Aaron Burr.

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

. (page 59 of 64)
Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 59 of 64)
Font size
QR-code for this ebook


ments inflicted, and the grievous oppressions produced,
by constructive treasons in other countries, as well where
the primary object was the security of the throne as
where the public good was the pretext. Those gentle-
men well knew from history, ancient as well as modern,
that, in every age and climate, where the people enjoyed
even the semblance of liberty, and where factions or
parties existed, an accusation of treason, or a design to
overturn the government, had been occasionally resorted
to by those in power, as the most convenient means of
destroying those individuals whom they had marked out
for victims ; and that the best mode of insuring a man's
conviction was to hunt him down as dangerous to the
state. They knew that mankind are always the same,
and that the same passions and vices must exist, though
sometimes under different modifications, until the human
race itself be extinct. That a repetition of the same
scenes which have deluged other countries with their
best blood, might take place here, they well knew ; and
endeavored as far as possible to guard against the evil, by
a constitutional sanction. They knew that when a state
is divided into parties, what horrible cruelties may be



ARGUMENT OF MR. WICK HAM. 623

committed even in the name and under the assumed au-
thority of a majority of the people, and therefore en-
deavored to prevent them. The events which have since
occurred in another country, and the sufferings under
Robespierre, show how well human nature was under-
stood by those who framed our constitution.

The language which they have used for this purpose is
plain, simple, and perspicuous. There is no occasion to
resort to the rules of construction to fix its meaning. It
explains itself. Treason is to consist in levying war
against the United States, and it must be public or open
war; two witnesses must prove that there has been an
overt act. The spirit and object of this constitutional
provision are equally clear. The framers of the consti-
tution, with the great volume of human nature before
them, knew that perjury could easily be enlisted on the
side of oppression ; that any man might become the vic-
tim of private accusation ; that declarations might be
proved which were never made ; and therefore they
meant, as they have said, that no man should be the vic-
tim of such secret crimination, but that the punishment
of this offense should only be incurred by those whose
crimes are plain and apparent, against whom an open
deed is proved.

Now let me ask the opposite counsel what security is
afforded by the constitution to the best or meanest man
in this country, if the construction on which they insist
be correct ? and whether, instead of a safeguard to the
citizen, they do not reduce it to an unmeaning phrase ?
According to the construction on which they must insist,
or abandon the prosecution, all that is wanted to fix the
guilt of treason on any individual, is that an insurrection
shall have existed somewhere in the United States, no
matter where. Observe, sir, that I am arguing on ab-
stract principles, and not with a particular application.
But suppose the government wished to destroy any man ;
they find him in Georgia : an insurrection happens in
New Hampshire. This will suffice for the purpose, and
if this cause go on, they will be obliged to contend that
less will suffice ; that an insurrection is not necessary,
but that even a peaceable assemblage going down the
Ohio is sufficient for the purpose. They merely under-



624 TRIAL OF AARON BURR.

take to prove the existence of an insurrection : that a
number of people have committed an act of insurrection ;
the man who is selected to be a victim is dragged from
one end of the continent to the other, before a judge who
is the creature of the government, appointed at the
pleasure of the government, liable to be thrown out of
office if he offend the government : the cause comes on
to trial ; they prove an insurrection ; and when once this
insurrection or assemblage can be proved by two witness-
es, nothing remains but to connect with it the individ-
ual thus marked for destruction ; and as this may be
done by evidence of his secret acts or even his declara-
tions, he may be seized and hurried by force from New
Hampshire to Georgia, or to any part of the United
States which his accusers may chose as best fitted for
their purpose ; it is in vain that he may prove he was not
present when the offense of which he is accused was com-
mitted ; that he never at any period of his life had been
there ; that the actors and the scene were alike unknown
to him ; wretches, who from views of interest or revenge,
are ready to further the views of his oppressors, will pre-
sent themselves, and he may be convicted of treason in
levying open war against the government, with people
whom he never saw, and at a place where he never was.
Gentlemen may say that this only shows that the citi-
zen may be equally the victim of false accusations of
other offenses ; that it proves nothing, but that the inno-
cent may be condemned on the testimony of perjured
witnesses. In no other crime can a man be punished
except in the county or district where he committed the
act. Let gentlemen mention for what other offense an
individual may be tried in a different district from the
one in which he did the act which constitutes the essence
of the crime ; and admitting their principle in its full force
what becomes of the constitutional provision on this
subject? where is the constitutional tribunal to try him,
" an impartial jury of the state, wherein the offense has
been committed?" It is reduced to a mere nullity.
The constitution meant something ; but according to
this construction, it means nothing, and deceives instead
of affording any security. It may be objected that trea-
sonable conspiracies might thus go unpunished. To this



ARGUMENT OF MR. W1CKHAM. 625

it is a sufficient answer, that they may be prosecuted and
charged, according to the truth of the case. Here I will
mention an authority, which shows the propriety and
safety of limiting and fixing the definition of treason;
and how much the English statute, from which the words
of our constitution are taken, has been approved of in
that country. Hume's History of England, vol. 2, p. 487 :

" One of the most popular laws enacted by any prince
was the statue which passed in the 25th year of this
reign, and which limited the cases of high treason, before
vague and uncertain, to three principal heads : conspiring
the death of the king, levying war against him, and adher-
ing to his enemies ; and the judges were prohibited, if any
other cases should occur, from inflicting the penalty of
treason, without an application to parliament. The
bounds of treason were indeed so much limited by this
statute, which still remains in force without any altera-
tion, that the lawyers were obliged to enlarge them, and
to explain " a conspiracy for levying war against the
king, to be equal to a conspiracy against his life ; and
this interpretation seemingly forced, has, from the ne-
cessity of the case, been tacitly acquiesced in."

But it will be objected, that admitting the full force
of this reasoning, it can not avail us, as the point has
been settled by a decision of the supreme court ; and
that argument must yield to authority.

At the same time that I deny the legislative effect of
a decision of the supreme court, I will admit that it is
intitled to the highest respect, as evidence of the law ;
and that the reason which would warrant the court in
departing from it, must be strong and apparent: but to
entitle it to this respect, the decision must have turned
upon the very point in issue : and if the case should ever
occur of an anomalous decision of that court, in opposi-
tion to known and established rules of law, I* have no hesi-
tation in saying, that it ought not to form a rule for this
court. A mere dictum or an expression thrown out in
argument without consideration (or if there were consid-
eration, yet if the point in issue did not turn upon it)
ought not to be deemed an authority.

There is, however, no such decision ; the case never has
occurred ; for, until the present instance, there never has

40



626 TRIAL OF AARON BURR.

been an attempt in the courts of the United States, to
convict an individual for treason, who was not actually
on the spot when the act charged in the indictment was
committed.

I will admit that in the case of Messrs. Bollman and
Swartwout, which was only a question of commitment,
decided by the supreme court, there is a dictum, which
is reported to have fallen from the chief justice in deliv-
ering the opinion of the court, that is in opposition to the
doctrine I have been contending for ; but the decision of
the court did not turn on that point ; a determination of
that question, one way or the other, would have no ef-
fect on the judgment : it was therefore extrajudicial.
Your honor can set me right if I be mistaken ; but I be-
lieve the point now relied on by the prosecution, either
did not come before the court, or was very slightly
touched on by the bar: it was a mere dictum of the
judges stated arguendo, an oditer opinion delivered
without argument, and not necessary to have been de-
cided. A decision on the very point in controversy is
evidence of the law ; but an obiter opinion, a mere dictum
or decision on a point not before the court, is no author-
ity at all. Points of law not immediately arising on the
question, are frequently mentioned by judges, by way
of illustration or explanation ; and such opinions never
have the force of precedent. The question before the su-
preme court was, who were concerned in the con-
spiracy, and who were not ; but the point now before
this court, never came before the supreme court, for,
as I have already observed, this is the first at-
tempt in this country to convict a person of trea-
son, who was not present when the act was committed.
It is well known that Vigol and Mitchel, the only per-
sons of the multitude concerned in the western insurrec-
tion in 1794, who were convicted and sentenced to die
(but were afterwards- pardoned), though the most actively
engaged, were mere instruments instigated and per-
suaded by others; but what was the conduct of the gov-
ernment of the United States on that occasion? Were
those who fomented, advised, or encouraged the insur-
rection, but were not actors in it, indicted and prose-
cuted ? No actors and actors only, were indicted ; and



ARGUMENT OF MR. WICK HAM. 627

I trust this attempt, which is as novel as it is dangerous,
will never be sanctioned by this court ; and if I know my
own mind, I feel a better and more powerful motive than
professional duty, in endeavoring to prevent the estab-
lishment of their doctrine ; a most ardent desire to avert
from my country, my family, and myself, an evil so very
pernicious and repugnant to every principle of civ.il lib-
erty. I would unite with themselves with as much zeal
and energy as possible, in opposing it ; for if it were to
be sanctioned as a confirmed doctrine, it might be justly
said, that, however perfect in theory, our government
was a practical tyranny at the pleasure of those who
have the administration of the government in their
hands. It is on these grounds that I have argued this
cause ; not solely in defense of my client, but for the
sake of the community at large, and of posterity.

If the law be as I have stated, it is not very extraor-
dinary that the court should, in a point not immedi-
ately before it, have adopted the dicta of writers in
England as authority, and have applied them to this
country, without full consideration of all the points on
which the question turned.

I think, therefore, that it is proved that under the
constitution of the United States no man can be con-
victed of treason, who was not present when the overt
act charged in the indictment was committed.

Before I proceed further, I beg leave to remark that all
my arguments and illustrations are on abstract principles ;
that I wish to make no particular or individual allusions ;
and that I do not mean the smallest reflection on the
government : nor should I think myself justified to waste
the time of the court in making such observations. I
now proceed with my argument.

If, contrary to my firm conviction, I should be mistaken
on this point, I contend,

Secondly, That the offense, if it be punishable, should
be laid in the county and district where the act was done
by the accused which renders him guilty. If he be guilty,
it is by means of some act done by himself; and that act
must have locality. The prosecutors must prove the
fact as laid in their indictment. They have pledged
themselves to furnish proof in support of the charge



6a8 TRIAL OF AARON BURR.

therein specified. It being admitted that Mr. Burr
was not present when the act was done, we contend that
they should at once withdraw their indictment, as it does
not contain a specification that can be supported by the
evidence. If he have conspired to levy war against the
United States, and it be admitted that the war was
carried on by others in his absence, his offense can only
be punished by a special indictment charging the facts
as they existed.

To this will be objected the rule of law, that in treason
all are principals ; and that therefore, in construction of
law, the accessory was present aiding and abetting at the
same time and place where the overt act was committed.
But this objection arises from a misapplication of the
rule ; aiders and abettors after the fact are as much in
construction of law, principals, as those before the fact ;
yet there is no doubt that they must be tried, not in the
county where the war was levied, but where they did
the act, which makes them principal traitors by relation.
The rule of law is not founded on arbitrary principles, but
on maxims of immutable justice and reason. Though it
requires, as the best means of deterring people from the
commission of so henious a crime, that all who are in any
manner concerned in it should be equally punished, yet to
prevent oppression, it must be so construed as to be consis-
tent with another sacred rule of law, that the accused must
be informed of the precise nature of the charge against
him, in order that he may be prepared to defend himself.
The accusations, whether in an indictment or informa-
tion, should specially state the offense which is intended
to be proved against the accused. He can not other-
wise be prepared to defend himself. An offense, differ-
ent from that which is charged against him, and which
alone he can be expected to meet with his defense, is
never allowed to be given in evidence. This is the foun-
dation of all the niceties in criminal prosecutions; but
this objection is not founded on any critical nicety, but
on the broad merits of the case. If the indictment were
not to give notice of the precise nature of the accusation,
the party accused might be oppressed and destroyed.
Does this indictment inform us that it was meant to be
proven that Mr. Burr was not present when the overt act



ARGUMENT OF MR. WICKHAM. 629

was committed, but that he was guilty of treason, by being
connected with those who perpetrated the overt act ?
On the contrary, is it not presumable from the charge
in this indictment, that Mr. Burr himself committed the
act, and levied the war against the United States in per-
son ? What information does the indictment give of the
true nature of the charge meant to be supported ? For
what purpose did they comply with the formality required
by the act of congress of giving him a copy of the indict-
ment, but to inform him that they meant to prove that
he did the act on Blannerhasset's island in person? It
could admit of no other rational construction, than that
they intended to prove that he was there at the time.
Presuming this, we could not make this motion, till \ve
found by what proof they meant to support the indict-
ment. The accused, therefore, concludes that the charge
to be supported is, that he in person levied the war
against the United States at the place mentioned in the
indictment. In order to completely negative the idea of
his being charged as an accessory or aider to other people,
this indictment is drawn in a special and peculiar man-
ner ; not as indictments are generally formed. It charges
that he committed the act on Blannerhassett's Island, with
divers persons unknown. Neither Mr. Blannerhassett nor
Tyler, nor any other particular person is named, but he
is alleged to have done the act with persons unknown.

But it will be objected, that if guilty, he must know
whether the act is done or not, and be prepared to de-
fend himself; and that, if not guilty, no evidence can be
given that will fix the crime upon him ; and there is no
necessity of a specification. But this objection goes
directly to prove that there is no necessity for an indict-
ment at all. The court knew that an accusation might
be supported by perjury, and circumstances may create
a presumption of guilt which testimony would explain,
and which explanation would evince the innocence of the
accused. Besides, if the general doctrine contended for
on the other side be correct, a man may be guilty of
treason in being connected with a conspiracy to levy war,
and be really a stranger to the commission of the overt
act, which makes him a traitor by relation.
1 It will be said that levying war is always a public act,



630 TRIAL OF AARON BURR.

and therefore there is no difficulty in knowing what is
intended to be proved. Two answers may be given to
this objection : one is, that granting this to be true, the
accused is to be informed of the charge against him, not
by public rumors, but by the terms of the accusation
itself. The other applies to this particular case only.
The general doctrine always has been, that to prove the
charge of levying war, it must be shown that there* have
been overt acts ; and as the charge must correspond
with the proofs, the course has always been to state in
the indictment that the accused levied public war. In
every indictment for treason that I have met with, in the
State Trials or books of entries, the word " public," or
an equivalent word is inserted. The words, " public war,
did prepare, begin and levy," are in the indictment in the
following cases: 8 State Trials, p. 219, in the prosecution
against Damaree ; in that against Willis, and in that
against Purchase, p. 220 , in 9 State Trials, p. 543, in the
indictment against Townley, the words " did prepare,
order, wage and levy a public and cruel war " are used ;
and it is stated in the report, that that form of indictment
was made use of against all the rebels who were tried in
Surry, except one for a special reason.

The same words are used in the indictment against
Lord Kilmarnock, page 592 of the same volume, and
against Lords Cromarty and Balmerino, in page 593. It
is also so stated in Foster's Crown Law, 6. In Tremaine's
Pleas of the Crown, 2, the indictment for levying war is
in the same form, "traitorously did prepare, levy, and
ordain public war ; " and in this country the indictment
against John Fries has the same words, " did ordain,
prepare, and levy public war against the United States."

In the present instance, gentlemen do not say in the
indictment that there was a public war ; they only tell
us of an act that may be private or public. They do
not pretend to say that there were marching and coun-
ter-marching in military array ; that they had great
guns, &c., drums beating, &c.

In the present, the word public is omitted in both
counts of the indictment ; I do not suppose that it was
done studiously. Whether this were done by accident,
" currente calamo," or to make it more palatable to the



ARGUMENT OF MR. WICK HAM. 631

grand jury, need not be inquired. Whether this word
be considered as operative or be omitted in any indict-
ment in this country, I do not know, but it is used in
all the English precedents. I only use this argument
for the purpose of showing that there is no ground for
presuming knowledge of the fact, if indeed such a fact
ever existed. On principle, therefore, it is apparent
that this indictment does not warrant the introduction
of evidence to charge the accused with the acts of others
when he was present. Let me ask if a fiction that the
accused levied war be admitted, what necessity is there
for another fiction, that hewas at a place where he was not ?

The only argument on common-law principles that
can justly be urged, would go to prove that he could
not be tried anywhere.

In another branch of this argument I have had occa-
sion to show, that although it is laid down in the Eng-
lish books, that all are principals in treason, yet that this
rule only applies to the degree of punishment and de-
nomination of the offense ; that in the progress of the
prosecution, the same rules of law which apply to the
case of accessories in felony, are to be followed with re-
spect to aiders and abettors before the fact in treason ;
and that this principle has been stated by most of the
writers who have stated the general rule. I shall have
occasion in another part of my argument to explain this
principle more fully.

Now, it is clear that at common law an accessory to a
felony which was committed in a different county from
the one where the accessorial act was done, was not
punishable at all. At common law, the accessory could
not be arraigned till the principal were attained. If the
principal had never been indicted at all, had stood mute,
had challenged above thirty-five jurors peremptorily,
had claimed the benefit of clergy, had obtained a par-
don, or had died before attainder, the accessories, in any
of these cases, could not be arraigned. At common
law, therefore, if a felony were committed by A, and B
had counselled, procured, or commanded him to com-
mit it, and A had died, been pardoned, or stood mute,
&c., so that he had not been and could not be convicted.
B could not be tried at all. But a statute amended the



032 TRIAL OF AARON BURR.

law in this respect (See Hale's P. C. ch. 57, p. 62). But
the constitution of the United States has fixed the
place of trial, if indeed it can take place anywhere.

The eighth article of amendments to the constitution,
provides that " in all criminal prosecutions, the party
accused shall have a speedy and public trial, by an im-
partial jury of the state or district where the crime was
committed. This was meant to be a substantial provi-
sion, securing a trial by the vicinage ; and yet according
to the construction contended for by the gentlemen on
the other side, it is merely illusory, and a man who was
born in Virginia, and was never out of the limits of the
state, may, notwithstanding the constitutional provision
in his favor, be hurried off to New Hampshire, and
tried for an offense which he never did commit, and
which it is impossible he should have committed there.
At all events the rule must be uniform. Now, it must be
admitted that an aider or abettor after the fact must be
tried in the county and district where he committed the
offense : and what sufficient reason can be assigned for
a different rule in the case of an aider or abettor before
the fact?

No precedent can be produced in point on either side ;
because, except in the case of Sir Nicholas Throgmorton,
there is no instance to be found in the whole judicial
history of England (under any of its different forms of
government, being sometimes a despotism, sometimes a
limited monarchy, sometimes a republic), of an attempt
like the present, under any form of indictment ; and that
case, as far as it is an authority, is directly in our favor.
He was indicted for levying war against the queen ; and
the evidence was a connection with Sir Thomas Wiatt,
who raised an insurrection in Kent, and marched towards
London, but did not enter within the jurisdiction of the
city, which begins at Temple Bar. Yet Throgmorton
was tried within the jurisdiction of the city, and the
lord mayor presided at the trial, and he was acquitted.

It is true that it is laid down in East, an elementary
writer, who certainly is himself no authority, that there is
nothing to remark of difference between principals and
accomplices in respect of the indictment ; but so far as
we can judge from cases in any degree analogous, the



ARGUMENT OF MR. WICK HAM. 633

rule has been different. In Tremaine's Pleas of the Crown,



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 59 of 64)