Aaron Burr.

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

. (page 58 of 64)
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for petit treason, instead of high treason, this judgment
would be regular; but by no rule of law could they be
deemed guilty of petit treason in any other case. And,
if this were the case, it would prove that there was no
distinction in principle between treason and felony ; in-
asmuch as the releasing a felon from jail is felony, in the
same manner as releasing a traitor from jail is treason.
And it appears from Stanford, that a stranger rescuing
one indicted for felony, was indicted and tried, and found
guilty for that offense before the principal felon was tried.
But Sir Michael Foster gives us a further clue to the un-
derstanding of this case ; for in speaking on this subject,
he observes with great reason that the forcing of prison
doors may be considered as overt acts of ' levying war ;'
the species of treason for which Benstead, of whom he
was speaking, was indicted. And this might have been
the case in this instance. These cases confirm the conclu-
sion, that the law made no distinction at that time be-
tween treason and felony. A statute was made in the
year after this case was adjudged, 2 Hen. 6, c. ult. cited
by Stanford, whereby it was declared to be treason in
any person imprisoned to break prison. All which cir-
cumstances united, create a strong presumption that this
case is not correctly reported, nor the grounds of the
judgment perfectly understood.

" The second case occurred thirteen years after, in the
year 1441, and is thus mentioned in Brooke. A man was
indicted for forging false money, and another at the same
time ; one confesses and approves, and has a coroner as-
signed him; the other pleads not guilty, and it was found
that he was consenting and aiding in forging the false
money, and so guilty. Stanford mentions the case in
the like manner, and it is evident from this state of it,
that the defendant was present, aiding and assisting, and
so would have been a principal in felony as well as in
treason, which is confirmed by Stanford, who proceeds
thus : ' It is the same case in rape, where one does the
act, and another assists him to commit the rape; he is
by this a ravisher.' The law is the same in felony as well
as in treason, that all present, aiding and assisting at the
fact, are principles. Neither of these cases, therefore, jus-



ARGUMENT OF MR. WICKHAM. 613

tify the doctrine advanced at this day, that whatever act
will make a man an accessory in felony, will make him a
principal in treason.

" The next case is 3 Hen. 7, 10, and is relied on by Stan-
ford and Sir Edward Coke, as establishing the doctrine
above mentioned ; it was thus: one Cokker was indicted
and attainted of making false money, and afterwards one J.
B. was indicted for traitorously and knowingly entertain-
ing and comforting him ; and was found guilty, and the
question was, whether he would be deemed an accessory
to Cokker? Brian, justice, said he might be accessory, for
such counterfeiting was felony before the statute, and is not
cut off by it; and in every treason, felony is implied, &c.
' et tamen Hussey Cap : Inst : dixit quod in hoc quod fac-
tum est proditio, non potest esse accessarius felonice et
proditorie non potest esse accessarius,' for which doctrine
he refers to the preceding case of 19 Hen. 6, 47. Here,
then, we have this opinion of two judges in opposition
to each other; and we find the latter supporting his
opinon by a reference to the very case, which, we have
already shown, does not authorize it.

"These are all the ancient authorities referred to either
by Stanford, Sir Edward Coke, Sir Matthew Hale, or any
writer on the subject ; and it requires very little discern-
ment, I apprehend, to discover that the two former do
not warrant the latter, and that the latter is the Dictum of
a single judge. And Brooke cites it in that manner:
' Nota, P. Hussey C. I. que accessory ne poet este a
treason ; le recetment de traitor, ne poet este tantum
felony, mes est treason.' Had this been the established
doctrine of the common law, we might have expected
that the laborious and indefatigable Sir Edward^Coke
(under whose auspices it was brought to maturity, as
we shall see hereafter) would have referred us to the Mir-
ror, Bracton, Britton, Fleta, or Glanville, in some of
which it would most certainly have been found."

In page 47 he adds, " Both common law and common
sense have been able to perceive, and draw a distinction
between the actual perpetration of a crime, and the bare
advising, or even procuring the perpetration of it, without
being present when it is perpetrated ; they have also been
t.ble to distinguish between the perpetration of a crime,



6 14 TRIAL OF AARON BURR.

and the receiving and comforting one who has been him-
self the perpetrator, knowing him to be such ; it was
reserved for the astute reason of judges appointed by the
crown, to discover that there was no distinction between
these cases, when the sacred majesty of their master's
head was in danger, or supposed to be so; it was reserved
for them to declare, that to give a meal's victuals to one
guilty of treason, was a crime of the same malignity as
levying war against the throne, or as aiming a dagger at
the heart of the monarch."

An additional reason may be drawn from the law of trea-
son in compassing the king's death. There, as the crime
consists in the attention, all are principals, and the aider or
procurer in the first instance is guilty ; and this rule has
been transplanted or extended by theorists to the other
great branch of treason, " leving war " against the govern-
ment. Lord Coke was very fond of quaint expressions ; of
these one was, that " in the highest and lowest offenses all
are principals." That in them there are no accessories.
As a general principle, can this be correct? Apply it to
the lowest offenses ; apply it to the case of an assault and
battery. Suppose a man, having an enmity against
another, is determined to gratify his vengeance against
him ; he does not act himself, but employs a bravo to
assassinate or severely beat him. A. thus advises and
procures .B. to beat C., but is not present at the beating :
will it be contended that an action or an indictment will
lie against A., who was absent, for this assult and battery?
The authority of Hawkins in his Pleas of the Crown, book
2d, ch. 29, 4, is decisive on this point : " It seems agreed
that whosoever agrees to a trespass on lands or goods,
done to his use, thereby becomes a principal in it. But
that no one can become a principal in a trespass on the
person of a man by any such agreement." Also it seems
agreed " that no one shall be adjudged a principal in any
common trespass, or inferior crime of the like nature, for
barely receiving, comforting, and concealing the offender,
though he knew him to have been guilty, and that there
is a warrant out against him, which by reason of such
concealment can not be executed."

Could it be supposed that gentlemen would have de-
nied this to be law ? It never can be admitted that the



ARGUMENT OF MR. WICK HAM. 6rs

procurer or adviser of a trespass is punishable as a prin-
cipal. No man can be a trespasser against the person of
another, who is not present and acting or assenting to it.

Mr. Hay here insisted that if a man procure another
to beat a third, the procurer is a trespasser, and will be
liable to an action or indictment.

Mr. Wickham. I insist that the law is otherwise ; and
I refer to the authority I have already produced. They can
adduce none to oppose it ; and were it necessary it could
be confirmed and fortified by others. To be liable for
the trespass on the person, he must be present. If a man
in Frederick county advise another to beat a man in
Henrico, and he does beat him accordingly in Henrico,
where the adviser never was, an action or a public
prosecution will certainly never lie against the adviser.

But admitting that both the theory and practice in the
English courts concur in establishing the doctrine which
the gentlemen contend for, and that any man, connected
in any manner with the traitors, is himself a traitor, yet I
contend that it can not be law in this country, where the
constitution of the United States has pointed out and
established a different rule. The statute in England, on
which all the indictments are founded, is well known to
be that of 25 Edw. 3. It does not create any new treasons
of which the punishments are pointed out, or enlarge the
doctrine of treasons ; but on the contrary was intended
to narrow the legal definition of this crime, which was
punishable at common law.

In construing the statute, therefore, the judges con-
sidered it as made in affirmance of the common law,
except where the restraining clauses were permitted to
operate ; it was construed according to the course of the
common law, and the doctrine that all are principals in
treason, if it rests on any foundation, can have no other
than the common law ; I Hale P. C. 76-87, proves that
this statute, 25 Edw. 3, was made to confine and limit the
crime of treason, " which was before that statute arbi-
trary and uncertain." In page 85 he calls it " the great
boundary of treason " ; and shows that its object was to
prevent constructive treasons. This salutary statute is
also spoken of by Hume, as a very popular act passed to
narrow, define, and limit treasons known at common law.



616 TRIAL OF AARON BURR.

Under the federal constitution, I persume, it will
hardly be contended by the counsel for the prosecution,
that we have any common law, belonging to the United
States at large. I always did believe and still believe,
that we have no common law for the United States, espe-
cially in criminal cases. The only ground on which the
common law becomes a rule of decision in the federal courts,
is under that clause in the judiciary law (i Laws of United
States, ch. 20, 34, p. 74), which makes the laws of the several
states a rule of decision, as far as they respectively apply.
The common law is part of the law of Virginia, and the
act of congress has adopted the laws of Virginia as the
rule of decision in cases where they apply.

With respect to crimes and offenses against the United
States, which must be punished in an uniform manner,
throughout the Union, it seems clear, for the reason al-
ready given, that none such can exist at common law, as
the United States have in that character no common law,
and that they must be created by statute. Unquestionably
the gentlemen will not deny this uniformity ; they will not
contend that what is treason in Maryland is not treason in
Virginia, or vice versa. If it exist at all, it must be uni-
form, embracing the whole of the United States. I do
not know whether gentlemen will admit, but I presume
they will not deny, that treason against the United States
is only punishable by virtue of the act of congress, under
the constitution of the United States, and that no in-
dictment would lie against any person for such an of-
fense till it passed; and the crime being punishable by
general statutory regulation, extending throughout the
United States, the mode in which that regulation operates
must be uniform. The act of congress does not admit of
different constructions in different states. To illustrate
this position by a familiar case, I will mention the late
sedition law. One party thought it unconstitutional ;
another party thought it consistent with the constitution,
and that a person guilty of the offense could be pun-
ished in each state, by the common law in such state.
It was a question of jurisdiction, but all parties agreed,
that if the constitution did authorize (or did not pro-
hibit) congress to legislate on the subject, no person
could be punished for such an offense, till they passed an



ARGUMENT OF MR. WICK HAM. 617

act creating the offense ; because there was no general
common law pervading the United States. The party
who thought it constitutional, were of opinion that the
offense was punishable as soon as the law passed. The
other party of course thought otherwise.

That the United States have no common law, and that
offenses against them must be created and prohibited by
statute, is the opinion of the learned Judge Chase,
and I believe that this opinion received the unqualified
approbation of those who thought most unfavora-
bly of his opinions and judicial conduct on other occa-
sions.

Now, as there is no general common law of the United
States, the act of congress must be constructed without
any reference to any common law, and treason is to be
considered as a newly created offense, against a newly
created government.

In England treason and felony are classes or descrip-
tions of offenses at common law ; they are generic terms ;
aiders and abettors are punished in the former, if you will,
as principals, in the latter as accessories.

It is a rule of law there, that, when a statute is made
in affirmance of the common law, or to supply the defects
of the common law, it should be expounded according to
the common law. See 10 State Trials, 436 ; M'Daniel's
case, Hob. Rep. p. 98.

It has therefore been held, that if an act, criminal at
common law, be declared by a statute to be felony or
treason, it being made to supply the defects of the com-
mon law, its prototype, the same consequences follow as
if it were felony or treason by common law. It becomes
therefore unnecessary to mention accessories, or even to
define the punishment ; and accordingly there are acts
of parliament which go no further than to declare, that
the offenses mentioned in them shall be felony, without
even mentioning the punishment.

This rule may be questioned on this ground, that penal
statutes should be construed strictly ; but it is generally
considered as law in England, that when a felony is created
by statute, accessories to it, though not named in the
statute, are punishable ; and that all legal consequences
of felony are attached to it by the common law, except



6i8 TRIAL OF AARON BURR.

in cases where the special nature of the act leads to a
different conclusion.

This rule is illustrated by the decisions on the 28 Hen.
8, chap. 15, which makes piracy, an offense not punish-
able at common law, felony.

It has been solemnly adjudged, that as this was not a
common-law offense, it worked no corruption of blood ;
that accessories to it were not punishable ; in short, that
the statute not being made in imitation or supply of the
common law, shall not be construed according to the
course of the common law. Hawkins, in his P. C. p. 152,
c. 37, speaking of the said act of Hen. 8, making piracy
felony, says that " in the exposition of the statute, it has
been holden, first, that it does not alter the nature of the
offense, so as to make that which was a felony only by
the civil law, now become a felony by the common law ;
for the offense must still be alleged as done upon the sea,
and is no way cognizable by the common law, but only
by virtue of this statute ; which by ordaining that, in
some respects, it shall have the like trial and punishment
as are used for felony at common law, shall not be carried
so far as to make it also agree with it in other particulars
which are not mentioned. And from hence it follows,
that this offense remains as before, of a special nature,
and that it shall not be included in a general pardon of
all felonies, which as it was, before this statue, to be ex-
pounded of no felonies which are such only by the civil
law, shall continue still to have the same construction."
" From the same ground also it follows, that no persons
shall, in respect of this statute, be construed to be, or
punished as accessories to piracies before or after, a;
might have been, if it had been made a felony by the
statute, whereby all those would incidentally have been
made accessories in the like cases-, in which they would
have been accessories to a felony at common law ; and
from hence it follows that accessories to piracy, being
neither expressly named in the statute, nor by construc-
tion included in it, remain as they were before, &c."

If therefore I be right in my postulatum, that there is
no common law of the United States as such, it follows
as a necessary consequence, that no persons can be pun-
ished for treason, or any other offense under an act of



ARGUMENT OF MR. WICKHAM. 619

congress, creating such offense, unless they come within
the description, of the act ; that no person can be said to
have levied war against the United States, where it had
not been levied by himself, but by others ; and that no
overt act of others can, under the statute, be made his
overt act.

That such was the opinion of the framers of the act of
congress (Laws of the United States, vol. I, page 100),
for the punishment of treason and other offenses, is
manifest.

In sections 10 and n of the act, the punishment of
accessories before and after the fact is defined ; that of
the former is death, as in the case of a principal ; that
of the latter, fine and imprisonment.

If the English rule, concerning accessories to felonies,
were thought to obtain, to what purpose was the loth
section enacted ? By the loth section, the person who
advises the piracy is declared to be an accessory and
made punishable. If it were implied, why was this pro-
vided? In section 16 persons stealing military stores,
their counsellors, aiders, and abettors are mentioned ; why
were they expressly mentioned, if they would have been
necessarily implied ? In the loth section some offenses
are enumerated, the accessories to which, before the fact,
are expressly made punishable with death ; and in the
nth section the accessories to the same crimes, after the
fact, are in express terms made punishable with impris-
onment not exceeding three years, and with fine not ex-
ceeding five hundred dollars ; but even in this enumera-
tion, treason is not included. In both sections the offenses
of murder, robbery, or other piracy are mentioned, and
in the latter, felony is added. The obvious conclusion
resulting from this provision in these sections is, that
without it, accessories to those offenses neither before
nor after, would have been punishable ; and that as trea-
son is omitted, accessories to that offense, whether before
or after its commission, are not subject to be punished.
The 23d section affords an argument still more directly
applicable to the present question. It provides that
" whoever shall by force set at liberty or rescue a'ny per-
son who shall be found guilty of treason, murder, or any
other capital crime, or rescue any person convicted of



620 TRI4L OF AARON BURR.

any of the said crimes, going to execution, or during ex-
ecution, every person so offending, and being thereof
convicted shall suffer death." "And if any person shall
by force set at liberty or rescue any person who before
conviction shall stand committed for any of the capital
offenses aforesaid, or if any person or persons shall by
force set at liberty or rescue any person committed for,
or convicted of, any other offense against the United
States, every person so offending, shall on conviction be
fined not exceeding five hundred dollars and imprisoned'
not exceeding one year." This provision punishes those
who rescue persons guilty of these crimes after convic-
tion, with death, but after commitment and before con-
viction, with fine and imprisonment only.

Now, according to the gentlemen's arguments, all are
principals, as well the mere receivers after as the procur-
ers, or the actual perpetrator of the offense. There is no
distinction in the books. The English writers consider
persons who rescue or set at liberty traitors, as acces-
sories after the fact ; and they are said to be indictable
as traitors. Why, then, was this clause inserted? A re-
ceiver of a traitor is as much a principal, according to
the doctrine laid down in the English books, as a person
aiding before the fact. Will the counsel for the United
States contend, that such a receiver is punishable as a
traitor, while the person who forces open the doors of
the prison, and rescues the principal out of the hands of
the marshal, shall be punishable only by a fine of five
hundred dollars, and by one year's imprisonment ! If so,
a man might rescue a traitor before conviction, and con-
duct him to another who receives him. The receiver
who, like Lady Lisle, only entertains him but for one
night, would be punishable with death, while the rescuer
and conductor, whose crime has the additional ingredient
of force, and that force directly employed in opposing the
administration of justice, would be only fined and impris-
oned ! It is so absurd and contrary to the rules of equal
justice, that it is impossible that the legislature could
have intended it. It proves that congress were of opin-
ion that aiders and abettors were not, according to the
constitutional definition of treason, traitors and principals.
If this were an English statute made with reference to



ARGUMENT OF MR. WICK HAM. 621

the common law, I might with propriety contend, that it
was the intention of the legislature, that when counsel-
lors, aiders, and abettors of some offenses are named and
not those of others, those not mentioned should be con-
sidered as not within the meaning of the act, according
to the maxims of law.

If this were not their intention, why did they mention
these terms in one and not in the other?

But it will be said that in high treason it is unneces-
sary to mention counsellors, aiders, &c., because in trea-
son there are no accessories ; all are principals. Now
this argument is founded on a total misapplication of
terms. If they can be punished at all, it is as principals ;
but in point of fact, there may as well be aiders and abet-
tors in treason as in other offenses. Indeed there are
many instances to be found in the statute-books of these
very words " aiders, counsellors, and abettors " being used
and applied to treason. Th*e statutory treasons between
the 25 Edw. 3, and I Mary are collected by Lord Hale,
in the 24th chapter of his Pleas of the Crown, p. 258, and
among others I would refer the court to the 20 Hen. 6,
ch. 3, mentioned by him in page 270; 26 Hen. 8, ch. 13,
and 27 Hen. 8, ch. 2, in page 275 ; 35 Hen. 8, ch. I, in p.
280 ; all of which, and I doubt not many more, expressly
mention counsellors, aiders, and abettors. If it be not
necessary to mention aiders and abettors to make them
punishable, why are they inserted in these statutes ? In
page 375, '' maliciously to wish, will, or desire, by word or
writing, or by craft to imagine, invent, practice or attempt
any bodily harm to the king, queen, heir apparent, &c.,
to detain his castles, &c.," is " enacted to be treason in
the offenders, their aiders, counsellors, consenters, and
abettors." " Counterfeiting the privy seal, privy signet,
or sign manual is made treason, and the offenders, their
counsellors, aiders, and abettors, to suffer as in case of
treason, &c." The statutes, which are made with a refer-
ence to this law, mention aiders, counsellors, and abet-
tors in some clauses, and not in others. Is not the
inference fair, that where they are not mentioned, they
are not intended to be subjected to punishment? And
when congress took up the doctrine of treason, with refer-
ence to the constitution, and did mention the aiders and



622 TRIAL OF AARON BURR.

abettors in some cases, but not in others, is not the con-
clusion equally fair that they did not intend that they
should be involved in the guilt or punishment of treason,
except where they are expressly mentioned ? But a still
better reason may be given why congress did not mean
to include aiders, counsellors, &c., in the guilt or punish-
ment of treason. It was prohibited by the constitution
of the United States to enlarge the doctrine of the com-
mission of treason, and that they knew that such a pro-
vision would be void. This brings me to the considera-
tion of the constitution itself. I have before endeavored
to demonstrate that this instrument is not to be explained
by the same narrow technical rules that apply to a statute
made for altering some provision of the common law ;
but that such a construction should be given, as is con-
sistent not only with the letter, but the spirit in which
the great palladium of our liberties was formed.

The object of the American constitution was to per-
petuate the liberties of the people of this country. The
framers of that instrument well knew the dreadful punish-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 58 of 64)