Aaron Burr.

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

. (page 61 of 64)
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he is guilty, without producing the record of his conviction.

But this question also proves, that I was right on a
point I have already argued, that the indictment should
charge the offense specially and state that the accused
procured the act of treason, which was committed by an-
other, who should be named in the indictment.

The next law writer, in point of authority to Lord
Hale, and one certainly no otherwise inferior to him, than
in his having confined his disquisitions to particular
branches of criminal law, is Foster. He may be said to
be of equal authority with Hale, for in point of correct
judgment and understanding, none is superior to him.
In his chapter on accomplices, he states with explicit
approbation the opinion of Hale, and agrees with him in
every essential particular. The whole of the first section,
from p. 341 to 347, is apposite to the present question ;
and as his thoughts will not admit abridgment, I will
read the whole to the court :

" It is well known, that in the language of the law there
are no accessories in high treason ; all are principals.


Every instance of incitement, aid, or protection, which
in the case of felony will render a man an accessory be-
fore or after the fact, in the case of high treason, whether
it be treason at common law or by statute, will make him
a principal in treason ; unless the case be otherwise pro-
vided for by the statute creating the offense, or where
the special penning of the act leadeth to a different con-

" This rule hath long obtained and will not now be
controverted ; but I think it a matter of great import-
ance, that the rule be rightly understood : I mean with
those limitations which sound sense and common equity
require. For cases have frequently happened, where an
offender in the final issue of the prosecution maybe con-
sidered as a principal in treason ; and yet, during the in-
termediate steps towards his conviction, he ought, from a
principle of natural justice, to be considered merely as in
the nature of an accessory before or after the fact.

" For instance, A. adviseth B. to counterfeit the king's
coin or seals, cr indeed to commit any of the offenses
declared treason by the 25 Edw. 3, and furnisheth him
with means for that purpose (that species of treason
which in judgment of law falleth within the clause of
compassing the death of the king, queen, or prince al-
ways excepted). If B. inconsequence of this advice and
encouragement doth the fact, A. is a principal in the
treason ; for such advice and assistance in the case of
felony would have made him an accessory before the
fact ; and in high treason there are no accessories ; all are
principals. But if B. forbeareth to commit the fact to
which he is incited, A. can not be a traitor merely on ac-
count of this advice and encouragement, though his be-
havior hath been highly criminal ; for bare advice or in-
citement, how wicked soever, unless in the cases already
excepted, will not bring a man within the statute, where
no treason hath been committed in consequence of it.
So in the case of assistance or protection supposed to be
given to a traitor after the fact, the party knowingly af-
fording such protection, if the treason hath been in fact
committed, will be a principal in treason for the reasons
already mentioned. But if a person lying probably un-
der a suspicion of guilt, conscious of his own innocence,


should think it advisable to withdraw, and patiently to
wait the issue of things when the storm, which gathereth
round him, shall be blown over ; the party who received
and harbored him during his retreat can not be a traitor
for so doing, provided the conduct of his friend shall ap-
pear, upon examination, to have been blameless. Lord
Chief Justice Coke, who while he was in the service of the
crown seemeth to have had no bowels in state prosecu-
tions, when he layeth down and applieth the rule I have
mentioned, that all are principals in treason, plainly go-
eth upon a supposition, that the treason, presumed to
have been procured, was afterwards in fact committed,
or that the party supposed to have been knowingly re-
ceived and harbored had been actually guilty of hi^h
treason. It would have been absurd to the last degree,
to have gone upon any other supposition ; for it can not
be said with any sort of propriety, that a person procured
an offense to be committed, which in truth never was
committed ; or. that any person knowingly, viz., with a
full knowledge of a treason to have been committed
(that I take to be the legal sense of the term knowingly),
received and harbored the traitor, if such treason never
had been committed by him.

" There needeth very little to evince the truth of this
observation, more than to give a proper attention to the
rule already mentioned, that every act which in the case
of felony will render a man an accessory, will in the case
of treason make him a principal ; especially if we add to
it, according to Lord Hale, that nothing short of such
an act will. What circumstance, therefore, is necessary
to render a man an accessory in felony? Plainly this
above all others, that the felony charged upon the prin-
cipal hath been in fact committed by him. For which
reason no verdict can pass against the accessory, till the
truth of this single fact shall have been legally estab-
lished either by the conviction of the principal, if he
continueth amenable to justice, or by judgment of out-
lawry, if he abscondeth or flieth ; unless the accessory
chooseth to waive the benefit of the law, and to submit
to a trial.

" This rule is founded in good sense and natural jus-
l ; ce. The accessory is indeed a felon, but guilty of a


felony of a different kind from that of the principal.
It is, if I may use the expression, a derivative felony
connected with and arising out of that of the principal
and can not exist without it. Whether the same equit-
able rule is by parity of reason to be extended to treason-
able actions of a similar nature, I mean to such as are of
the derivative kind, and though in the language of the law
styled principal treasons, yet partaking of the nature of
mere accessorial offenses, cometh now to be considered.
This is the point of importance I hinted at in the outset
of this discourse. For if in prosecutions for treasons of
this kind the same rule of equity be observed as in cases
of felony, it will become a matter of very small impor-
tance to have been learning by what special technical
expression we are to describe the offense.

" Lord Chief-Justice Hale spendeth a whole chapter
on this point, which he intitleth, ' Concerning princi-
pals and Accessories in High Treason.' And though in
conformity to the established mode of speaking, .he
calleth every person who can any way be considered as
an accomplice in treason a principal in it ; yet when he
cometh to speak of the course and order to be observed
in the prosecution of the offenders, he considereth
those accomplices whose supposed guilt is connected
with and dependeth upon the real guilt of another in the
light of mere accessories ; and stateth a few cases by way
of illustration and proof. A person is committed to
prison for high treason, the jailer voluntarily suffereth
him to escape ; or a stranger knowing of such commit-
ment breaketh the prison and setteth him at large ; or
knowingly rescueth him after an arrest and before he is
brought to prison. In all these cases the jailer and
the person breaking prison or rescuing, whom he in a
passage I shall presently cite, calleth a kind of acces-
sories, are principals in treason, if the party imprisoned
were really a traitor. If he were not so, it will be no
treason in them ; and therefore they shall not be ar-
raigned till the principal offender be convicted ; for if
he be acquitted of the principal offense the others shall
be discharged.

" I have used the words knowing and knowingly, be-
cause I think that circumstance is a necessary ingredient


in the case. It is true it was resolved in Benstead'scase
cited here by the learned author, and at page 141, but I
think, not \vith entire approbation of the rule, that the
party breaking prison would have been guilty of treason
though he had not known that traitors were there. I
am by no means satisfied with this opinion. For the
single authority upon which this point is said by Hale
to have been so ruled, doth by no means warrant it.
The book expressly stateth it, that the party did know
that traitors were there. And Brooke who abridgeth
the case is expressed to the same purpose : sciant que
traitors fueront en ceo. And Coke citing the same case
layeth a great stress on this circumstance, that the party
knew that traitors were there, and conducted them out
of prison. I have upon another occasion taken some
notice of this short and imperfect report of Benstead's
case, and observed that the prosecution against him ap-
peareth to have been carried on with uncommon expe-
dition, not to say with some degree of precipitancy.
And probably the forcing of prison doors, as many were
forced during the tumult, was given in evidence on his
trial, among other outrages of the night, as overt acts
of levying war, the species of treason for which he stood

"The same rule of equity and natural justice the
learned judge in another place applieth to the case of
felonious escapes and rescues, and addeth, If the prin-
cipal offender be convicted and hath his clergy, ' I think
the jailer or rescuer shall never be put to answer the
escape or rescue, as the accessory where the principal
hath his clergy is thereby discharged, for the rescuer
and officer are a kind of accessories.' He calleth them
a kind of accessories, because there can be no felonious
escape or rescue where no felony had been previously
committed. But in strict legal propriety they are not
accessories to the original felony, for though a man
should be committed for many felonies, yet the escape
or rescue is considered as one single felony, and is so

" With regard to a person knowingly receiving and har-
boring a traitor, the learned judge in the place lately
cited argueth, that though he is in the eye of the law a


principal traitor and shall not be said to be an accessory,
yet thus much he partaketh of an accessory, his indict-
ment must be special of the receipt and not of the prin-
cipal treason. If he is indicted by a several indictment,
he shall not be tried till the principal be convicted ; if in
the same indictment with the principal, the jury must be
charged to inquire first of the principal offender, and if
they find him guilty, then of the receipt ; and if the
principal be not guilty, then to acquit both. For though
in the eye of the law they are both principals in
treason, yet in truth he (the receiver) is so far an ac-
cessory that he can not be guilty if the principal be inno-

" In tb;e case of Mrs. Lisle whose hard fate it was to
fall into the hands of perhaps the worst judge that ever
disgraced Westminster Hall, no regard was paid to this
doctrine. I would not be thought to mention this case
as an authority upon which a doubt can at this day be
possibly raised. I do it for the sake of what happened
afterwards, which I take to be an authority with me.
Her attainder was afterwards reversed in parliament ; and
the act reciteth among other hardships of her case, that
she was by an irregular and undue prosecution, indicted
for entertaining and concealing John Hicks a false trai-
tor knowing him to be such ; though the said Hicks was
not at the time of the trial attainted or convicted of any
such crime.

" The same learned author in other parts. of his work
argueth to the purpose for which I have already cited
him ; and applieth the same rule of equity to the case
of a person indicted for contriving, abetting, aiding, or
consenting to treason, which happeneth ne"ver to have
been carried into execution.

" But here we must distinguish, though the learned
judge speaking in general terms apposite to his present
purpose, doth not. For with regard to every instance
of incitement, consent, approbation, or previous abetment
in that species of treason which falleth under the branch
of the statute touching the compassing of the death of
the king, queen, or prince, every such treason is in its own
nature, independently of allother circumstances or events,
a complete overt act. of compassing ; though the fact or-


iginally in the contemplation of the parties should never
be effected nor so much as attempted. A. inciteth B. to
a treason of this kind ; B. in abhorrence of the crime,
and from a just sense of the duty which every man oweth
to his king and country, and which every good man in
the like circumstance will pay, maketh a discovery, by
means whereof A. is brought to justice. This incite-
ment on the part of A. is a complete overt act of treason
within this branch of the statute, and hath no sort of
connection with, or necessary dependence upon the fu-
ture behavior of B. And therefore whatever the learned
author hath advanced in general terms touching fruitless
ineffectual advice or incitement to treasonable practices,
must be understood of such treasons only as do not fall
within this branch of the statute."

In page 341, he states that an accomplice in treason,
though in the final issue he may be considered as a
principal, yet during the intermediate steps towards con-
viction, he ought to be considered merely as in the nature
of an accessory before or after the fact. In page 346 he
cites Lord Hale's opinion with approbation, except that
he properly distinguishes between treason, in compass-
ing the death of the king, and every other species of trea-
son ; as in the former the treason is complete in the very
act of conspiring. Now it will be admitted that a con-
spiracy to levy war is not in 'itself an act of treason.
Judge Foster then, as well as Lord Hale, is a direct au-
thority in favor of my position.

The same doctrine is laid down and illustrated by a
modern writer, who certainly is not of himself authority,
though he merits the name of an industrious and accu-
rate compiler, and who, from causes that might be con-
jectured, on all occasions, seems little inclined to relax
the severity of the law on the subject of treason.

Mr. East, in his treatise on Crown Law, chap. 2, 39,
p. 100, lays down with great clearness the same rule
of law, and expressly states, that proof of treason of
the agent can only be established by his conviction.
I shall cite what he saith though his words differ
but little from Hale and Foster. " But further,
with respect to the trial, the general rule that all are
principals in treason, must be understood with more lim-


itation. In regard to all acts of approbation, incitement,
advice, or procuring towards that species of treason,
which, in judgment of law, falls within the clause of com-
passing the king's death, or that of the queen or prince,
there is no doubt but that the party may be tried before
the person who acted upon such incitement ; because the
bare advising or encouraging to such actions is in itself
a complete overt act of compassing ; and it is totally im-
material whether the attempt were ever made or not.
The case of Somerville proves no more than this ; though
the rule is there laid down in general terms, that a per-
son aiding or procuring a treason may be tried before the
actor. But with regard to all other treasons within the
statute, 25 Edw. 3, if one advise or encourage another
to commit them, or furnish him means for that purpose,
in consequence whereof the fact is committed, the adviser
will indeed be a principal ; for such advice or assistance
would have made him an accessory before the fact in
felony : but if the other forbore to commit the act
thus advised, the adviser could not be a traitor merely on
account of his ineffectual advice and encouragement ;
though his conduct would be highly criminal : for it can
not be said that a person procured an offense which in
truth was never committed. In these cases therefore the
treason is of a derivative nature, and depends entirely
upon the question, whether the agent have or have not
been guilty of such treason ? the proof of which can only
be legally established by his conviction, if he continue
amenable to justice, or his attainder by outlawry, if he
abscond ; unless the accessory choose to waive the bene-
fit of the law, and submit to a trial.

" The same rule holds in case of assistance or protec-
tion to a traitor after the fact in all cases, or of permitting
or procuring his escape from custody. The party know-
ingly affording such protection or contributing to such
escape, if the treason have been in fact committed, will
be a principal traitor ; but the fact of the principal's guilt
must first be established, and notice of it must also ap-
pear to have been received by him who may be called
the accessory after. For it can not be said that a person
received or succored a traitor knowingly, that is, with a
knowledge of the treason's having been committed, when


in truth either no such treason was committed by him,
or the receiver was altogether ignorant of it."

It will be observed that he too considers the case of an
accomplice before and after the fact, as being governed in
this respect precisely by the same rules.

It need only be remarked, that he considers the case
of Somerville (Anderson, 109) as being at first view against
the position, and endeavors to explain it. Now the case
of Somerville being an exception from the general rule
and so statedj according to the maxim exceptio probat
regulam, is directly in favor of "this doctrine; as the de-
cision in that case proceeded solely on the ground of the
indictment being for treason in compassing the death of
the king, which being in itself a complete act of treason,
was distinguishable from the other species of that offense.
The words are " car le procurement est un compasse -
ment et imagination del mort le roy quel en soy mesme
est treason."

The prosecution is not against us as accessory to a
crime committed by another; the indictment informs us
that it is against ourselves not for an accessorial but a
principal treason committed by us in person ; and we
come to defend ourselves against that charge only.

The only doctrine in any of the books to the contrary,
is that of Sergeant Hawkins in book the 2d, ch, 27. sec. 2
p. 439, 440 (Leach's edition). " As to the first particular,
in what offenses there can be no accessories, but all must
be principals, if any way guilty, it seems to have been
always an uncontroverted maxim, that there can be no
accessories in high treason or trespass. Also it seems to
have been always agreed, that whatsoever will make a
man an accessory before in felony, will make him a prin
cipal in high treason and trespass, as battery, riot, rout,
forcible entry, and even in forgery and petit larceny.
And therefore wherever a man commands another to
commit a trespass, who afterwards commits it in pursu-
ance of such command, he seems by necessary conse-
quence to be as guilty of it as if he had done it himself.
From whence it follows, that being in judgment of law
a principal offender, he may be tried and found guilty
before any trial of the person who actually did the fact."
Now it is observable that this is only a general expres-


sion of the general rule, that he goes into no detail and
does not pretend to argue on the question. The doc-
trine is admitted to be correct so far as it applies to trea-
son in compassing the death of the king. The only differ-
ence between him and the authorities I have quoted, is
that he does not distinguish between this and the other
kinds of treason ; but he does not enter into the particu-
lar question whether derivative guilt can be proved other-
wise than by the conviction of the principal offender.

But if he were in direct opposition to them, he does
not stand on such high ground as they do ; the names of
Lord Hale and Justice Foster are certainly entitled to
much higher respect than his. Sergeant Hawkins, though
his work is a very valuable institute of criminal law, is
not considered a great constitutional lawyer.

He is not only opposed by Hale and Foster, but even
his own editor corrects this dictum in the later editions.
Mr. Leach, his very able and accurate Commentator, has
a note on this very passage, in which he corrects the
generality of the expression, and confines it to the case
of treason in compassing the death of the king. The
words of the note are " this rule requires distinction ; in
that species of treason touching the death of the king, &c.,
every accessorial agency is, independently and in its own
nature, a complete overt act of compassing, and renders
the offender guilty though the fact itself should never
be attempted. But in every other species of treason, the
accessorial offense is of a derivative kind ; some act must
be done, to which act the offender must be accessory, and
out of which his guilt must spring before he can be con-
verted by this rule of law into a principal offender. It
seems, therefore, that though in the event of the posecu-
tion such an offender may be considered as a principal, yet,
in his progress towards conviction, he ought, from a
principle of natural justice, to be considered merely as
in the nature of an accessory, before or after the fact ; and
if under such a consideration he were tried, before the
person who actually did the fact, the absurdity might
follow, that the accessorial agent may be convicted, and
the principal who did the act, and on whose guilt the
offense of the accessory must alone depend, may be ac-


The authorities therefore all correspond; and, supported
as they are by the strongest reasons drawn from the rules
of common sense and natural justice, place the position
I have contended for beyond the reach of controversy.

But it is objected that no adjudged case can be pro-
duced in support of it ; it is a sufficient answer, that
there has never been an attempt, except in the case of
Lady Lisle, to charge an accessory in treason before the
principal. The counsel on the other side must rely on
that decision of Jefferies, or they must abandon the pros-
ecution ; and even that case is conclusive in our favor,
for judge Jefferies's sentence was annulled, and the at-
tainder reversed by act of parliament, expressing strong
disapprobation of his conduct.

I can not quit this point without remarking, that all
the authorities go upon the supposition that the indict-
ment must be special ; a point I already have insisted
upon. It is barely possible that an objection will be made
which may be thought to deserve an answer, that " the
accomplice may waive the benefit of the law, and submit
to a trial ;" and that as the accused has done so in the
present instance, the objection now comes too late. A
reference to the authorities and a moment's consideration
will satisfy the court that there can be no force in this

The indictment gives us no information of the nature
of the charge ; it is against Mr. Burr himself, who had no
reason to doubt that it was meant to be proved, that he
in person committed the overt act of treason in levying
war as a principal in the first degree. The charge, that
. the act was committed by him in conjuction with per-
sons unknown, excludes the idea of a derivative treason
or a responsibility for the act of any particular individual
or set of men.

But if it were specially charged, and the persons,
whose acts the accused was to answer for, were named
in the indictment, with every necessary description of
time, place and circumstances, the party going to trial
according to the course of the court, without a special
prayer to be tried before the principal, and an express
waiver of his right entered on record, could not be con-
cluded from taking this exception. The words, " waive


the benefit of the law," mean an express renunciation of
a right, and none such certainly has been made in the
present instance.

But admit that all these points are against us, still
there must be some legal proof adduced of the guilt of
the principal who committed the act, before the prisoner

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 61 of 64)