Aaron Burr.

Trial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) online

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both of which may be deemed by the counsel for the
prisoner to form essential parts in the definition of trea-
son. In the definition which I gave just examined, no
notice is taken of arms or military weapons ; nor have I
stated that any actual force or hostility has been em-
ployed for the purpose of effecting the treasonable de-
signs ; because I think neither of them essential, accord-
ing to the constitution and laws of this country.

On the first point I shall offer but a few remarks. But
before satisfying you of the legal propriety of the omis-
sion, permit me to examine the question on principles of
common sense ; for it must be admitted that in legal dis-
cussions we do not always carry common sense along
with us from beginning to end. Let us, then, consider
this case, not a,s it would be presented to us by lawyers
and judges, but by the sound principles of common
sense and national policy. I say that it is not necessary
that the conspirators thus assembled should be armed,
to make them traitors : but that their treason may be
complete, though they have not a single gun, nor even a
sword, in the whole transaction. Let us suppose a case:
There has been a time when ten or fifteen thousand stand
of*arms were deposited under the roof of this capitol ;
suppose that four or five thousand unarmed men should
meet together, within a few miles of this city, with a de-
liberate, preconcerted design to march to the capitol,
take possession of the public arms, disperse the legisla-
ture, and usurp all the powers of the government; sup-
pose ten thousand men unarmed should come within a
few miles of this city, where they knew they could get
arms, for the purpose of carrying into effect their treason-
able designs : let us suppose, what is not unreasonable to
suppose, that the infantry and cavalry of this city, should
gird on their armor, and resolve, as good honest citizens
and brave soldiers, to disperse these conspirators, before
they carried their treasonable purposes into effect ; they
arm, they march, and these conspirators, apprised of their
approach, and conscious of their own guilt, disperse and



OPENING ARGUMENT OF MR. HAY. 491

fly in every direction. I ask whether they would not be
traitors ? They had assembled and marched for the pur-
pose of subverting the government of their country, but
before they got possession of the arms which it was their
intention to seize and turn against their country, they
were dispersed, and effected their escape. Could any
man say that these men, thus assembled, were not, to all
intents and purposes, traitors to their country ? Or, gen-
tlemen, suppose that a number of men should assemble
on Blannerhassett's island, in the county of Wood ; sup-
pose, what I do not believe was the fact, that they have
no arms; they descend the Ohio and Mississippi, with
an intention to take New Orleans and plunder it, and
divide the union. They calculate on meeting their leader
at the mouth of Cumberland river, and when at Baton
Rouge, to obtain arms on the river. Their numbers in-
crease as they go on, and we are told that when they ar-
rive there, they will get arms by the aid of the Spanish
minister. Would the simple circumstance of their being
unarmed, lessen their guilt ? Would it not be an absurdity
and a violation of common sense, to say, that the mo-
ment before they got possession of arms, they were not
traitors ; but that the instant they put their hands on
the muskets they became traitors ? It appears to my
mind that the description of treason given by the supreme
court was correct, when in one passage it is silent as to
the necessity of possessing arms to constitute treason ;
and in another part, if I am not greatly mistaken, it has
expressly disclaimed it. If, gentlemen, this point were
not to be so determined, what would be the result?
Why, this, that the conspirators would take care never to
touch arms, till they were ready to strike a blow. Their
arrangements would be made in such a manner, that they
would have military weapons placed within their reach,
but they would not lay their hands on them till their or-
ganization were complete.

It is not essential, therefore, on principles of common
sense or national policy, that they should have arms be-
fore they could be said to have committed an overt act
of treason. And what says the law? In the case, gen-
tlemen of the jury, decided by the supreme court, you
find that there is not a single syllable said, from begin-



492 TRIAL OF AARON BURR.

ning to end, with respect to the necessity of arms being
in the hands of the persons assembled in order to perpe-
trate the crime of treason ; and in the trial of Fries, p.
197, one of the judges of the supreme court (Judge Chase)
embraces this opinion ; he says, " That the court are of
opinion, that military weapons (as guns and swords men-
tioned in the indictment) are not necessary to make such
insurrection, or rising, amount to levying war ; because
numbers may supply the want of military weapons, and
other instruments may effect the intended mischief. The
legal guilt of levying war may be incurred without the
use of military weapons, or military array." It is re-
markable, too, that this very doctrine is admitted by the
counsel of the accused (Mr. Dallas, p. 108). I do not
state it as authority, but it affords a strong presumptive
argument that the law was against him ; for the counsel
of a prisoner never makes a concession, unless the law be
extremely clear against him.

In Great Britain there is a statute which passed many
years ago, in the 25th year of the reign of Edward
III., in which treason is described in the very identical
words of our constitution, in the 3d section of the 3d
article. This statute makes " levying war " against the
king to be treason. When, therefore, the framers of
our constitution, many of whom were lawyers of distin-
guished talents, defined " treason " in the very words by
which it had been defined many years ago in that coun-
try, and which had been so often the subject of discus-
sion and adjudication, it is to be fairly presumed, that
they used those words in the same sense which has been
annexed to them by the judges in Great Britain. An
observation of a judge of the court of the United States
on this subject, who is now no more, but was very re-
spectable (Judge Iredell), amply confirms this remark.
In Fries' Trial, p. 167, that able judge says, " Now, I
must confess, as these able and learned framers of our
constitution borrowed the act, in terms, from the British
statute alone, an authority with which they were familiar,
that they certainly at least meant that the English
authorities and definition of those terms should be much
respected." The only purpose for which I have made
the reference to the British laws, is to show that the



OPENING ARGUMENT OF MR. HAY. 493

decision of the supreme court on this subject, in the
case of Bollman and Swartwout, is not an innovation,
not a new doctrine, but is an exact counterpart of, and
taken from, the decisions of the English Judges. To
prove this. I refer to Foster's Crown Law, p. 208, where,
speaking of being armed and arrayed in a warlike man-
ner, he says that " the merits of the case have never
turned singly on any of those circumstances." " In the
cases of Demaree and Purchase, which are the last
printed cases that have come in judgment, on the point
of constructive levying war, there was nothing given in
evidence of the usual pageantry of war ; no military
weapons, no banners or drums, nor any regular consul-
tation, previous to the rising: and yet the want of those
circumstances weighed nothing with the court ; though
the prisoner's counsel insisted much on that matter.
The number of the insurgents supplied the want of
military weapons, &c. The true criterion, therefore, in
all these cases is, quo animo, did the parties assemble?
For if the assembly be on some private quarrel, or to
take revenge of particular persons," then it is not trea-
son. But if the cause of the assembly be an object in
which the nation itself is concerned, as taking possession
of New Orleans, the key of the western world, then,
according to common sense, the opinion of the English
judges, or of the supreme court, it is treason. The
opinion of Judge Foster, is quoted in East's Crown Law,
vol. i, p. 67. He concurs in the opinion of Judge
Foster, and thinks that arms and military array are not
essential to constitute treason.

I have thought it my duty to enter into this tedious
exposition of the law on this point, though it did not
appear to me to be absolutely necessary, because our
own courts have decided this question, in language too
plain to be misunderstood by mortal man. Another
circumstance which perhaps rendered this discussion un-
necessary, is this: that the persons assembled on Blan-
nerhassett's island were actually armed for offensive, as
well as defensive, purposes.

I have thus endeavored to satisfy you, gentlemen, that
1 was correct in omitting, in the definition of treason,
that they were armed or in military array. I submit to



494 TRIAL OF AARON BURR.

you, gentlemen, how far I have succeeded in justifying
the propriety of this omission.

I stated to you a second omission, that the persons
assembled are not stated to have employed any actual
force, or committed any hostilities. I contend that
treason may be committed, though no battle be fought,
and though no act of violence or force whatsoever be
done.

I trust that I have shown that the treason is com-
pleted the very instant that they assemble together with
a treasonable design. It will, perhaps, be said on the
other side (though I can hardly persuade myself that it
will), that arms must be used, that force must 1 be em-
ployed, before war shall be saiti to be levied. If they
should contend that the conspirators must have arms,
and must employ force, before they can incur the guilt
of treason, observe the embarrassment in which their
doctrine will involve them. If ten thousand men were
to assemble together and march to the city of Washing-
ton, for the express purpose of sending the president to
Monticello, turning congress out of doors, taking pos-
session of the capital, and usurping the powers of the
government, they would not be guilty of treason ; because
they had not yet struck a blow. They* advance and
proceed ; they meet no opposition ; the nembers of the
government disperse through fear ; and yet this is not
treason ! I should suppose that it would be acknowl-
edged to be usurpation, and that the persons who had
thus assembled and proceeded to the capital of the
union, with a determined intention of subverting the
government, were traitors. No violence has been used,
no opposition has been encountered, and they effected
their object, because the terror and dismay inspired by
their numbers, rendered resistance impossible ; yet they
are not traitors ! The doctrine that makes force, or the
actual exertion of arms, an essential ingredient in the
composition of treason, is, in my estimation, the most
dangerous and most fatal that can be conceived. It is the
very doctrine which traitors themselves, assembled to-
gether for the purpose of devising taws for their own
security, would be most disposed to recognize. For if
they were not traitors till they struck a blow, they would



OPENING ARGUMENT OF MR. HA Y 4 <, 5

have nothing else to do but to be on their guaro and
never to lift their arm till the blow should take full
effect. The doctrine for which I contend, is completely
and unequivocally confirmed by the decision of the
supreme court of the United Sates. There is not a
single word in it from which it can be reasonably
inferred, that, in order to commit treason, actual hostil-
ity or force must be employed.

I do not know whether the counsel for the accused
will take shelter under some expressions used by the
judges in the case of Fries, p. 197 ; and I candidly admit
that there are some expressions used by Judge Chase,
from which it may be inferred that force must be used,
to complete the crime of treason. If they should think
proper to rely on those expressions, to prove that force
is necessary, I have only to remark, that it is but the
opinion of a single judge, or of the judges of a subordin-
ate court, and can not be opposed to the decision of the
supreme court. But this opinion can not be considered
as authority, for two reasons. First, it will be recol-
lected that the opinion on that point is extrajudicial ;
by which I mean to say, that it was not such a point as
was necessary to be settled in the case then before the
court. He was speaking on a subject not immediately
before him, and which he decided only incidentally. The
question before him, was not whether force did enter
into the composition of treason ; for in the case of Fries
there was no sort of doubt that every kind of force was
used. It was a case of an actual opposition to the laws
of the United States : and nothing is considered as an
authority, but a decision of the court on the very point
which brings the question before it ; the opinion was
therefore extrajudicial.

But, secondly, the opinion delivered by Judge Chase will
be found, on an accurate inspection, not to be consistent
with itself; for, in some parts of it, he contends for the
doctrine which I now maintain, and expresses himself in
very different language from those relied on. I do not
say this by way of detracting from the intellectual powers
of the judge ; but such is the infirmity of human nature,
that it is difficult for the ablest man to be always con-
sistent in argument. In his definition of treason, in the



\
496 TRIAL OF AARON BURR.

same case, p. 196, he says, that " any insurrection or ris-
ing of any body of people, within the United States, to
attain or effect, by force or violence, any object of a great
public nature, or of public and general (or national) con-
cern, is a levying of war against the United States, with-
in the contemplation and construction of the constitu-
tion." Thus excluding from his definition the two cir-
cumstances which I have omitted in mine : military-
weapons, and the actual employment of force. In the
next page, he expressly states, that military weapons, &c.
are not essential in the consummation of treason ; and
yet in the course of the same charge,, and in the same
page, he seems to think that some force must be em-
ployed, before the crime can be legally complete. In
the former page, he lays down the doctrine for which I
contend ; which is the very same that was delivered in
the case of Bollman and Swartwout ; that is, that an as-
semblage of men for the purpose before described, is a
"levying of war." After stating this in terms as precise
as any in the English language, he says in the next page
(197), that "some actual force or violence must be used,
in pursuance of such design to levy war ; but that it is
altogether immaterial whether the force used be sufficient
to effectuate the object ; any force connected with the
intention, will constitute the crime of levying war ;" and
however other parts of this opinion may be reconciled to
each other, that part where he says, that the persons as-
sembled must use some force, is incompatible with an-
other part, where he declares that any insurrection or
rising of any body of people, to attain or effect by force,
any object of a great " public nature, &c. is a levying of
war," &c. In the one, some actual force is requisite ; in
the other, only an insurrection or rising of a body of the
people, for the purpose of effecting their object by force,
is deemed sufficient. I stated to you before, gentlemen,
that the opinion, that they must have arms, is inconsist-
ent with the principles of national policy, and opposed
to the opinion of the supreme court.

It is only a mere dictum of Judge Chase, in a case not
necessary to be decided. The truth is, that he did not
express himself on this subject with the precis-ion which
he would have displayed had the question before h : m



OPENING ARGUMENT OF MR. HAY. 497

been what it was before the supreme court, and v/hat it
is here. In 2nd Dallas's Reports, p. 335, Judge Patter-
son lays down the law on this subject, in exact conform-
ity to the opinion of the supreme court; and d'oes not
think war-like weapons necessary to constitute an act of
treason. Let me also refer to the argument of Mr. Lewis,
who appeared as counsel in the defense of Fries, with as
much zeal and professional ability as any man could
have done. I do not know him, but he is said to be a
man of great ability and legal erudition. He would
make no concession injurious to his client ; and yet, in
his elaborate argument, he says not one word about the
employment of force, or the actual commission of hostili-
ties. If they assemble without the employment of force,
but for the purpose of effecting a treasonable design be-
fore their separation, they are traitors. Such is the law
as defined by the supreme court, and admitted by a most
able and zealous defender of a person prosecuted for
treason.

These opinions and decisions are in conformity to the
most respectable authorities and adjudications on criminal
law in England. Treasons in that populous country are
generally accompanied by force ; but that the actual use
of force, where the traitorous design of an assemblage of
men is clearly proved, is not necessary, is, in my judg-
ment, indisputably certain. Foster, in p. 211, says, that
" all insurrections of a public and general concern, which
in judgment of law are intended against the king, to de-
throne or imprison him, to oblige him to alter his mea-
sures of government, or to remove evil counselors, &c.
amount to levying war within the statute, whether with
the pomp and open circumstances of war or no." The
words here used, "levying war," are the very words
adopted in the constitution of the United States. In
page 218, he is still more explicit: "An assembly armed
and arrayed in a warlike manner, for any treasonable pur-
pose, is ' bellum levatum,' though not ' bellum percus-
sum ' was levied, though not struck." See, also, East's
Crown Law, p. 67, before referred to. After stating the
same words, he adds, " enlisting and marching are suffi-
cient overt acts, without coming to an actual engage-
ment ; in the same manner as cruising under an enemy's

S3



498 TRIAL OF AARON BURR.

commission, though no act of express hostility be
proved, is an adherence to the king's enemies." It shows
that according to the exposition of the law in England,
it is not necessary that force should be employed before
the act of treason shall be said to be completed. But
whether I be correct in my exposition of the English law
or not, is perfectly immaterial; because in our own coun-
try the judges of the supreme court have placed this
point beyond the reach of controversy ; and I hope you
are perfectly disposed to respect that opinion which was
in fact pronounced by yourself.

If, according to the decision of the supreme court,
neither arms nor force be essential to constitute treason,
I will ask whether an assemblage of men on Blannerhas-
sett's island, convened with a traitorous design, to be
executed before their separation, were not treason against
the United States?

You will be told, gentlemen, that certainty in criminal
law is important) and, in that part which relates to trea-
son, essential to public liberty. Perhaps you will be re-
minded of an obversation of a celebrated writer, that
uncertainty on this single point is sufficient to convert
a republican into a despotic government. This observa-
tion, though made by Montesquieu, is not admitted to
be applicable to the government of this country, de-
pendent as it is on the people ; nor to our people, in-
formed as they are of their, rights. But suppose it to be
so, it does not apply to the subject now under your con-
sideration. The answer is as conclusive as it is obvious,
that by the decision of the supreme court, the la\v is
rendered certain. The decision of that court has pointed
out to the people of the United States the line beyond
which they can not go without subjecting themselves to
the consequences of the commission of treason. The
court has said that conspiracy to levy war is not treason ;
that enlisting of men is not treason ; that marching from
a place of partial, to a place of general rendezvous is not
treason ; but than an assemblage of men convened to
effectuate forcibly a traitorous intent, is traitorous ; and
all concerned in it are traitors. Every man may know
the situation in which he stands, and at what point to
stop, if he wish to avoid the imputation and the guilt of



OPENING ARGUMENT OF MR. HAY. 499

treason. You will probably be told, also, of the danger
of constructive treasons. It may be observed, that, in
Great Britain, this doctrine has produced much oppres-
sion ; and you may be asked, why we should be ex-
empted from the same evils in this country ? Black-
stone, in vol. 4 of his Commentaries, p. 75, describes
constructive treason thus : " to raise by force and arbi-
tary constructions, offenses, into the crime and punish-
ment of treason, which never were suspected to be such ; "
of this, some terrible examples exist in the earlier peri-
ods of English history, when the people were ignorant,
and the judges entirely dependent on the king.

It is admitted that the doctrine which shall let in
treasons, not defined by the constitution by mere arbi-
tary constructions, influence, or analogy, as in England
formerly, ought not to be countenanced. But it will not
be said that there is, in this country, any danger to be
apprehended on this subject ; where the government de-
pends so much on the will of the people, and the people
know so well their rights, and how to support them. I
believe no danger from this consideration is ever to be
experienced here. It may serve as a topic of declama-
tion, but the apprehension of real mischief from this
source is absolutely visionary.

But this is not a question arising on constructive trea-
son, but on the constitution. The inquiry is, What is
the meaning of the words used in the constitution ? It is
the business, no doubt, of the court to construe what is
meant by the words " levying war." These words do not
present to the mind a precise and distinct idea, like the
words " murdering a man," or " stealing a horse." If
the question, What is " levying war?" were propounded
distinctly and separately to every individual composing
this assemblage, very few, even of the most intelligent
among them, would have the temerity to answer without
great hesitation and doubt. The answer would be va-
riant ; perhaps as many opinions as men. Necessity,
therefore, requires that the courts should ascertain the
constructions of these words. It is their duty to do so.
It is a task they have undertaken when they became
judges, and they have performed that task, by giving
a reasonable construction of the meaning of the words



500 TRIAL OF AARON BURR.

used in the constitution, as descriptive of treason.
This will not be called a constructive treason. It
would be absurd to apply that term to it ; because
it is absolutely necessary to define the offense. On
this point permit me to refer to the opinion of Judge
Peters, on- Fries' Trial; p. 206-7: ''The doctrine of
constructive treason has produced much real mischief in
another country ; and it has been for an age the subject
of discussion among lawyers, other public speakers, and
political writers. The greater part of the objections to
it are totally irrelevant here. The subject of them is
unknown, and may it ever remain so in this country. I
mean the compassing the death of the king. It will be
found that the British judges, since the days of political
darkness and bigotry have passed away, are to be found
among the most able and decided opposers of the abuses
of this doctrine. They do not follow decisions and doc-
trines rooted in bad times, because they find them in their
law books. On the contrary, on a fair investigation, it will
be proved that those contrary to justice, reason, and
law, are rejected. It is not fair and sound reasoning to
argue against the necessity and indispensable use of -con-
struction from the abuses it has produced. What is
there among the best of human (and I wish I could not
add divine) systems, which has not been perverted and
abused ? That there must be some defined sense and
interpretative exposition, made of the terms " levying



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 47 of 64)