is distinct from an overt act on Blannerhassett's island; and no act done in Cumberland can be given in evidence to prove an act on Blannerhassett's island, any more than an act done in the boat could be given in evidence to shew quo animo the act in the Loyal Clencartie was committed. It is not consistent with reason, that one should be direct evidence of the other; that an act committed ten months before should be evidence of what was done then.

Here we are only called upon to answer for what happened at Blannerhassett's island. For that only we are now accountable; but according to gentlemen's doctrine, fifty acts committed at other places could be received as evidence in support of it. This would be a convenient mean for men who wish to destroy their enemies. Would this be correct or just? Foster construes the law on this point very differently from the gentleman on the other side; who has repeatedly expressed so much abhorrence of the common law, that he wishes the whole rubbish of it to be thrown away; and declared that common sense would be an infinitely safer rule to decide this case; as he says it is in determining controversies between man and man. This guide to which he has so often referred us, I believe, would not conduct us to the same point. For I am sure that his common sense, from the specimen we have had of it, would be as unintelligible to me, as the common law would be to that gentle

man.

The law is clearly settled as I have stated it. It has been so decided not only in Vaughan's case, but many others. There is no decision to the contrary. The cases of the queen against Damaree and Purchase cannot be considered as forming an exception to the general rule; and if the doctrine contended for by the prosecution were to prevail, the insertion of an overt act would answer no purpose whatever.

CHIEF JUSTICE.-The argument there was, that an overt act was not necessary to be particularly stated; and that the charge might be laid in general terms: that is, as I recollect it, that it was sufficient to state that the accused with a multitude of armed men assembled in warlike array to effect their purpose.

Mr. WIRT. In the case of lord Balmerino, the first charge in the indictment was general-it was for leveying war against the king; that he, on the 10th day of November in the 19th year of the king's reign, assembled and joined with a great multitude of traitors armed and arrayed in a warlike and hostile manner, and prepared waged and levied a public and cruel war; and then a special charge was added: that he entered in

to and took and held the city of Carlisle. He objected 1st, that he was not there on the 10th of November; and 2dly, that he was not there when it was taken. His objections were overruled: the first because, the day is not material; and the second because he marched into the city after it was taken and held it for the pretender. But it was certainly considered that the first general charge, proved by his marching with the rebel army, would have been sufficient, even if it had not been proved that he entered into Carlisle, and held it for the pretender.

Mr. MARTIN.-Lord Balmerino's was a clear case; but he did not understand the inutility of those objections, or he would not have urged them; as he afterwards declared himself. The indictment charged that he entered and took possession of Carlisle on the 10th of November; and the fact was, that he did not enter it until the next day after it was taken. His objection was, that the indictment did not state the facts properly. He thought that all the indictment must fall, if any article or part of it were not proved as charged; and that, the day was material. It appeared that he came into the city on a different day from that charged in the indictment; but it did not expressly charge him with being there when the city was taken, though it might be inferred from the terms of the accusation. But it was proved against him that he entered the city at the head of his troop, and then held possession of it for the pretender. The indictment charged that he with a great multitude of traitors and rebels to the number of 3000 in warlike and hostile array, with offensive and defensive arms, &c. did assemble and join himself, and traitorously did prepare, order, wage and levy war. It is not stated that they levied war, but that he levied and waged the war together with them. The overt acts charged are, that he levied the war with those traitors and rebels armed and arrayed in a warlike and hostile manner, with offensive and defensive arms, &c. and that he entered and took possession of Carlisle. The charge of an overt act is always indispensable; but it must be proved as laid. And overt acts neither charged nor being evidence, in themselves, of those charged, are never admitted in proof. In Vaughan's case the indictment stated that he levied war; but it stated also that he adhered to the king's enemies; and it went on and charged what was done in the Loyal Clencartie.-The indictment against lord Cromartie is like that against lord Balmerino. It first charges that he levied war; that he, with a number of persons armed in military array, did levy war; and then it goes on and states the overt act of his going into and holding the city of Perth-and it was proved that he went into Perth and held it against the king's forces. VOL. II. 20.

The cases are similar: in each the overt act was distinctly proved.

It is admitted that some overt act of war must be proved. But I do not know that I shall enter into a contest to shew that a mere assemblage would be insufficient to constitute such an act. But there is an overt act laid in the indictment: that there was an assemblage armed and arrayed, and that they took boats or canoes and proceeded in them down the river to seize and take New Orleans; which is something more than a mere assemblage; and this must be proved as laid. In the cases of Damaree and Purchase, 8 St. Trials, 218. 268. there was an overt act of war laid, or they were charged with compassing the queen's death.

CHIEF JUSTICE.-The indictments in those cases charge levying war.

Mr. MARTIN.-I shall for the present leave part of my argument unfinished. I shall only make this observation: Our constitution has made it absolutely necessary, that an overt act of levying war should be laid in the indictment. It must be laid in the district and state wherein it was committed, and proved in the county wherein it is laid. It is therefore not material what the precedents in Great Britain may state. What the constitution prescribes must be obeyed. We must therefore refer to the indictment.

I ask what is the overt act laid in this indictment? And I shall endeavour to shew that there cannot be such a constructive presence as the counsel for the prosecution contend for. In the first count, it is alleged that the accused levied war. Gentlemen have given no evidence in support of this count for levying war but an assemblage of men. But they must prove the overt act which they have alleged: an assemblage of men armed in a warlike and hostile array on the island for a treasonable purpose, at the time and place charged. Instead of proving any war, or any act of levying such war, they have only shewn a mere unarmed assemblage of a few men. There is therefore a total failure of proving this count. There is no proof of any thing like a war. There is no evidence to shew that there was even an armed assemblage on the island.

As to the second count: it states that there was an assemblage of armed men to subvert the government of the United States; and that in order to carry their traitorous intentions into effect and carry on the war against their country, they arrayed themselves in a warlike manner, with arms, &c. and proceeded from the island down the Ohio, with the intention to take possession of New Orleans. This count is equally unsupported.

They have admitted, and we have proved without their admission, that colonel Burr was more than two hundred miles from the island. I ask therefore, how could he be considered as constructively present on the island? The men assembled themselves there in his absence. As he was in fact in Kentucky at such a distance, by what construction could he have been on the island? Could he reappear in an instant on the island? Did they set off together to the island? Was he so near it as to be able to give them immediate or speedy assistance? When the militia of Wood county were marching against them, was he near enough to give them any aid or assistance? Could he by the attribute of ubiquity be on Blannerhassett's island and in Kentucky at the same time? There is no evidence of any war or violence, or any thing being done any where. Is this specific charge, that he levied war on Blannerhassett's island, made in consequence of his being able to give them aid or assistance, or notice to run for it? If the persons assembled at the island were informed by a communication from him at the distance of two hundred miles that they ought to make their escape, if at such a distance he gave them notice that they were in danger and ought to run for it in order to avoid it, he was far from being accessory to treason or any other crime. Instead of advising or abetting a crime, if any were meditated, he prevented it. I am sure, it is beyond my conception how he could on any correct principle be legally present or constructively guilty either as principal or accessory. If the gentleman's position be correct, I must repeat the argument used by the gen tleman who began the motion, and which they only attempted to answer by endeavouring to throw ridicule and contempt on it; as they could not oppose it by fair reasoning. Their construction is as variant from universal usage, as it is repugnant to correct principles. No instance can be adduced of such a construction having ever been sanctioned in practice. Crimes have been heretofore prosecuted according to the truth of each case; and the accused have been only charged with having been guilty where they were really committed. Those who had committed treason, who had levied war in Carlisle, were charged as having levied the war in Carlisle. Those, who were accused of having levied war in Perth, were charged as having done so; and those, who levied war in Aberdeen, were indicted as having levied war there only. But if the counsel for the crown in Great Britain had found out this new doctrine discovered by the ingenuity of the counsel for this prosecution, (that individuals who engaged in the same war carried the war through those two kingdoms; that those, who were absent when Carfisle, Aberdeen and Perth were taken, were constructively pre

sent and equally guilty with those who were actually present;) prosecutions would have been easily conducted and much trouble saved. If gentlemen's new doctrine be correct, all persons engaged in the rebellion of the year forty-five (or any other) belonged to the same army. It would only have been necessary to state and insist that by constructive presence a person who levied war at Perth might be charged as having levied it at Carlisle, because he was connected with the army. Proving presence in any one place, would be proof of presence in all places. This is the inevitable result of this new doctrine.

If this new doctrine be, as gentlemen affect to believe, unanswerably correct, then it shews incontrovertibly great ignorance on the part of the lawyers who prosecuted in Great Britain in encountering so much unnecessary trouble and adopting a mode of prosecution so difficult as they did, and the superior ingenuity of the gentlemen in discovering this very easy and plain mode.

If gentlemen, by giving him this constructive presence, can charge colonel Burr as present on the island when he was at the distance of two hundred or two hundred and fifty miles, surely the lawyers who prosecuted in that country might have indicted and prosecuted the accused where most convenient to themselves, without any regard to the places where the crimes imputed were really committed. They might have charged a person who committed an act of levying war at Perth, as "having been guilty of it at Carlisle or Aberdeen," which is only thirty or forty miles distant. If this constructive presence can by legal fiction be extended from that proximity, whence immediate aid can be afforded, to the distance of more than two hundred miles, certainly it might have been carried thirty or forty miles; and if the law had authorized it, that very easy and convenient mode of prosecution would have been pursued; but such an idea, so oppressive a construction to the accused, never was entertained in that country; and I am confident never will be tolerated in this.

Having then, I flatter myself, said enough to put an end to the argument of gentlemen, and shewn that there can be no such constructive presence as they advocate, I shall now proceed to examine what was the situation of the accused, supposing there was no such thing as constructive presence; because when persons are constructively present, they are never called accessories before, but principals. If a person be at all guilty, but neither actively nor constructively present, he must be an accessorial agent. I shall endeavour to shew that there is no difference ir law, between those whose accessorial agency is before the com