Aaron Burr.

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

. (page 60 of 64)
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in the case of an indictment against Mary Speke, for aid-
ing the duke of Monmouth and others in the act of levy-
ing war against the king, the charge is special. As this
was in the 4th year of the reign of James II. and the act
is charged as having been committed in the county of
Somerset in the west of England, it must have been one
of the cases that came before the inhuman Jefferies ; and
it seems that even he deemed it necessary that the ac-
cused should at least be apprised of the nature of the
charge, by a special indictment charging the facts as they
existed.

It may be said that the accused, in that case, was in
the nature of an accessory after the fact ; but this can
not be supported, for she was an assister at or during the
fact, which is the same thing as an accessory before the
fact. How was she charged? The indictment is, that
she, knowing the said James Scott (the duke of Mon-
mouth) to be a false traitor, and that he, with many other
false traitors to the number of 4,000. had assembled and
collected and " had traitorously prepared, levied and raised
war, insurrection, and rebellion against the king, &c., for
the comforting, assisting, aiding, and supporting of the
said James Scott, &c., in the war, rebellion, and insurrec-
tion aforesaid, &c., did cause to be conveyed and carried
to the said James Scott, &c., cart loads of bread and of
cheese, &c." In a case of felony, such an accomplice
would be an accessory before the fact. There are in law
but two species of accessories one before, the other after.
A person aiding at the time when the act was done has
always in construction of law (except where present and
deemed a principal) been considered as an accessory be-
fore the fact.

In the case of Somerville, I Anderson's Reports, p. 106,
although the indictment is not set out at large, the form
is particularly described, and it appears to have been set-
tled on great consideration, "that aiders and the other
procurers of the treason should be indicted specially for
the procurement." Somerville was procured and per-
suaded by Edward Arden and his wife, to kill the queen.
It was on great consideration determined, that according
to law, if all three were indicted for " levying war," that



634 TRIAL OF AARON BljRR.

he should be charged with doing the act, and that they
should be indicted specially for procuring and aiding him,
that each ought to be charged according to the truth of
the case ; but that a general indictment was sufficient to
support the charge of compassing the death of the queen ;
and on great consideration they determined that aiders
and other procurers of treason should be indicted special-
ly for the procurement.

But if this form of indictment be insisted on as being
proper on this occasion, it must be under a general rule
applicable to all cases of aiding in the commission of an
overt act of treason,; and if in any case a departure from
the rule for the purposes of justice would be proper, it
would be such a one as the present ; none requires speci-
fication more.

Now among the treasons created by act of parliament,
which are collected in I Hale's Pleas of the Crown, ch.
24, p. 280, is one created by the 28 Hen. 8, ch. 18, by
which " marrying any of the king's children or reputed
children, or his sisters, or aunts of the father's part, or
the children of the king's brethren, or sisters, without
the king's license under his great seal, or deflowering of
any of them, is enacted to be treason. Now we may
suppose a very probable circumstance, that a female ac-
complice in one of those treasons, for instance one of the
maids of honor, should be prosecuted for aiding and
abetting the principal traitor, would she be indicted by
her name, as a female, with the addition of spinster, for
marrying the king's aunt, or deflowering his daughter?
or would she be charged specially with aiding or abetting
the male person who did the act ? By 33 Hen. 8, I Hale,
281, it is made treason in any woman the king shall
intend to marry, thinking her to be a true maid, to marry
him if she be not so. Now it is a very possible case that
the paramour of such a woman (I will suppose her to be
one of the maids of honor, arid him to be a lord of the
bedchamber) should aid her in imposing on the king.
She is tried, found guilty and executed. How is he to
be so charged ? would he be indicted by the name of A.
B. gentleman, or by his title of lord, for marrying the
king, not being an unspotted virgin, or to use the language
of the act, a pure and clean maid? This may seem to



ARGUMENT OF MR. WICKHAM. 635

be treating the subject with more levity than I could
wish to do ; but the argument directly applies ; it exposes
the fallacy of gentlemen's arguments. It may indeed be
said that, in these instances, there would be a physical
impossibility in the act, as charged in the indictment,
and that therefore in such a case it ought to be charged
so as to correspond with the fact ; but this is an admis-
sion that it may be charged, and if in any case, it surely
ought in such a one as the present ; for it is as much a
physical impossibility that Mr. Burr should be at Blan-
nerhassett's island and in Kentucky (places several hun-
dred miles distant) at the same time, as that an individ-
ual should be at the same time a man and a woman.

A little attention to principles must satisfy us, that
levying war may consist of a great variety of acts ; yet it
is one entire/ offense. The expression in the act is
" levying war," in the indictment " levying a public war."
Now a war may consist of a single act of hostility, or a
great variety of acts. If a man were concerned in the re-
bellion of 1715 and in that of 1745, though there is a com-
plete space of thirty years between them, he might be
indicted for both, because they are separate rebellions
and insurrections; but if he were concerned in that of
1745 only, he could not be charged with the battles of
Preston Pans, Culloden, and taking of Edinburgh, Man-
chester, Carlisle, &c. in separate indictments in succes-
sion : for if so, there might be a thousand or more trials,
though there was but one rebellion ; it might be divisi-
ble ad infinitum.

After charging generally that war was levied, every
indictment charges certain overt acts, and these overt
acts are laid for the yiformation of the party. The pro-
secutor may lay as many overt acts as he thinks proper,
and select which he chooses ; but they must be all laid
at once in the same indictment. They are the charge
which, if proved by evidence, supports the indictment.
If the charge be for the information of the party, is he
not excused if it be not made good ? Was it ever heard
that a person might be tried over and over again for trea-
son in the same rebellion ? Has it ever been pretended,
that, when a person came prepared to contest particular
facts, other facts were to be proved against him ? For



636 TRIAL OF AARON BURR.

example, a person is charged with a succession of facts
done at Edinburgh, Falkirk, Preston Pans, Carlisle, &c. ;
he comes prepared to prove an "alibi ; " but on the trial
finds instead of these facts being intended to be
proved, that the counsel for the prosecution introduce
evidence of facts committed at places totally different
from those in the indictment, and not committed by
himself, but by others when he was not present ; would
not this evidence be a surprise upon him ? would it be
admitted? So in treason for compassing the king's
death, is there a single instance in which an overt act,
not charged in the indictment, and distinct from that
which is charged, has been attempted to be proved on
the prisoner? There is not. An overt act not charged
may be proved when it tends to prove that which is
charged ; but then that is never admitted till after the
overt act charged is proved.

They charge Mr. Burr with being at Blannerhassett's
island, when he was two or three hundred miles off in
Kentucky, and instead of proving it, they offer to prove
that the act was done by others. If, however, I be mis-
taken in this point, and it were intented to make us re-
ponsible for the acts of others, the indictment should have
stated the charge generally; and their names should be
mentioned in the indictment ; and we should be charged
with doing the act jointly with them. In the present
case this is not only omitted, but the prosecutor by the
very terms of the indictment negatives the charge of aid-
ing others, and thus becoming responsible for their acts.
It is expressly stated that we levied war with certain
persons unknown. This is contrary to the fact as as-
sumed by themselves : for the fact that known persons
have committed an overt act, and have done so in con-
nection with us, is the sole ground on which it is pre-
tended that the indictment can be maintained.

In answering this objection, the counsel for the pros-
ecution may shelter themselves under the form of law
and say that precedents are in their favor ; now a re
ference to the precedents will satisfy the court, that
nothing is more common than to charge persons with
committing treason with others, who are not indicted
themselves.



ARGUMENT OF MR. WICKHAM. 637

In Tremain's Pleas of the Crown, there are two indict-
ments for conspiracy to levy war, with one who is not a
party to the indictment : the first in pp. 279, 280, the case
of the King v. Gerard, who is indicted and charged with
conspiring and imagining the death of the king "with
divers other false rebels and traitors to the jurors un-
known ;" and also with " falsely, wickedly and traitor-
ously with James duke of Monmouth and with divers
other false traitors to the jurors aforesaid unknown, as-
sembling, &c., to levy and make war and rebellion against
the king, Sec.," and in page 307 in the indictment against
John Hambden, it is charged that he " did traitorously,
with diver other false rebels and traitors to the j.urors
aforesaid unknown, conspire, compass, imagine, &c./' and
that " he traitorously with James late duke of Monmouth
and divers others false traitors, to the jurors aforesaid
unknown, did assemble, meet, consult and agree to raise
and procure divers great sums of money, and great num-
bers of armed men traitorously to levy and make war and
rebellion against the king," &c. Here is an express speci-
fication of his having associated in the treason with the
duke of Monmouth and others unknown. There are also
a number of cases in the State Trials, in which the ac-
cused are charged with a design to levy war with persons
who are named, though those persons are not parties to
the indictment ; among a number of others I could refer
the court to the case of Doctor Hewitt, 2 S. T. p. 281, and
the case of John Morant, Esq., ibid. p. 291, and 4 S. T. p.
132, the case of Henry Cornish, who was indicted for
that " traitorously knowing James the late duke of Mon-
mouth, William Russel, Esq., and Thomas Armstrong,
knight, and divers other traitors, traitorously to have
conspired the death of the king, he, the said Henry Cor-
nish, as a false traitor, did traitorously promise to the said
other traitors to be aiding and assisting in the treason
aforesaid. In all these cases, in laying the overt act
charged in the indictment, the connection of the accused
with certain other individuals named is expressly stated.

It is a rule of law, that a charge must be proved as laid.
It would, therefore, have been inadmissible to give in
evidence a connection with other persons than those
named in the indictment, and not with them.



638 TRIAL OF AARON BURR.

Those who framed these indictments must, therefore,
have thought it necessary to shape their charge in this
form, in order to make it correspond with the proofs ;
and what case can be conceived, in Avhich a specification
would be more necessary than the one before the court,
when it is admitted that the accused was not present ?
when an attempt is made to charge him solely on the
ground of a connection with others, can it be right to
make him liable for their acts, when they are not even
named in the indictment ? Nay more, when it is
expressly declared, that he did the act, and the others,
who aided him in doing it, were unknown ? Suppose
there were three distinct insurrections ; he is charged with
levying war generally, not a private or secret, but a pub-
lic war, could Mr. Burr tell which of the three insurrec-
tions he was intended to be charged with ? There is no
specification, and he can not tell to which of several acts
of war the charge is to be applied. Suppose an assem-
blage in London to pull down and destroy conventicles,
meeting-houses, or bawdy-houses, and a person, thought
to be connected with those who composed the assemblage,
but who was not present, should be indicted for " levying
war," as in the case now before the court, without nam-
ing any of the persons who were present : he would not
know how to defend himself against this constructive
treason : he could not tell from the indictment for
what he was indicted, whether for pulling down and
destroying bawdy-houses or conventicles, or* in con-
nection with whom it was intended to charge him ;
but had he been informed by the indictment what
was to be proved against him, he might be able to prove
an alibi, or to establish his innocence satisfactorily ; but
a prosecution in such a case, without a specification such
as I contend for, has never been attempted.

If it be once established that special indictments are
necessary by the law of England, the argument is con-
clusive to show that no indictment can be sustained
under the constitution, for such an act as is charged
against Mr. Burr. Treason consists in levying war only ;
but he is not charged (in fact, though he is by the indict-
ment) with levying the war personally himself, but with
being connected with others who did levy it. Can an



ARGUMENT OF MR. WICKHAM. 639

accessory after the fact, or a receiver of a traitor, be in.
dieted under the constitution ? If he can not, no mere
can the accomplice before the fact. If a special charge
be necessary on an indictment of an accessory after the
fact, it is equally necessary to charge the accessory before
the fact specially ; and then the indictment does not
conform to the constitution, which requires that the war
should be levied by the accused. Treason consists ir,
" levying war," not in advising it, or receiving him who
has levied it. If you allege an act as done by others, do
you not charge that it is done by the others ? In Ensv
land a special charge, particularly stating the act of pro-
curement or comforting, is proper; but here it is forbid-
den by the constitution, treason being expressly limited
to the act of war, not of advising or receiving. But the
spirit and meaning of the constitution are not to be
evaded by charging generally what ought, to be charged
specially. I submit, therefore, whether upon principle
or practice, any evidence can be given of the acts of third
persons, not named in the indictment, when it is admitted
that the accused himself was absent.

Although I trust that some, if not all the points that
I have contended for, are decidedly in favor of the accused,
there is one more, which, as it rests only on the plainest
principles of reason and justice, but on a concurrence of
all the authorities on the subject, is too clear to admit
of a doubt ; and were the case of less importance, I
should have deemed it unnecessary to submit any other
to the court. I lay it down as a rule that can not be con-
troverted, that even if aiders and abettors in treason be
considered as principals, yet that their guilt is derivative
and can only be established by legal proof, that the per-
son whose acts they are answerable for, have committed
treason ; that the only legal proof is a record of the con-
viction of those persons; that without such proof, no tes-
timony connecting an aider or abettor with those persons
is admissible ; and of course if there be no such record,
the prosecutors fail in their case, and can not proceed with
their testimony.

In order, therefore, to prove the guilt of an aider or
abettor, the person from whom his guilt is derived must
be shown to be guilty by the highest evidence.



c TRIAL OF AARON BURR.

But I would not narrow the grounds of my client's
defense, nor do I mean to admit that others who are
alleged to have been connected with him in the imputed
conspiracy have been guilty, when I insist that his guilt,
if it exist, is derived from theirs. I deny that any of
them are guilty. This is an act of justice not only
to him, but to them. Mr. Blannerhassett, Mr. Tyler,
and Mr. Smith, as individuals, are deservedly re-
spected ; but they have been held up throughout the
United States and in this court as arch traitors. I mean
no reflection on the gentlemen on the other side, but
judging them on general principles, from the zeal and
perseverance which they have already manifested, they
will continue strenuously to contend that those injurious
reports are well founded, and that their guilt is unques-
tionable. Mr. Burr, therefore, considers it not an act of
justice to himself only, but a sacred obligation respecting
them, that this charge should be inquired into ; and, if
not established, that those unfounded calumnies should
be refuted. Unless the record of the condemnation of
some persons who are to be proved to be traitors be pro-
duced, and the connection between them and Mr. Burr
be proved, no other proof is admissible, or can be received.
That this is the rule in all felonies is beyond all question ;
the accessory never can be convicted until the principal
be found guilty ; and a record of the conviction of the
principal must be produced on the trial of the accessory.
But perhaps it will be observed by. the gentlemen on
the other side, that in treason there is no accessory, and
all are principals. That rule is general, and applies to
accessories after as well as to accessories before the fact.
I contend that with respect to accessories after the fact,
it has always been adjudged and considered as settled law,
except by Chancellor Jefferies, that in order to fix guilt on
such accessory, the principal who did the act must be
convicted. Lady Lisle's attainder was reversed by act
of parliament, because the person whom she had received
had not been convicted. She was a lady of rank and
fortune, and tried, convicted, and executed (as before
stated) for entertaining, concealing, and comforting John
Hicks, knowing him to be a false traitor. It was thought
necessary to reverse her attainder by act of parliament.



ARGUMENT OF MR, WICKHAM. 641

The act calls her trial and condemnation, " an irregular
and undue prosecution," and declares that the " verdict
was injuriously extorted by the violence, menaces, and
other illegal practices of Judge Jefferies; " but it partic-
ularly mentions, as a principal ground of the reversal,
" that the said John Hicks (the person whom she had
entertained) was not, at the trial of the said Alicia Lisle,
attainted or convicted of any such crime." Unless it had
been thought that the law was settled, .that an accessory
could not be prosecuted till the principal had been con-
victed, and that she had been deprived of the benefit of
this law, by the violence and^cruelty of Jefferies, the act
of parliament would not have been passed.

In several other prosecutions before Jefferies, the con-
victions were produced. On the trial of William Ring,
an accessory after the fact, for receiving, and comforting,
and providing meat, drink, and lodging for Joseph Kel-
loway and Henry Lawrence, who were in the rebellion
in the Duke of Monmouth's army, the first evidence
produced was the record of the conviction of Kelloway
and Lawrence, 4 St. Trials, 130-134; and on the trial
of John Fernley for harboring and concealing James
Burton who had been outlawed for treason, and had been
in Monmouth's rebellion, the first evidence produced
against him was the record of Burton's outlawry, Id. p.
137. Now as aiders after the fact are as much traitors
as those before, the same rule applies to accessories be-
fore, w-ith equal force. They stand on precisely the
same ground ; the guilt of the accused is consequential
in both cases. The difference of time does not affect
the question, because the act of procurement or advice
is never heard of, if the act of treason be not committed ;
so that the procurer or accessory before is a traitor by
relation, as much as a receiver after. In this point of
view there is no distinction between them ; so that the
guilt of the procurer or accessory is a consequence of
the act ; and if the act be not done, he is not guilty.

But it is unnecessary to rely on general reasoning
however conclusive ; express authorities on the subject
may be produced.

Lord Hale, in the first volume of his Pleas of the
Crown, states, that " as to the course of proceeding, it
i. 41



642 TRIAL OF AARON BURR.

hath been, and indeed ought to be the course, that
those who did actually commit the very fact of treason
should be first tried, before those that are principals in
the second degree, because otherwise this inconvenience
might follow, viz., that the principals in the second de-
gree might be convicted, and yet the principals in the
first degree may be acquitted, which would be absurd."
Apply this doctrine to the present case : Mr. Burr is
charged with being an aider before the fact, to Blanner-
hassett, who being charged with " having actually com-
mitted the very fact," must be first tried. His guilt is
derivative ; and you must prove that the act is done by
the conviction of the principal, before you are let into
evidence against the accessory. In confirmation of this
doctrine he refers to Anderson's Reports, p. 109. Som-
erville's or Arden's case. Arden and wife, and Somer-
ville were (as before stated) indicted for treason, in com-
passing the death of the queen ; the two former as pro-
curing or advising the act to be done, and the latter as
the actor. It was ruled on great consideration as a
general principle, " that the jury must first be charged
to inquire of the principal offender, and if they found
him guilty, then to inquire of the receipt ; and if the
principal be not guilty then to acquit both ; that this
was the law where the offense charged was 'levying
war;' but where it was for compassing the queen's
death, that there was no need that he who undertook to
do the act should be first tried ; for the movers and pro-
curers are guilty of compassing the 'death, though he
that was procured should never assent thereto."

In the 2d volume, p. 223, the learned author states,
that " if A be indicted of high treason, and B be indicted
for receiving or comforting him, or procuring or abetting
(but not present), here it is true that they are all princi-
pals; but inasmuch as B, in case of a felony, would have
been but accessory, and it is possible that A may be ac-
quitted of the fact, it seems to me that B shall not be
put to answer of the receit or procurement till A be out-
lawed, or at least jointly with A, and in this case the
same jury may be charged with both, and their charge
shall be first to inquire whether A were guilty, and if not,
then to acquit both A and B ; and if A be found guilty,



ARGUMENT OF MR. WICKHAM. 643

then that they inquire of B. And in Somerville's case
(26 Eliz.), mentioned before, the inquiry was first of the
principal offender, and then of the receiver or procurer,
to avoid that inconvenience and aweroust, that might
happen in case B were first convicted of the procurement
and receit, and yet possibly A might be acquitted of the
principal fact.

It can not be contended that by indicting B, as acces-
sory or procurer singly, the prosecutor can evade this
rule of law, which is founded on the soundest principles
of moral right. He can not allege that the defendant has
waived it, because the indictment has given him no notice
that he was to be charged as principal in the second de-
gree ; there being no reference to any other individual
named in the indictment.

If, then, Lord Hale be an authority on this point, he is
conclusive. He says that aiders and procurers before the
act, and receivers after, never can be guilty if the prin-
cipal be innocent. In order to prove that the accessory
is guilty, you must have the highest evidence, and that
is not conclusive, for he may controvert the guilt of the
principal; but the prosecutor is not at liberty to say that



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 60 of 64)