§  683. So  in  Authority. —  The  authorities  also  seem  to  establish,
that  the  allegation  in  the  indictment  against  one  who  has  pro-
cured a  treason  may  be  in  form  as  above  stated.*     But  —

Contrary —  (Order  of  Trial). —  Lord  Hale  has  transmitted  to  us
his  private  opinion,  not  based  on  adjudication,  that,  in  the  order
of  trial,  the  procurer  should  not  be  convicted  except  after  or  with
the  person  who  did  the  act.^  This  expression  has  been  echoed
by  later  writers :  ^  and,  on  the  trial  of  Aaron  Burr  before  Mar-
shall, C. J.,  for  the  high  treason  of  levying  war  against  the  United
States,  the  counsel  for  the  defendant  argued  that  the  English  law
is  so  ;  the  counsel  for  the  United  States,  quite  against  the  inter-
est of  the  prosecution,  conceded  the  point ;  and  the  learned  chief-
justice,  in  his  opinion,  fell  into  the  current ;  not,  however,
deciding  absolutely  the  question.^

1  Brucker  v. Fromont,  6  T. E. 659 ;  ^  United   States  v. Burr,  4  Cranch,

Heys  V. Heseltine,  2  Camp. 604 ;    CoUis  469,    604,    Burr's    Trial,    passim. Too

V. Eraett,  1  H. Bl. 313,  321 ;   Feltmakers  many    Counsel    and    too    Eminent. —

V. Davis,  1  B. &  P. 98, 102  ;  2  Chit. Plead. This  was  a  case  of  immense  public  inter-

117,  note;  Lawes  on  Assumpsit,  110,  111. est  and  notoriety;    and,  on  each  side,

^  Reg. V. Tracy,  6  Mod. 30,  32 ;  United  were    employed    several  very  eminent

States   u. Morrow,  4  Wash. C. C. 733;  lawyers. The  reader,  therefore,  need  not

and  other  cases  cited  post,  §  685,  686 ;  be  surprised  at  finding  it  within  the  com-

Crim. Proced. I. §  332. mon  fact,  that,  in  proportion  as  a  case

*  Ante,  §  673. attracts  the   public    attention,  and   the

*  1  Hale  P. C. 214,  238 ;  1  Gab. Crim. counsel  (engaged  in  it  are  multiplied,  it
Law,  895 ;  1  East  P. C. 127 ;  Keg. i;. increases  in  learned  fervor,  but  dimin-
Tracy,  6  Mod. 30,  32 ;  Rex  v. Toy,  Vern. ishes  in  true  wisdom  and  the  genuine
&  S. 540. See  United  States  v. Burr,  4  learning  of  the  law. A  principal  reason
Cranch,  469,  470,  496-498. is,  that  no  one  of  the  half-dozen  or  dozen

5  2  Hale  P. C. 223. 