How different from the situation of colonel Burr, was that of Pudsey or lord Dacre? Was colonel Burr on Blannerhassett's island? or in such a situation as to be ready to give immediate assistance to those persons who were on the spot? or within a little distance to give them assistance in making or repelling an attack or to prevent surprise? Was he in a situation to give them aid, at the very time, and on the very occasion when the overt act is alleged to have been committed? Can he be said on any rational principle to have been constructively present? Wherever several persons set out together or in small parties upon one common and unlawful design, on the principle of mutual concert, aid and protection, they are all considered one party present where the felony is committed and equally guilty.

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Cases are put by Foster himself to illustrate the general principle, in page 353: "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 upon 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; for that circumstance would have shewn that the murder was committed in the prosecution of their original purpose; but that not being the case those on the tree were considered as mere trespassers; and their offence could not be connected with that of him who committed the murder."

This is a distinct case from the others. It is true that they all went together, each to act the part assigned to him. They were all on the spot to assist one another, to give notice to prevent surprise or to favour their escape. It was certainly a common cause with them: each acted in his station at the same instant towards the same common end; and the part each took tended to encourage and protect the rest; but as the persons on the tree were not actually present but at a distance, as they only intended to commit a trivial trespass, and the act was committed without their knowledge, they were deemed innocent; but the author states that it would have been otherwise, if those two had come to a determination to kill any person who should oppose them.

Hawkins in his 2d vol. chap. 29. sect. 8. page 442. explains very clearly this principle of constructive presence: that it is sufficient to constitute this legal presence that the actor has hopes of immediate assistance; that the law considers, as ac

tually present and as actors, any persons who being of the same party, though not on the spot, are in such a situation that the real actor has hopes of immediate assistance from them. It is in consequence of this immediate assistance, that he is emboldened to commit the act of criminality. His words are, "But it seems to be sufficient for this purpose, that the person who does the fact is encouraged and emboldened in it, from the hopes of present and immediate assistance from the abettor, whether he be within view of the fact or not. And upon this ground it has been adjudged, that where persons combined together to stand by one another in the breach of the peace with a general resolution to resist all opposers, and in the execution of their design a murder is committed, all of the company are equally principals, though at the time of the fact some of them were at such a distance as to be out of view,"

On the present occasion, the counsel have endeavoured to distinguish between cases of constructive presence in treason and other crimes: They insist that to determine the degree of proximity between the immediate actor and his aiders or abettors, who are legally construed to be present, you must consider the theatre of action and extend the degree of proximity, according to the extent of that theatre; that the legal presence, which would not exist in murder or felony, may well exist in treason; that in treason all the whole United States are the theatre of action; the scale of proximity essential to legal presence should be in proportion; so that persons in Tennessee or Kentucky are to be considered as legally present on Blannerhassett's island when the acts in question were committed. It is evident that the principles of legal constructive presence cannot be extended to this case; for the actors could have no hopes of immediate assistance from the others, who were hundreds of miles distant. But they insist that treason consists in the treasonable intention. It has been echoed and reechoed that treason consists in the treasonable intention. We admit that there is in Great Britain one species of treason, which consists in the intention, without any act consummating the guilt of treason. I mean the compassing the death of the king, where the crime is merely imagined; and nothing more is necessary than to write a letter to a man advising him to kill the king; and that fact being proved, he is guilty and liable to be punished for treason, though the king was not killed, and though the party advised took no steps to pursue it. Though this be correct when confined to the death of the king, queen or eldest son of the king, and the treasonable intention constitutes the treason, yet the overt act is evidence of the intention only and not of the actual commission of the crime; because writing a letter is not treason,

but proof of the intention to commit it. But why is the intention to commit it treason in Great Britain? Because a special law is made for the safeguard of the life of the king, making it treason to conspire, compass or imagine his death, when evidenced by some overt act such as I have just stated; a conspi racy against the life of the king, whether carried into execution. or not, is made treason by a special act of parliament. But in America, we have no species of treason except two: levying war against the United States, and adhering to their enemies. giving them aid and comfort. What is the treason charged on us? Levying war. This overt act of levying war, which is said to have been committed, must be proved by two witnesses. According to the constitution, no person can be convicted unless on the testimony of two witnesses to the same overt act. If there be twenty overt acts and each of them proved by one witness, nay, if there be fifty overt acts committed at different places, and each proved only by one witness, it will not suffice; two witnesses must concur in proving the same act at some particular place, or the accused cannot be convicted. The overt act of levying war is not the crime of levying war, which consists of intention and act together. But gentlemen must admit that the intention alone is not punishable. There must be an actual levying of war; and the overt act is proof of it. On an indictment for levying war, they can give no evidence but of what is charged. They can adduce proof only of the overt act which they have laid. Proof of the intention alone would be inadmissible; just as in the case of murder, the prosecutor cannot prove the murder without proving that the party has been killed; and so in a prosecution for stealing a horse, the taking of the horse must be proved; the malicious intention to kill in the one case, and the felonious intended appropriation in the other must be established; but the intention in either case will not do without the act. Let us pursue the analogy. The treason, say they, is in the treasonable intention; well what is this treason? Levying war. This, it is contended, consists in the treasonable intention; that is, in other words, intending to levy war is levying war. But a treasonable intention merely, is not treason; nor does intention, however criminal, constitute in this country any crime whatever. It would reduce it to this: that a treasonable intention would of itself alone be a levying of war; that the treason of levying war consists in the intention of levying it, and is the same in principle as that murder consists in an intention to kill; that stealing a horse consists in the intention of appropriating the horse to his own use; and any other crime consists only in the intention to commit it. This gives us some standard to shew that the fact of levying war must be proved, and

it must be proved that those acts on the island were done to subvert the government of the United States.

Mr. WIRT disavowed the idea that a treasonable intention constituted the consummation of treason, and insisted that no such doctrine had been advanced; that treason consisted like other crimes of intention and act; that the moral turpitude of the guilt lies in the intention, which is often to be inferred from the nature of the act itself; but that it never was denied by them, that intention and action must combine to establish the guilt.

Mr. MARTIN. The gentleman cannot make the case better. The act of treason (though the whole United States be the theatre for its commission) is confined to the spot where the overt act is committed, in the manner that murder is to the spot where a man is slain. To shew that the overt act in order to constitute treason must be committed with a design to subvert the government of the United States; that war must be actually levied with that intent; and that no acts of violence, by any assemblage however numerous, can be treasonable, unless committed for the purpose of destroying the government, I will read 1 Hale 149, 150. After stating that the overt act must be specially laid in the indictment and proved upon the trial, he proceeds to state," that a levying of war, with all the circumstances imaginable to give it that denomination, as cum vexillis explicatis, cum multitudine gentium armatorum & modo guerrino arraiat' yet if it be upon a mere private quarrel between private though great persons, or to throw down the inclosures of such a manor or park where the party though without title claims a common, or upon a dispute concerning the propriety of liberties or franchises, this, though it be in the manner of it a levying of war, yet it is not a levying of war against the king, though bloodshed or burning of houses ensue in that attempt; but is a great riot for which the offenders ought to be fined and imprisoned; and if any be killed by the rioters in the riot, it may be murder in the assailant." "An actual levying of war therefore against the king, to make a treason for which the offender may be indicted upon this clause of the statute for levying war against the king, consists of two principal parts or ingredients, viz. 1. It must be a levying of war. 2. It must be a levying of war against the king." "What shall be said a levying of war is partly a question of fact; for it is not every unlawful or riotous assembly of many persons to do an unlawful act, though de facto they commit the act they intend, that makes a levying of war; (for then every riot would be treason, and all the acts against riotous and unlawful assemVOL II. 2 M

blies had been vain and needless;) but it must be such an assembly as carries with it speciem belli; as if they ride or march vexillis explicatis; or if they formed into companies or furnished with military officers; or if they are armed with military weapons, as swords, guns, balls, halberds, pikes, and are so circumstanced, that it may be reasonably concluded they are in a posture of war; which circumstances are so various that it is hard to define them all particularly." According to the authority of the English books then, a large assemblage of men committing great acts of violence do not constitute treason, unless their intention in committing them be to destroy the government. You must examine into the intention which influences the persons who do these acts, before you can determine them to be treasonable. This shews conclusively, that an assemblage of men even armed in military array are not to be considered as treasonable, unless their intention be proved to be treasonable; that is (applying the doctrine to this country unless the intention be to subvert the government of the United States.

Sir, I execrate a contrary doctrine as highly tyrannical and oppressive; and here I beg leave to enter my censure against the decisions of the court in Pennsylvania on this subject, in the cases of what were called the whisky and hot water insurrections. Some of those engaged in them were decided, in my opinion improperly, to be guilty of treason according to the constitution of the United States. I shall not fully examine this subject at present; but I think it my duty to enter my solemn protest against the decision of the court in those cases, though made by gentlemen of learning and integrity; and if ever the question should come before the supreme court, I will endeavour to shew that those decisions were illegal and improper. In these cases there was no design to subvert the government. Such a thought was not entertained. It was the expression of their disapprobation of a particular law, and an opposition to the execution of that unpopular law; and the intentions of those people went no further than to induce its repeal. But according to the authority already referred to, though war was levied with all the usual solemnities of actual war, though violent acts were committed and a number of people killed, yet the parties engaged in it would be only guilty of a great riot or at most of murder, but not of treason, on this principle that their intention was not treasonable: that the subversion of the government never was in their contemplation.

The present indictment fixes the locality on Blannerhassett's island; and let it be remembered that treason consists in the act of levying war, done with a treasonable intention; and the