Aaron Burr.

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

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traitors within the statute. And lastly, when the jiyy
brought in a verdict of acquittal (for there was no evi-
dence against the prisoner on either point), the court im-
mediately committed them all to prison, and some of
them were fined two thousand pounds, some one thou-
sand pounds, and the lowest paid threescore pounds
apiece, before they were discharged from their imprison-
ment. Stamford, who was active in the prosecution,
was afterwards promoted to the bench, and published
his pleas of the Crown, in 1560, six years after, in which
he has laid down the doctrine at large, as it is received
at this day, but cites the case 3 Hen. 7, 10, before men-
tioned in support of it. Abington's case was resolved,
when Sir Edward Coke was attorney-general, in the
fourth year of James the first, when the spirit of perse-
cution was at its height, from the terrors of the powder-
plot, in the guilt of which the prisoner was involved, by
receiving one Garnett, a Jesuit, knowing him to be guilty
of the powder treason. It is not improbable, however,
that this doctrine was aided in its. progress, by the sta-
tutes which passed in the reign of Hen. 5, and Hen. 6,
and the numerous acts of attainder, passed in those v of
Edw. 4, and Rich. 3, arid the multiplied treasons created


in the reign of Hen. 8, and his successors, whereby the
aiders, counsellors, consentors, abettors, maintainers, pro-
curers, comforters, receivers, relievers, and so forth, of
persons guilty of any such treasons, are repeatedly de-
clared to be principal traitors also. These parliamentary
declarations and statutes must, I conceive, have had a
strong influence over the judges, in those days, when
parliaments and courts were equally devoted to the will
of the ruling monarch.

" I should not have taken the trouble of this scrutiny,
had not the same judge [Judge Chase], who declared
that the English authorities were not to be regarded as
precedents in our courts on the same occasion, declared
the law to be, ' that in treason all the participes criminis
are principals ; that there are to be no accessories in
that crime, and that every act which, in case of felony,
would render a man an accessory, will in the case of
treason make him a principal.' If the learned judge
rejects the authority of the English precedents, where
can the law be found? And if he relies upon those pre-
cedents, where can the reason of the law be found ? "

In that case it was perfectly clear, that the prisoner
was not present at the only scene of action. I can find
no case, where a person who was not present at the
scene of action, or where a procurer or aider of treason
before the fact was convicted or even brought to trial,
except the case of Mary Speke. In Tremaine's Pleas of
the Crown, p. 3, I find an indictment against her for
treason, in aiding the Duke of Monmouth and others in
levying war, with provisions ; neither before nor after, but
at the time when the treason was committed by the prin-
cipals. She was not an accessory in fact, but an " aider "
in the commission of the treason; it comes within the defi-
nition of an " aider or procurer, " and belongs to the class
of accessories before the fact. But I can not learn how
the case was decided ; whether according to common
sense or justice, or in what manner determined, neither
history, nor any report of the decision of the court (as
far as I have been able to discover) informs us. It was
in the fourth year of the reign of James 2d, when the
spirit of persecution was very high, and was probably
one of the cases decided by the' execrable Jerteries, on


the occasion of Monmouth's rebellion. Whether he car-
ried this doctrine to the utmost length or not, I can not
say; but I presume the counsel for the United States
would not rely on it as a precedent even if it applied.

After a diligent and painful research, I have been un-
able to find any other decisions that go to this point,
with respect to accomplices in the nature of accessories
before the fact, to treason in " levying war." I can not
find, and I am confident the gentlemen can not show any
solemn decision subjecting the procurer, before the fact,
to the pains and penalties of treason. The other great
branch of treasons, that strikes directly at the existencp
of the government, that of compassing the death of the
king, does not admit of an accessory before the fact, as dis-
tinguished from a principal. We all know that that crime
consists in the intention. The agreement to do the act
constitutes the crime itself. It is impossible that there
can be an aider or procurer* in this case, because every
person concerned is party to the agreement, and there-
fore, from the nature of things, is a principal. It will
not be contended by the counsel on the other side, that
an agreement to levy war amounts to levying war. They
themselves admit that they who conspire to levy war only
become traitors by relation when the war is actually le-
vied. With respect to treason for compassing the death
of the king, where the mere agreement to do the act
does itself constitute the crime,! thank God that in this
country we have no subject to which it applies; and our
constitution forbids that the intention alone, which is so
liable to be misunderstood and misrepresented, should
in any case be construed into treason.

In the lesser treasons, such as conterfeiting the coin, I
have not met with any instance of as conviction of an ac-
complice before the fact.

It is admitted that there are to be found in Eng-
land a number of convictions of receivers of traitors and
other aiders in the nature of accessories after the fact ;
and I admit the correctness of the inference, that if these
decisions \fere proper to be considered as precedents, the
principle would apply to aiders and abettors before the
fact. But it becomes proper before they ought to be
regarded as precedents worthy of imitation, to inquire


in what times and under what circumstances, those cases
were decided, I have not found any of them since the
revolution of 1688, when the principles of civil liberty
and enlightened jurisprudence began to be better under-
stood than before ; and most of those previous to that
event, were decided by Jefferies: such as the case of
Lady Lisle, reported in 4 State Trials, p. 106. John
Fernley's case, ibid. p. 131, and Elizabeth Gaunt's case,
p. 142. They were all cases of receivers of traitors or
accessories after the fact. With respect to the former,
which served as a prototype of the others, I trust there
is only one opinion among us. I will only refer .the
court to Mr. Hume's account of this atrocious legal mur-
der, and of the case of E. Gaunt, in his 8th vol. of the
History of England, p. 233 (octavo edition); which is as
follows :

" Of all the executions during this dismal period, the
most remarkable were those of Mrs. Gaunt and Lady
Lisle, who had been accused of harboring traitors. Mrs.
Gaunt was an anabaptist, noted for her beneficence, which
she extended to persons of all professions and persuasions.
One of the rebels, knowing her humane disposition, had
recourse to her in distress, and was concealed by heY.
Hearing of the proclamation, which offered an indemnity
and rewards to such as discovered criminals, he betrayed
his benefactress, and bore evidence against her. He re-
ceived a pardon as a recompense for his treachery ; she
was burnt alive for her charity.

" Lady Lisle was widow of one of the regicides, who
had enjoyed great favor and authority under Cromwell,
and who having fled, after the restoration, to Switserland,
was there assassinated by three Irish ruffians, who hoped
to make their fortune by this piece of service. His
widow was now persecuted for harboring two rebels,
the day after the battle of Sedgemoor ; and Jefferies
pushed on the trial with an unrelenting violence. In
vain did the aged prisoner plead, that these criminals had
been put into no proclamation ; had been convicted by
no verdict ; nor could any man be denominated a trai-
tor, till the sentence of some legal court was passed upon
him that it appeared not by any proof, that she was so
much as acquainted with the guilt of the persons, or had


heard of their joining the rebellion of Monmouth : that
though she might be obnoxious on account of her family,
it was well known that her heart was ever loyal, and that
no person in England had shed more tears for that tragi-
cal event, it which her husband had unfortunately borne
too great a share : and that the same principles which
she herself had ever embraced, she had carefully instilled
into her son, and had at that very time sent him to fight
against those rebels whom she was now accused of har-
boring. Though these arguments did not move Jeffer-
ies, they had influence on the jury. Twice they seemed
inclined to bring in a favorable verdict. They were
as often sent back with manaces and reproaches, and at
last were constrained to give sentence against the pri-
soner. Notwithstanding all applications for pardon, the
cruel sentence was executed. The king said that he had
given Jefferies a promise not to pardon her. An excuse
which could serve only to aggravate the blame against

These cases and decisions (Throgmorton's and Lady
Lisle's), I admit, are precedents, if they choose to rely
on them, and they can find no other.

Since the revolution of 1688, though the doctrine has
been admitted by writers to be true, yet all the decisions
of the court, that I can find, which bear upon the subject,
lead to a directly opposite conclusion. The most numer-
ous class of cases relate to convictions which took place
before judges of a very different stamp, w"hose decisions
are entitled to the highest respect. The occasion on
which there was the greatest number of prosecutions for
treason, in levying war, was the rebellion in the year 1745 :
and no one can doubt the accuracy of the reports of the
decisions at that period, or the ability of the judges who
presided, and the counsel who conducted the prosecu-
tions. We all know the history of those times, and what
cruelties the late Duke of Cumberland committed after
the victory of Culloden. His name is held in general
detestation by the people of that part of the country,
from parent to child. Yet there was not a single instance
of a conviction for assisting or harboring the traitors.
History mentions the wonderful escape of the pretender,
and his concealment and protection, by the unexampled


courage and fidelity of Miss Macdonald. Yet no attempt
was made to convict her of treason, or others who aided
him, or even to prosecute them. Though he was a long
time concealed, and in eluding the vigilance of his pur-
suers was favored by many, yet it is remarkable that no
person who assisted him in his distress, was attempted
to be punished. But let us not draw any inference from
the silence and inactivity of the officers of the crown,
but advert to what was actually done.

The fact of the pretender's raising an army in Scot-
land, with a view of seating himself on the throne of
Great Britain ; his giving battle to the king's troops,
defeating them several times, and marching into the
heart of England, could have been proved by thousands
of witnesses. If the .doctrine, that persons absent and
not in arms might be charged with the overt acts of
others with whom they were connected, were admitted,
nothing would have been more simple and easy, than
the mode of conducting the prosecutions on this occa-
sion. The prosecutors would have had nothing to do,
but to charge an overt act in some county through which
the pretender's army had passed, no matter which, to
prove the fact of his having done so (a fact as notorious
as that the places themselves were in existence), and then
to prove that ihe person charged was connected with
the rebellion, and assented to it ; whether he had ever
been in the county where the act was charged upon him,
or had even raised a finger in opposition to the govern-
ment or not, was a matter of no importance. His con-
viction followed as a necessary consequence.

But did the courts and prosecutors proceed in this
manner? A reference to their decisions will prove, that
the courts proceeded on the contrary doctrine ; and that
the judges, as well as the counsel for the prosecutions,
thought that they could only be sustained by bringing
the overt act home to the person himself, by establishing
the fact that the accused was present, and personally
committed the overt acts charged in the indictment.

Justice Foster, in his Crown Law, pp. 3 to 6, gives the
form of the indicment and says that " it was used
against all the rebels who were tried in Surrey (except
one, for reasons explained); that the overt acts were laid


in different counties of England or Scotland, as the cases
respectively required ; that the fact of taking and possess-
ing the city and castle of Carlile, was not charged on
those who were not concerned in that part of the rebel-

According to the doctrine of the gentlemen on the
other side, what necessity was there of varying the overt
acts from one county to another? Why charge them in
different counties, if any one might be charged with the
acts of others wherever committed ? _ For what purpose
was the act of taking Carlisle not charged on those who
were not concerned in that part of the rebellion? If
this doctrine be correct, it was no matter whether they
were present or absent ; if they were concerned, they
were all in the eye of the law, present on the spot. Was
not Judge Foster talking nonsense, when he stated dif-
ferent modes of charging the overt acts, if their doctrine
be correct? One mode would have done for all, whether
they were present or absent. But this is not a loose ex-
pression put down incautiously by Judge Foster, but an
opinion on which the court acted.

In Deacon's case, Foster's Crown Law, pp. 9, 10, it was
insisted for the prisoner, that as the overt acts were laid
in Cumberland, evidence of an overt act in Manchester
should not be given ; but the court determined " that
it was indeed necessary that some overt act laid be
proved on the prisoner in Cumberland ; but that being
done, acts of treason, tending to prove the overt acts laid,
though done elsewhere, might be given in evidence."
It is evident from the expressions, " proved on the pris-
oner," and "that being done," as well as the whole con-
text, that the court required proof of an act in Cumber-
land, and that the prisoner himself had in person com-
mitted the overt act charged, and that no evidence short
of this was sufficient.

If gentlemen doubt the propriety of this construction,
there is authority in the same book, page 22, which con-
firms it. In Sir John Wedderbourne's case, the overt
acts were laid at Aberdeen ; it was proved by two wit-
nesses that he was with the rebels at Aberdeen ; and
then proof was offered of an overt act elsewhere, which
was objected to by his counsel; but " this objection was


overruled upon the reasons before given in the case of

What necessity was there to prove that he was with
the rebels at Aberdeen ? If their doctrine be law, proof
that the rebels had been there was sufficient ; and that
fact being as well known as that there had been a rebel-
lion, no evidence of any overt act of any sort, at any-
place, done by the accused, was wanting; proof of any
act, however secret, and however remote from the scene
of action, was all that was requisite.

In the trial of Lord Balmerino, reported in gth State
Trials, p. 605, one of the overt acts charged was his march-
ing into and taking possession of the city of Carlisle, and
holding it for the pretender. He denied that in point ot
fact he was present at the taking of the city. This ob-
jection was met by the counsel for the crown, among
whom was the late Lord Mansfield, by a reference to the
testimony, proving that he marched in with the rebels
'after the surrender, and to the other charges in the indict-
ment which had been clearly proved ; so that it was un-
important whether this was established or not. Neither
Lord Mansfield, Sir John Strange, nor any of the other
great lawyers who were counsel for the crown, thought
of the objection now urged by the gentleman on the
other side. They exerted themselves merely to show
that the day was immaterial; and that the subsequent
entry of the prisoner into the city, and remaining in it
with the rebels, was sufficient for his conviction, exclusive
of the other acts proved. Had they understood the law to
be as the counsel for this prosecution understand it, they
would have at once replied, " Whether the prisoner
were personally present at Carlisle or not is of no
consequence ; others with whom he was connected
were there, and did the act charged on him, and as all are
principals in treason, their acts are his." But they urged
no such doctrine ; it was reserved for the ingenuity of
future ages to discover it. It is evident that they thought
it necessary to prove that he was present and an actor in
the scene where the overt act was laid ; or that this
charge in the indictment must be abandoned. This has
uniformly been the rule, nor can any instance be shown
where a party who was not present himself where the


act was done, but a mere procurer, has been subjected to
the punishment of treason.

In opposition to these decisions (given at a time when
there was certainly no partiality in favor of the accused,
but as much learning and virtue on the bench, and as
great a portion of talents at the bar as in any period of
English history, and which are not opposed by a single
case since the revolution, when the independence of the
judiciary, and the principles of a free government were
first established and confirmed) the counsel for the prose-
cution may quote Lord Coke, Stanford, and other emi-
nent law writers, since the age of Henry VIII. If this
be so it proves nothing, except that the theory was
one way, and the practice the other ; and as this is a
practical question, we ought to abide by the precedents
established by the courts on this law as they occurred,
and not the dicta of men, however eminent, who appear
to have written without due consideration, and to have
done little more than to copy verbatim the speculative
opinions of their predecessors.

For the history of this opinion, I beg leave to refer to
Judge Tucker's very able treatise on the subject. He
has traced it to its source, and shown how error is begot-
ten by error. See Tucker's Blackstone, 4th vol. appen-
dix, note b., pp. 40 to 47. After having shown the impor-
tant effect of the word " only," in the constitution, " as
the strongest term of limitation and restriction in our
language, that its obvious meaning is, that " treason
shall consist in these two cases " (levying war and adher-
ing to their enemies, &c.), and no other cases whatever,
he proceeds :

" And here it may not be improper to repeat the re-
mark, that this definition creates as well as limits an
offense which had no previous existence ; whereas the
statute 25 Edward 3 did not create, but only defined an
offense already k*how to the common law. ' That statute,'
said Stanford (afterwards chief justice of the common
pleas), ' is but a declaration of certain treasons, which
were treasons before at the common law.' Will any man
presume to advance that there is any treason against the
United States by the common law ? that a limited federal
republic of yesterday hath already appropriated to itself
i. 39


all the foul corruptions of despotism, collected from time
immemorial. To infer that the courts of the United
States are left to range at large in the boundless field of
construction in search of other cases of treason against
the United States, seems to my apprehension to be a
doctrine equally unfounded, awful, and dangerous.

" If, then, we are not at liberty to reject this important
word ' only,' we must assign to it some determinate sig-
nification, and if that signification be that which I have
ascribed to it, to wit, ' these cases and no other what-
soever,' its necessary operation and effect must be to cut
up all constructive treasons, root and branch. If a sin-
gle scion be left, it will be the parent of ten thousand
others, shedding like the ' Buonas Upas' their baneful in-
fluence far and wide, poisoning and desolating the whole
region where they are permitted to take root. Faction
and factious men are not confined to any one party in a re-
public, and when such men have thecommand of the purse,
the sword and the scales of justice, the lives of their oppo-
nents will not weigh a feather in competition with their
own advancement, or that of their party. This, the framers
of the constitution must have considered, and therefore
endeavored by the strongest terms, and the strictest limi-
tation, to restrain within the narrowest limits. And this
should serve as the polar star of construction to judges
and all others who may be called upon to administer
the government.

" Thus having sought, and, I trust discovered not only
the literal sense and meaning of the word ' only,' but also
its proper interpretation, according to the true spirit of
our federal constitution, I shall now inquire into its effect
and operation in certain cases, which might have been
supposed to be treason Itad it been omitted.

"In England it is now generally admitted, that ' in
treason, all the participes criminis are principals,' there
being, as it is said, no accessories to that crime ; and that
every act which, in case of felony, would render a man
an accessory, will in case of treason make him a principal.*

* The ancient law of England was, that they who were present and abbeting
others to do the act, were accessories and not principals. Per Bromley, C.
J., Plowden, 97, 98. .See Plowden's note thereon, ib. 99, 100, whereby it
seems the law was changed tempore Henry 4, I Hale, 437.


" This doctrine was laid down by Judge Chase in his
charge to the jury, on the trial of Fries,* but as I con-
ceive it to have been extrajudicial, for reasons already
mentioned, I shall take the liberty now to inquire
whether it be not also questionable. But before I do
this I shall endeavor to trace this copious branch of con-
structive treason to its fountain head, and show how
small a portion of that fatal torrent flows from an uncor-
rupted spring. In doing this, I shall begin with the
latest authorities and conclude with the most ancient.
This doctrine is advanced by Judge Blackstone (4th Com.
35, 36), for which he cites 3 Institutes, 138. I Hale's P.
C. 613, and Foster, 342. The latter cites 3d Institutes,
9,f and 138, and I Hale, 235, 237, 328, 376. Hale him-
self cites 3 Inst. 16, and 138. Stanford's P. C. 32, and
the year book, I Hen. 6, 5, of which last case I shall make
particular mention by and by.

"Sir Edward Coke, 3 Inst. 16, and 138, cites Stanford,
P. C. 3, and the Year Books, 19 H. 6, 47, and 3 H. 7, 10.

" Stanford, P. C., 3 and 32, 40 and 44, cites the same
identical cases from the Year Books, that Sir Matthew
Hale and Sir Edward Coke had cited before. From these
three original cases, I Hen. 6, 5 ; 19 Hen. 6, 47, and 3
Hen. 7, 10, we must consequently derive the doctrine in

" The case of I Hen. 6, 5 (A. D. 1422) is thus mentioned
by Stanford, p. 32. A man was outlawed of felony, was
imprisoned in the king's bench and indicted and attainted
of breaking prison, and releasing certain persons confined
for treason, and this was adjudged petit treason.

" Upon what principle this case could be judged petit
treason, it might puzzle any man at this day to conjec-
ture, and creates a presumption that the case is not very
accurately reported. But there is another principle of
the common law on this particular subject of breach ot
prison, which will probably lead us to understand it. It
is this: If there be felons in prison, and a man knowing
of it, breaks the prison and lets out the prisoners, though
he knew not that there were felons there, it is felony ;
and if traitors were there, it is treason. Now if the per-

* Fries's Trial, 198.
f This is a mistaken reference in Foster ; it should be 16.


sons released in the case here referred to, were imprisoned

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 57 of 64)