Aaron Burr.

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

. (page 62 of 64)
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can be made a traitor by relation. Admit that a person
may be generally charged as present, who was absent ;
that the record of the conviction of the principal is un-
necessary ; and that they are at liberty to prove the act
of the principal by mere parol testimony ; yet before Mr.
Burr can be connected with Blannerhassett, they must
prove an overt act to have been committed by Blanner-
hassett, and of this the court and not the jury must
judge ; that is, the court must judge what in law con-
stitutes an overt act of treason, though the jury only can
decide whether such an overt act have been in truth
committed or not. Admitting the correctness of the
statement of the only witness whose testimony bears
upon this point, Allbright (who is at one time in jest, at
another in earnest), yet still there is nothing like the sem-
blance of an act of war. Admitting further, for the sake
of argument, that what he states amounts to proof of an
overt act of war, yet still he is a solitary witness ; and
as the law requires two witnesses to prove the same
overt act of war, it is impossible to connect us with him.
Every inference, that can be rationally drawn from the
facts proved by this single witness, maybe drawn by the
jury; but this can not supersede the necessity of com-
plying with the constitutional requisition of proving the
overt act by two witnesses.

According to the universal doctrine of all authors on
this subject, the overt act which is to be thus proved,
must be an act of public hostility (not a mere private
act), and must be particularly set forth in the indictment.
The principle is maintained by writers and confirmed by
the form of the indictments.

I East's Crown Law, p. 116: "In every indictment
for high treason upon the stat. 25 Ed. 3, for compassing
the death of the king, or for levying war, or adhering to
his enemies, the particular species of treason must be
charged in the very terms of the statute, being a declara-



I

ARGUMENT OF MR. WICKHAM. 655

tory law, as the substantial offense, and then some overt
act must be laid, as the means made use of to effectuate
the traitorous purpose." " The overt acts so laid are in
truth the charge to which the prisoner must apply his
defense. And therefore it is in no case sufficient to al-
lege, that the prisoner compassed the king's death, or
that he levied war against him, or adhered to his ene-
mies ; for upon a charge so general and indefinite, he
can not know what acts he is to defend." In page 121,
he states, however, " that the whole detail of the evidence
need not be set forth." " The rule, prescribed by the
statute of William, ' that no evidence shall be admitted
or given of an overt act that is not expressly laid in the
indictment," is in truth no more the common law itself
directs generally. For in no case is a prisoner bound to
answer unprepared for every action of his life, but only
to that which is the subject of the indictment against
him." The true sense of the clause is, " that no overt
act amounting to a distinct independent charge, though
falling under the same head of treason, shall be admitted
in evidence, unless it be expressly laid in the indictment ;
but an overt act may be given in evidence, though it be
not expressly laid or not well laid in the indictment, if
it amount to direct proof of any overt act, which is well
laid. Thus in the case of Rockwood.(p. 122), who was
indicted for compassing King William's death, two of the
overt acts charged were, that he and others met and con-
sulted upon the proper means for waylaying the king,
and attacking him in his coach ; and also that they
agreed to provide forty men for that purpose. Upon
this indictment the counsel for the crown were allowed
to give in evidence a list of the names of a small party
who were to join in the attempt, of which the prisoner
was to have the command, with his own name at the
head of the list as their commander ; for though not
charged in the indictment, yet it amounted to a direct
proof of the overt acts laid ,viz., the meeting and consult-
ing together how to kill the king, and then agreeing to
provide forty men for the purpose." The same doctrine
is laid down in p. 123, but in that page it is stated that
" if the overt acts, offered in evidence and not laid in the
indictment, be no direct proof of any of the overt acts



656 TRIAL OF AARON BURR.

charged, but merely go to strengthen the evidence or
suspicion of some of those overt acts by a collateral cir-
cumstance, such evidence can not be admitted, notwith-
standing the opinion of Lord Hale to the contrary, as
in the case of Captain Vaughan, before cited." And Fos-
ter, in p. 194, states the same doctrine, that the overt act
must be laid in the indictment : " In every indictment
for this species of treason, and indeed for levying war,
or adhering to the king's enemies, an overt act must be
alleged and proved. For the overt act is the charge to
which the prisoner must apply his d'efense, and if divers
overt acts be laid and but one proved, it will be suffi-
cient." The object of charging the overt act is to give
the accused full notice to come prepared to answer it.

Here Mr. Wickham observed, that as the usual hour of
adjournment was now past, he could not finish his argu-
ment to-day, but wished to be indulged with permission
to resume it to-morrow, which was granted ; and the
court adjourned.

FRIDAY, AUGUST 2ist, 1807.

As soon as the court met, Mr. Wickham observed that
he would by no means wish to take up the time of the
court unnecessarily ; but that it might not be improper
briefly to advert to some parts of his argument yester-
day. He then proceeded : The court will recollect the
several points which I endeavored to established yester-
day. The first was founded on the absence of the accused
from the scene of action, at the time of committing the
act charged in the indictment ; and the second on the
necessity of proving the act as laid. The third point
was, that the guilt of the accused, if it exist at all, is in
its nature only derivative, and can not be proved without
first producing the record of the conviction of the princi-
pal.

Hawkins, in his Pleas of the Crown, ch. 29, 2, p. 440,
as I stated before, is the only authority which says that
the accessory may be tried before the principal ; and his
commentator Leach denies it, in his note subjoined.

The rules of law require that the prosecutor, before
he can convict the accessory, must produce on his trial



ARGUMENT OF MR. WICK HAM. 657

the record of the conviction of the principal. Foster
supposes that the production of that record is sufficient
to put the accused on his defense. But he admits that
it is no more. Hawkins says that such evidence is only i
introductory to other testimony, which is necessary to'
connect him with the principal.

The court will observe that Foster lays down the doc-
trine with great clearness, that the conviction of the
principal is necessary to be produced in order to put him
on his defense ; but that the accessory may prove that
the principal is innocent, notwithstanding the production
of the record of such conviction. In pp. 364-365, he
says that " the accessory may be brought to justice, not-
withstanding the principal has been admitted to the clergy
or pardoned ; and very proper was this provision. For
in the scale of sound sense and substantial justice, the
only questions in which the accessory can have any con-
cern, in common with the principal, are, whether the fel-
ony were committed, and committed by the principal.
These facts the conviction of the principal hath estab-
lished with certainty, at least sufficient to put the acces-
sory to his answer. And therefore in whatever manner
the principal may have been treated after his conviction,
seemeth to me to be a matter perfectly foreign to the
question, whether or when the accessory shall be brought
upon his trial." Sec. 3, " At a conference among the
judges upon the case of M'Daniel and others before re-
ported, a general question was moved how far, and in
\vh.it cases the accessory may avail himself of the insuffi-
ciency of the evidence in point of fact, or of the incom-
petency of witnesses in point of law, produced against
the principal, and in what cases he may be let in to show
that the facts charged and proved against the principal,
do not in judgment of law amount to felony. There was
in that case no occasion to enter far into these questions
since the facts, upon which the point of law then under
consideration must necessarily turn, were all found by
the special verdict." P. 365, '' If the principal and ac-
cessory are joined in one indictment and tried together,
which I conceive to be the most eligible course, where
both are answerable, there is no room to doubt whether
the accessory may not enter into the full defense of the

L 42



658 TRIAL OF AARON BURR

principal, and avail himself of every matter of fact, and
every point of law tending to his acquittal. For the acces-
sory is in this case to be considered as particeps in lite,
and this sort of defense necessarily and directly tendeth
to his own acquittal. When the accessory is brought to
his trial, after the conviction of the principal, it is not
necessary to enter into a detail of the evidence on which
the conviction was founded ; nor doth the indictment
aver that the principal was in fact guilty. It is sufficient
if it recitieth with proper certainty the record of the con-
viction. This is evidence against the accessory sufficient
to put him upon his defense. For it is founded on a
legal presumption, that everything in the former pro-
ceeding was rightly and properly transacted. But a pre-
sumption of this kind must, I conceive, give way to facts
manifestly and clearly proved. As against the accessory
the conviction of the principal will not be conclusive: it
is, as to him, res inter alias acta. And therefore if it shall
come out in evidence, upon the trial of the accessory, as
it sometimes hath, and frequently may, that the offense
of which the principal was convicted did not amount to
felony in him, or not to that species of felony with which
he was charged, the accessory may avail himself of this,
and ought to be acquitted." Hawkins, p. 456, b. 2, c. 29,
47, says: " As to the fourth point, whether the princi-
pal and accessory may be both tried by the same inquest,
and in what manner they are to be tried. It seems to be
settled at this day, that if the principal and accessory
appear together and the principal plead the general issue,
the accessory shall be put to plead also ; and that if he
likewise plead the general issue, both may be tried by
one inquest ; but that the principal must be first con-
victed ; and that the jury shall be charged, that if they
find the principal not guilty, they shall find the ac-
cessory not guilty. But it seems agreed that if the prin-
cipal plead a plea in bar, or to the writ, the accessory
shall not be driven to answer, till such plea be deter-
mined." In the note subjoined, the foregoing authority
of Foster and Smith's case, O. B. 1784, p. 69, are referred
to ; and the sentiment repeated that the production of
the record of conviction of the principal, is sufficient to
put the accessory upon his defense.



ARGUMENT OF MR. WICKHAM. 659

So that it is perfectly clear, from 'all the authorities,
that the first step is to produce the record of the con-
viction of the principal to put the accessory on his de-
fense, though it is not conclusive against him.

I hope to be excused for having taken up the time of
the court so long on this part of the subject. I will now
proceed to make some remarks on another point.

If it be possible that I am wrong in this last point, as well
as in the several other positions I have endeavored to
support; if an absentee can be convicted on this general
form of indictment, and if the record of the conviction of
the principal be not necessary, and parol testimony be
admissible to 'prove the acts of the accused, yet still I
contend, that before Mr. Burr can be put on his defense
or testimony exhibited to show his derivative guilt, there
must be some evidence to prove to the court that Blan-
nerhassett, the principal offender, is guilty. If there be
no evidence against Blannerhassett, none can be ad-
mitted against Mr. Burr. Let us suppose that there
was no proof whatever of the guilt of Blannerhassett,
would it be competent to them to say that he was guilty,
and to connect Mr. Burr with him ? to say that his
guilt was derivative, when there was no original source
from which it could be derived ? I presume that the
gentlemen would give up the point if there were no such
proof. It would be the same thing as if there were no
evidence at all against the accused, for it would have no
relation to the charge exhibited against him.

If there were evidence of a merely friendly meeting, it
would be the same as if there were no assemblage. If
they were to give evidence that Blannerhassett and
some of those with him were in possession of arms,
as people in this country usually are, it would not be
sufficient of itself to prove that the meeting was mil-
itary.

Arms are not necessarily military weapons. Rifles,
shot guns, and fowling pieces are used commonly by the
people of this country in hunting and for domestic pur-
poses ; they are generally in the habit of pursuing game.
In the upper country every man has a gun ; a majority
of the people have guns everywhere, for peaceful pur-
poses. Rifles and shot guns are no more evidence of



660 TRIAL OF AARON BURR.

military weapons then pistols or dirks used for personal
defense, or common fowling pieces kept for the amuse-
ment of taking game. It is lawful for every man in this
country to keep such weapons. In England indeed
every man is not qualified to keep a gun ; but even to
those who have not that privilege the possession of dirks
and pistols is not unlawful, Surely their possession at
that island of such arms as every man in this country is
legally authorized to keep, and which most people do
keep, can be no more evidence of a military project, or
an intention to subvert the government, then if they had
not been there at all. What is the rule to distinguish in
such cases? There must be such evidence of a hostile
assemblage proved to the court, as if true in point of
fact- would constitute a treasonable assemblage.

But it may be said on the other side, that if the court
will undertake to judge in this case, it will invade the
province of the jury. Sir, it will not. It is the right of
the jury to decide on the weight of the evidence. They are
to find facts. They may find a special verdict, and if all
facts be inferred by them that can be properly inferred
from the evidence, and are found by them, the court can
decide on their finding. If they do not find facts to
that extent, the court is bound to infer whatever may be
legally inferred from their finding. The overt act must
be particularly set forth in the indictment. It is clear
on principle, and supported by a number of authorities,
as the case of Deacon and several others, which have
been referred to, that after the overt act laid is once
proved, evidence of other overt acts not laid, may be ad-
duced if they be direct evidence of that which is charged ;
but it is a perliminary and essential point, that two wit-
nesses must prove the overt act.

The principle for which I am contending is the same
in civil cases. If A make a contract with C by B, be-
fore A can enforce his contract against C, or give proof
of it as made by B, he must prove that B was in fact his
agent ; and then he can go on and prove the agreement,
but not before the agency, without proving which, it
would be irrelevant and improper to prove the agree- x
ment. The court would require the production of this
previous proof of his agency ; yet the court does not de-



ARGUMENT OF MR. WICKHAM. 661

cide on the weight of such evidence. This principle is
further illustrated by the right, which the party pos-
sesses, to require a special verdict, and by his right also
to demur to the evidence, and draw the case from the
jury to the court. But he subjects himself to this con-
dition, that every inference which the jury might draw,
the court must draw. I do not mean to say that the
jury may wander into the field of conjecture, and that
the court may do so also, when the facts are thus re-
ferred to it ; but that of every inference which the jury
might draw according to sound reason and law, the court
must necessarily judge, and give the party the full bene-
fit of it.

Here I may properly refer to the same authority in Haw-
kins, p. 456, in the note of his commentator, where after
stating the necessity of producing against the accessory
the record of the conviction of the principal, he adds,
" but it seems that some additional evidence is necessary
for that purpose, in order to apply and connect it with
the case of a prisoner indicted as accessory ; for a bare
unqualified record can only be evidence against those
who are parties to it."

I come now to a most important inquiry, what con-
stitues an overt act of "levying war;" which must be
proved before the guilt of treason can attach to the prin-
cipal.

The CHIEF JUSTICE asked him if any adjudged case
could be produced, where the court was called upon to
decide, and did decide, that the evidence submitted to
the jury did or did not amount to proof of the overt act.
Mr. Hay said that he never knew the attempt made
but once, before Judge Patterson, which was unsuc-
cessful.

Mr. Wickham. The overt acts must be such as if
true that is, in reality committed constitute treason. I
do not say that the court will undertake entirely to per-
form what is the province of the jury, and proceed to in-
quire whether an overt act have been proved to have been
committed, but that it is the right and duty of the court to
instruct the jury what amounts in law to an overt act of
levying war, &c. The counsel for the United States has
undertaken to give a definition to the jury of an act of



662 TRIAL OF AARON BURR.

treason in " levying war." The position taken by them-
selves, as stated in a a newspaper now in my hand [here
he read a passage from it] we mean to controvert. We
have a right to oppose gentlemen on the ground taken
by themselves. I deny the correctness of his definition.
When we differ as to the law, the court must decide
between us. The real meaning of his definition is that
a mere assemblage of men, without force, but met with
treasonable intention, constitutes a complete act of levy-
ing war. On this ground the most peaceable meeting,
if with treasonable designs, might be said to levy war.

Mr. Hay denied that his definition was accurately
stated ; he meant to rely on the definition given by the
supreme court of the United States, to which he re-
ferred. The gentleman did not understand me, said Mr.
Hay, as I meant to be understood, and as this must be
ovious, he ought to have the candor to admit it. The
great object of my argument was, to show that an assem-
blage of men, convened for the purpose of effecting by
force a treasonable object, and which force is meant to
be employed before their dispersion, is an overt act of
levying war against the United States. I appeal to you
and the gentlemen themselves, if this were not the sum
and substance of my argument. I took the ground that
the force to be employed was meant to be employed
before the separation of the party ; because if it were
a part of their design to disperse and meet at another
time and place, for the purpose of carrying the design
into effect, it would be only a conspiracy to levy war,
and not an act of levying war itself. It is easy to at-
tempt to bring an argument into ridicule. I have no
objection to his doing so ; but he is bound to show the
precise words which I did express, and not to impute to
me terms which I never used or arguments which I
should have disdained to employ.

Here a desultory discussion ensued between the coun-
sel on this point, when the chief justice observed that
he understood four distinct propositions to be stated to
the court (which he repeated), every one of which was
independent of every other ; and the last proposition he
considered to be, that if the record of the conviction of
him who is alleged to be the principal were not necessary



ARGUMENT OF MR. WICKHAM. 663

to be produced, parol evidence was admissible; yet the
act itself, which was charged to have been committed,
must be proved.

Mr. Wickham expressed his regret, that he was misun-
derstood ; that as to ridicule, he meant no such thing.
He admitted that it was not always, though it was'some-
times, the test of truth ; and though he might have been
justified by the example of others in using it, he had
then no such intention ; but he insisted that what the
gentleman denied was substantially what he contended
for. For, said Mr. Wickham, the only objection which
he makes to my construction of his definition is this, that
I did not state that the purpose was to be effected before
the separation of the party ; that is, that they must exe-
cute it on the spot, which involves locality. This is but
a small deviation, and can make no essential difference
in the offense; but how is it possible to establish by sat-
isfactory evidence, that a number of men intend to act
before any separation ? But he relies on the decision of
the supreme court; and he dignifies the meeting on
Blannerhassett's island with the name of an assemblage
of men convened to effect a treasonable purpose ; and
this assemblage without force, because convened with an
intention to use force thereafter, he says, is sufficient to
constitute an act of " levying war," within the true mean-
ing of the decision of the supreme court. Though some
parts of the opinion of the supreme court may be ex-
pressed too vaguely, yet if attentively considered through-
out, it can not justify the construction which that gen-
tleman thinks proper to put on it. It may indeed be
deemed marvellous, that gentlemen who ought to com-
prehend it do not. Part of that opinion is stated and
relied on ; but not the whole. When duly and fully con-
sidered it will be found to be what has always been con-
sidered to be the law in England. Part of this decision
is in these words: "It is not the intention of the court
to say, that no individual can be guilty of this crime, who
has not appeared in arms against his country ; on the
contrary, if the war be actually levied, that is, if a body
of men be actually assembled for the purpose of effecting
by force a treasonable purpose, all those who perform
any part, however minute, or however remote from the



664 TRIAL OF AARON BURR.

scene of action, and who are actually leagued in the gen-
eral conspiracy, are to be considered as traitors. But
there must be an actual assembling of men, for the trea-
sonable purpose to constitute a levying of war." It must
be evident even to the gentlemen on the other side, that
to cornplete the definition of treason to be found in this
opinion, the whole doctrine therein stated should be ex-
amined ; yet it seems as if he thought that we were to
look no further than this clause for the definition of trea-
son. If he had looked at the next paragraph, it would
have shown him the contraiy : " To complete the crime
of levying war against the United States, there must be
an actual assemblage of men for the purpose of executing
a treasonable design. In the case now before the court
a design to overturn the goverment of the United States
at New Orleans, by force, would have been unquestion-
ably a design, which if carried into execution, would
have been, treason. And the assemblage of a body of
men, for the purpose of carrying it into execution, would
amount to levying of war against the United States ; but
no conspiracy for this object, no enlisting of men to effect
it, would be an actual levying of war. In conformity
with the principles now laid down, have been the decisions
heretofore made by the judges of the United States."

" The opinions given by Judge Patterson and Judge
Iredell, in cases before them, imply an actual assembling
of men, though they rather designed to remark on the
purpose to which the force was to be applied, than on
the nature of the force itself. Their opinions, however,
contemplate the actual employment of force." " Judge
Chase in the trial of Fries was more explicit. He stated
the opinion of the court to be, 'that if a body of people



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