The principles of law and of convenience, and die natural reason of everv man, all concur in requiring, that the first part of the evidence to be proved, should be the act. If it be first proved, no inconvenience will result from it. The rules of law should be general. If this principle of reason and convenience be departed from in this instance, it may in every other; and the most manifest and dangerous inconveniences in other cases (if not in this) must result, if the court will permit gentlemen to indulge, what judge Patterson calls " self-love, prejudice or whim, or the suggestions of a wild imagination."
I will not omit another authority, which may not be directlv applicable to the distinction now before the court; but if applicable, it maintains the same principle, in directing the order of the evidence. 1st East's Crown Law, p. 96, 97. " In this, as in other 'cases, founded on conspiracy, the conspiracy or agreement among several, to act in concert together, for a particular end, must be established by proof, before any evidence can be given of the acts of any person, not in the presence of the prisoner, and this must be generally done by evidence of the party's own acts, and cannot be collected from the acts of others, independent of his own." " When the connexion between the parties is once established, of which the court must in the first instance judge, previous to the admission of anv consequential evidence to affect the prisoner by the acts of others, to which he was not a party or privy, then whatever is done in pursuance of that conspiracy, by one of the conspirators, though unknown perhaps to the rest, at the time, is to be considered as the act of all." This, at least, ascertains that the order of evidence is part of the law of evidence; and that facts may be important and material in one part of a prosecution, which, in another may be entirely inadmissible. As in the case of a conspiracy, before you can introduce any testimony against a prisoner, of the acts of any other of the conspirators, you must prove an association between them: so in this case, before you are permitted to introduce evidence of the intention being treasonable, you must prove an act of war. Before you speak of a treasonable intention, you must go on to prove the act which makes it so. The overt act must be proved by direct evidence, and confirmed by confirmatory evidence.
Mr. Martin referred to 3 Gilbert, 816, and to several other authorities, to shew that " when levying war" is the charge laid in an indictment for treason, the rule of proceeding is the same as in murder, larceny and burglary, where the evidence must rise out of the facts first proved, if not admitted. He again referred to the case of the King w. Vaughan, who was indicted for treason in adhering to the king's enemies, by cruising