as present and principals in the felony. In Foster's Crown Law, page 353, 354, this doctrine is fully explained. "Three soldiers went together to rob an orchard; two got upon a pear tree, and the third stood at the gate, with a drawn sword in his hand. The owner's son coming by collared the man at the gate and asked him what business he had there? and thereupon the soldier stabbed him. It was ruled by Holt to be murder in him, but that those on the tree were innocent. They came to commit a small inconsiderable trespass, and the man was killed on a sudden affray without their knowledge. It would, said he, have been otherwise, if they had all come thither, with a general resolution against all opposers.

"This circumstance I think would have shewn, that the murder was committed in prosecution of their original purpose; but that not appearing to have been the case, those on the tree were to be considered as mere trespassers. Their offence could not be connected with him who committed the murder.

"A general resolution against all opposers, whether such resolution appeareth upon evidence to have been actually and explicitly entered into by the confederates, or may be reasonably collected from their number, arms or behaviour, at or before the scene of action. Such resolutions, so proved, have been also considered as strong ingredients in cases of this kind; and in cases of homicide, committed in consequence of them, every person present, in the sense of the law, when the homicide hath been committed, hath been involved in the guilt of him who gave the mortal blow.

"The case of lord Dacres, mentioned by Hale, and of Pudsey, reported by Crompton, cited by Hale, turned upon this point. The offences they respectively stood charged with, as principals, were committed far out of their sight and hearing, and yet both were held to be present. It was sufficient, that at the instant the facts were committed, they were of the same party, and upon the same pursuit, and under the same engagement and expectation of

that

mutual defence and support with those that did the facts." Other cases may be shewn, where the prisoners were decided to be present in the sense of the law, though the offences were committed a great way out of their sight and hearing; but it was deemed sufficient that they were of the same party, having the same object in view and mutually bound to support one another. This doctrine fully applies to the case at bar, as we suppose the facts to have existed. We suppose the prisoner, by himself and agents, to have been acting at or about the same time at Beaver, Kentucky and Blannerhassett's island. We suppose that the prisoner inlisted men before he came to Beaver and at it. We suppose, afterwards his men proceeded by his orders to Blannerhassett's island and were there increasing their numbers by more inlistments and providing the means of transporting his troops down the river towards the scene of his expedition, while he was himself inlisting more men in Kentucky and making arrangements preparatory to his meeting and assuming the command of the whole at the mouth of Cumberland; and that in fact, pursuant to this plan of operations, he did meet and take the command of all the conspirators at the latter place. We believe this statement to be substantially true. Does it not come within the doctrine just explained by this respectable author? Sir, was not the prisoner of the same party and upon the same pursuit with the rest? Was he not under the same engagement and expectation of mutual defence and support with those that did the facts at Blannerhassett's island and at Cumberland? If he were legally present, he was a principal and not an accessory. These rules apply to cases of felony, and the gentlemen's doctrine is, that the same rules which apply to felony operate in treason. If the rules of felony be those of treason, I will shew you by this authority, that the presence of the prisoner was not necessary at Blannerhassett's island. 1 Hale's Pleas of the Crown, page 439. "Therefore it remains to be inquired, first, who shall be said to be present? second, Who shall be said to be abetting, aiding or assisting to the felony?

"1. As to the first, if divers persons come to make an affray, &c. and are of the same party, and come into the same house, but are in several rooms of the same house, and one to be killed in one of the rooms; those that are of that party, and that came for that purpose, though in other rooms of the same house, shall be said to be present." Dalt. cap. 93. page 241.

"The Lord Dacre and divers others came to steal deer in the park of one Pelham; Rayden, one of the company, killed the keeper in the park, the lord Dacre and the rest of the company being in other parts of the park; it was ruled that it was murder in them all, and they died for it. Cremp. 25 a. Dalt. ubi supra, 34 Hen. 8. B. coron. 172.