Aaron Burr.

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

. (page 63 of 64)
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conspire and meditate an insurrection to resist or oppose
the execution of any statute of the United States by
force, they are only guilty of a high misdemeanor; but
if they proceed to carry such intention into execution by
force, that they are guilty of the treason of levying war ;
and'the quantum of the force employed neither lessens
nor increases the crime ; whether by one hundred or one
thousand persons is wholly immaterial. The court are
of opinion (continued Judge Chase, on that occasion)
that a combination or conspiracy to levy war against the



ARGUMENT OF MR. W1CKHAM. 665

United States, is not treason, unless combined with an
attempt to carry such combination or conspiracy into
execution ; some actual force or violence must be used
in pursuance of such design to levy war, but it is alto-
gether immaterial whether the force used is sufficient to
effectuate the object ; any force, connected with the in-
tention, will constitute the crime of levying war.' ' The
opinions of these three judges are stated to be law ; and
all three declare some force to be actually necessary. Is
it not very plain from all these parts taken together, that
wherever the supreme court speak of any body of men
assembled for the purpose of effecting by force a treason-
able purpose, they mean that the force of which they
speak must be actually* used in order to make it treason ?
Is not one part of their opinion to be construed with and
explained by another ? In construing it, are gentlemen
at liberty to take one part and reject another which
qualifies it ?

I should think no other argument would be necessary
to show this ; but I will refer to your own opinion on the
commitment of Mr. Burr ; you said on that occasion, that
" an intention to commit treason is an offense entirely
distinct from the actual commission of that crime. War
can only be levied by the employment of actual force ;
troops must be embodied, men must be assembled in
order to levy war." Again you stated, that " to consti-
tute this crime, troops must be embodied, men must be
actually assembled ; and these are facts which can not
remain invisible. Treason may be machinated in secret,
but it can be perpetrated only in open day, and in the
eye of the world. Testimony of a fact, which in its own
nature is so notorious, ought to be unequivocal."

The act of levying war must therefore be an act of
force and of public notoriety exhibited before the world.
Compare your own opinion with the picture which the
gentleman has chosen to draw, and see how dissimilar
they are.

We are then told of the opinion and admissions of
Fries' counsel on his trial in Pennsylvania ; and an eulogism
is passed on that counsel (Mr. Lewis) on account of that
supposed opinion. The opinion of counsel is no author-
ity, however unequivocally expressed. But if we are to



066 TRIAL OF AARON BURR.

refer to the opinion of counsel, let us refer in like man-
ner to that of the counsel for the prosecution. Mr.
Ravvle is equally as respectable as Mr. Lewis. In Fries'
trial, p. 179, Mr. Rawle conceived himself authorized
upon good authority to say, " that levying war did not
only consist in open, manifest, and avowed rebellion
against the government, with a design of overthrowing
the constitution ; but it may consist in assembling to-
gether in numbers and by actual force, or by terror,
opposing any particular law or laws. There can be no
distinction as to the kind or nature of the laws, or the
particular object for which the law was passed, since all
are alike the acts of the legislature who are sent by the
people at large to express their will."

" Force need not be used to manifest this spirit of re-
bellion ; nor is it necessary that the attempt should have
been successful, to constitute the crime. The endeavor
by intimidation to do the act, whether it be accomplished
or not, amounts to treason, provided the object of those
concerned in the transaction is of a general nature, and
not applied to a special or private purpose." The
attempt to effect the purpose by terror is sufficient. I will
refer to the case put by the gentleman himself by way
of illustration, that if an assemblage of men were to march
unarmed into this town for the purpose of attacking the
capitol, and in such immense numbers as to render all
resistance vain and ineffectual, and no resistance were
therefore made, their object would be effected by terror
and imaginary alarm. Their numbers, in that case, would
supply the want of arms. The only difference is between
actual and potential force ; and in that case, there would
be potential force sufficient to effect their object.

In Fries' case, he came forward with an armed multi-
tude. He employed force as well as terror, to break
prisons, to rescue prisoners, and to oppose the operation
of the laws of his country.

The opinion of Mr. Sitgreaves, the other respectable
counsel of the United States, is still more explicit on this
subject. In p. 19 of that trial, he says, that " if the ar-
rangements are made, and the numbers of armed men
actually appear, so as to procure the object which they
have in view, by intimidation as well as by actual force,



ARGUMENT OF MR. WICK HAM. 66 7

that will constitute the offense." In p. 20, he says: " It
must be war waged against the United States. This is
an important distinction. A large assemblage of people
may come together, in whatever numbers, however they
may be armed or arrayed, or whatever degree of violence
they may commit, yet that alone would not constitute
treason ; the treason must be known ; it must be for a
public and not a private revenge; it must be avowedly
levying war against the United States. If people assem-
ble in this hostile manner, only to gratify revenge, or any
other purpose independent of war against the United
States, it will only amount to a riot ; but if it is an object
in which the persons have no particular interest, this con-
stitutes the offense of treason." With respect to the
definition of Foster, I will not take up the time of the
court by detailing it fully, or repeating what may have
been already quoted. Suffice it to say, that he considers
it a fixed principle, that there must be actual violence or
hostility, and that the overt acts must be public acts.
In p. 2 II, after mentioning several specific instances of
treasonable acts, he adds, that " all risings to effect these
innovations of a public and general concern by an armed
force, are in construction of law, high treason, within the
clause of levying war ; " and he gives one principal rea-
son, " that they have a direct tendency to dissolve all
the bonds of society and to destroy all property and all
government too, by numbers and an armed force." And
likewise that " insurrections for redressing national griev-
ances," " or the reformation of real or imaginary evils
of a public nature, and in which the insurgents have no
special interest ; risings to effect these ends by force and
numbers are by construction of law within the clause of
levying war." In short, all the English precedents show
that the overt acts are cases of actual hostility of a public
nature.

Vaughan's case in 5 State Trials, p. 37, may be consi-
dered as the strongest on this point. He had a commis-
sion from the French king, to cruise in the vessel or barge
called the Loyal Glencarty, against the subjects of Eng-
land. He commanded this vessel under French colors,
and met an English ship of superior force, and struck his
colors without a battle or making any resistance. The



668 TRIAL OF AARON BURR.

court will observe, that in the indictment against Vaughan
there were two counts, one for levying war, and the other
for adhering to the king's enemies and aiding and assist-
ing them. Mr. Phipps, the prisoner's counsel, objected
that there was no overt act of war proved against him,
because there was no act of hostility. But this objection
was overruled, and he was found guilty of adhering to
the king's enemies, and aiding and assisting them, and it
was determined that actual war must be proved under an
indictment for levying war. The opinion of the chief
justice was as follows : " When men form themselves into a
body, and march rank and file, with weapons offensive and
defensive, this is levying war with open force, if the design
be public." " When a ship is armed with guns, &c., and
doth appear on the coast watching an opportunity to
burn the king's ships in the harbor, and their design
known, and one goes to them, and aids and assists them,
this is an adhering to the king's enemies. Here are two
indictments, one for levying war and the other for adher-
ing to the king's enemies ; but the adhering to the king's
enemies is principally insisted on : and there must be an
actual war proved upon the person indicted in the one,
yet not to be proved in the other case." The cpurt
observed that the prisoner's counsel would make no
act to be " aiding and assisting," but fighting, which was
wrong ; that they were armed and had surrounded the
ship twice, and nothing prevented his making an attack,
but the superiority of the ship by which he was taken.
They were afraid to proceed on the count which was
charged the levying war, because public war and open
hostility must be proved to support it ; they went there-
fore on the other, for adhering to, and aiding the king's
enemies.

On further consideration, I admit that perhaps the
word " public " need not be inserted "in the indictment.
In the English precedents, and also in the first indict-
ment against John Fries, this word " public " is used ; but
I find that in the subsequent indictment against Fries, it is
omitted. I should only rely on the general usage being
an evidence of the law.

But what did the gentleman say in defining the " levy-
ing of war " ? that there is no necessity for arms, nor



ARGUMENT OF MR. WICK HAM. 669

the employment of force ! that there is no necessity even
for potential force to effect the intended purpose by ter-
ror ! that there is no necessity for the act to be public !
that an overt act of treason may be committed without
arms, without force, either actual or potential! If this
were law, there would be no safety. We know, however,
that a man may conceive a criminal intention, but that
the law does not punish it, unless carried into execution.
But the gentlemen takes away the " locus pcenitentice"
Men might be misled from their duty as citizens, and
induced to agree to resist the government and levy war,
but before they proceeded to action might repent, from
prudential or patriotic motives ; but according to the
doctrine of the gentlemen on the other side, they could
not retract. The intention once formed, though without
reflection, and though soon followed, after deliberation, by
sincere repentance, would be as severely punishable as the
actual execution of the treasonable design. A man who
had agreed to join in a treasonable project, but repented
and never joined the party, would be punishable as highly
as the traitors who actually perpetrated the crime. This
doctrine can never be correct.

He introduces another point to which I slightly ad-
verted before. After having taken away every induce-
ment to repentance and reformation, he rests the inno-
cence or criminality of the accused on their intention-to
separate or not, before the accomplishment of their
purpose. What would the gentleman call separation ?
Perhaps no two individuals have the same idea on this
subject. Such an indefinite, vague, indeterminate idea of
what would constitute guilt opens a door to constructive
treason, and is dangerous in the extreme. This defini-
tion fits no case but this case, and must have been inten-
ded to fit it ; it is the more alarming, as it may put the
safety of any individual in the power of the government ;
but I hope it will be disclaimed. It has never been heard
of before, and I trust in God it never will be heard of
in this country again.

I will now make some few observations on the testi-
mony, from which it will be seen that there was no hos-
tility of any kind committed. In the evidence of the
first witness, who was examined as to the transactions on



670 TRIAL OF AARON BURR.

the island (Peter Taylor, the gardener), there is not one
expression that gives the remotest idea of a treasonable
assemblage. He saw a few men and four or five rifles,
which were perfectly innocent; but what is more won-
derful, he saw some bullets run ! There is no impropriety
in running bullets, if the object be not criminal ; the
rifles were of no sort of service without the bullets; but
they had a little powder ! Of what use would their bul-
lets be without powder ? The quantity of each was so
very limited as to answer no other than innocent pur-
poses. He saw no military array or parade ; he saw no
improper act, nothing that could be justly construed to
be criminal or unlawful in their conduct. He says that
he saw Mr. Woodbridge in the night down with Blan-
nerhassett's party at the landing; but Mr. Woodbridge
denies it. What does another of their own witnesses,
Mr. Love, say? He says they were frightened at the
proclamation ; but he saw no military parade whatever,
nothing like hostility ; that they were afraid of the mob
who were about to pull down Blannerhassett's house.
Has the government a right to pull down houses?

" But they were prepared to defend themselves." Had
they not a right to do so ? As the witness said, if a man
struck him a blow on the face, he had a right to return
it. Mr. Woodbridge saw no military array or hostility,
nothing criminal, turbulent, tumultuous, or disorderly in
their conduct ; he saw nothing more than was peaceful,
and ordinary, and natural on such an occasion.

Here Mr. Hay expressed a hope that the court would
excuse him for interrupting the gentleman. He asked
if it were not absurd to argue on one half of the testi-
mony? He declared that they had several other wit-
nesses who would prove the character of the acts on the
island ; and that the intention of the party was to
take possession of New Orleans ; that he never knew a
criminal prosecution interrupted in this way ; only one
half of the evidence commented on to the court, before
the other half was submitted to the jury.

Here a desultory discussion took place. Mr. Burr
and his counsel contended, that they had distinctly under-
stood that the counsel for the prosecution had gone
through or produced all their testimony relative to what



ARGUMENT OF MR. WICKHAM. 671

was deemed the overt act, or the transaction on Blanner-
hassett's island ; that they had called on them to adduce
more evidence on that point if they could ; that they had
answered that they had only one or two more witnesses
whose evidence was to the same effect as that of the
others who had already been examined ; and that as
they happened to be then absent, it was clearly under-
stood they were at liberty to proceed to state their pro-
positions to the court ; and Mr. Burr added, that it was
his desire that everything relative to what they called
war should be first proved ; that he had permitted many
things which were extremely improper to be brought
forward, without objecting to them, as he wished every-
thing that regarded that point to be proved ; that he
urged them to prove an overt act, but that it could not
be proved. He desired to avail himself of the opportu-
nity of showing the defect of evidence and the futility of
the 'prosecution ; and that it was expressly declared by
the counsel for the prosecution, that they had examined
all their witnesses, except as before stated.

Mr. Hay insisted that gentlemen were mistaken in
their supposition that there was to be no other evidence ;
that he had expressly told the court and them, that it
was not admitted that there was no other evidence oft
this subject ; that they had no right to say that it was
admitted, or to assume as a fact that there was no other
evidence; that he had other testimony, and wished to
prove the connection between those who were on the
island, and those who went down to Cumberland river, and
were, proceeding down the Mississippi under the com-
mand of the accused ; that for the purpose of more clear-
ly showing this connection, all the testimony bearing
upon the subject should be examined and considered
together ; that he could not discern what could warrant
such an extraordinary motion as this was, to exclude evi-
dence, on a supposition that there was no other testimony
on a particular point in the cause.

Chief Justice. I understood, and it was certainly so
expressed, that the testimony relating to the transactions
on Blannerhassett's island had been gone through, but
that there was other evidence with respect to the inten-
tion, to show the character and nature of the assemblage ;



672 TRIAL OF AARON BURR.

and it is contended on the other side that you have no
right to introduce such other evidence. I do not con-
ceive the motion to be irregular. So far as it is a per-
sonal inconvenience to hear a lengthy discussion, I re-
gret it, for the sake of others who are affected by it ;
but the court feels it to be a duty which it must patient-
ly and cheerfully perform. Every legal proposition
which is made the court is bound to listen to, as well as
to reflect on and determine according to its best skill and
judgment. You mean to connect the transactions on
Blannerhassett's island with evidence of extrinsic cir-
cumstances drawn from other sources. But I understood
you to state most explicitly, that as far as related to the
character of the transactions on Blannerhassett's island,
you had examined all your witnesses. I do not under-
take to say that it is proper or improper to admit this
other evidence which is sought to be excluded. The
counsel for the defense say, that having completed your
evidence as to what happened on the island, you can not
connect that testimony against the accused with proof
of opinions and intentions, and such extrinsic circum-
stances happening out of the district as you desire to
adduce. Their arguments may be very unsound, and if
you think so, you have a right to show it ; but to say
that they have no right to advance them, is more than
the court can undertake.

Mr. Hay said that his object was to show what his judg-
ment deemed the impropriety of the course which gen-
tlemen had adopted ; that he had not been distinctly un-
derstood ; but that as he did not wish to take up the
time of the court, he had no objection to their going on
with their observations.

Mr. Wickham then resumed his argument. The coun-
sel on the other side having proved every circumstance
they could, relative to the overt act, it does not appear
on the face of it, that what occurred on the island
amouted to an act of " levying war." Their declara-
tions relative to the quo animo are irrelevant, and must
be confined to the assemblage itself. An intention to
commit treason is not treason itself. In supporting the
proposition that the act of levying war must be proved
to have been committed by the principal before the ac-



ARGUMENT OF MR. WICK HAM. 673

cessory can be affected by it, I am under the necessity of
speaking of the testimony; how can I otherwise do it?

Woodbridge saw no improper act, no hostility. Being
asked what passed between him and Tyler, he answered
that Tyler declared that he would not oppose the consti-
tuted authorities, but that if attacked by a mob he would
not yield to it. He had a right, and every man has a right
to resist unlawful aggression. In common with every
other citizen, he had a right to stand or fall by the laws
of his country. As there were no acts, his intentions
can only be judged by his words. None can discern
what designs a man has in his bosom.

Mr. Dana agrees perfectly with Mr. Woodbridge. He
passed over that night in his own boat to the island ; he
saw nothing hostile or improper. Though the people
were in great haste to leave the island, and though most
of them were strangers to him, yet they manifested no
alarm when he entered the hall where they were.

Mr. Belknap saw precisely the same things, and states
the same facts as Woodbridge and Dana. Yet during
all this time, we are told that a most bloody war raged
on the island.

But Mr. Poole was employed by the governor of Ohio
to apprehend Blannerhassett. But even his evidence
proves nothing like hostility. He thinks that some ot
the men had guns. He heard expressions about calling
for a boat ; that when a boat was called for from the
Ohio side, the answer was, what boat ? and if the reply
were, " I's boat," that a boat would be immediately sent
off; that otherwise it would not. He thinks the word
was " I's boat," or something like it, and that it was a
watchword or countersign. He was half a mile from
them, and it was a dark night. He therefore might be
deceived in his vision or hearing. Tyler's boats were
there. It might be a mere private signal among them-
selves, which might have been necessary to prevent mis-
takes, as they were using great dispatch to leave the is-
land, in order to avoid the attack of a mob.

But they have one more witness, Jacob Allbright. It

i.s impossible that this man's testimony can be true.

But the testimony of one witness, however correct, is not

.sufficient to establish the overt act. They must be two

i. 43



674 TRIAL OF AARON BURR.

witnesses for that purpose. But his evidence is contra-
dictory and incredible. He proves one act of hostility
against General Tupper, whom they did not chose to ex-
amine, though attending here to give his evidence. They
would have examined him, if they had believed that he
would have confirmed Allbright's evidence. Their not
doing it, proves that they thought he would have contra-
dicted Allbright. He says that Tupper laid his hand on
Biannerhassett, in the name of the commonwealth, and
that immediately seven or eight muskets were pointed at
him. Yet no warrant or authority was shown by him ;
and that he had no such authority must be presumed, as
he'was from Ohio. For against what state was the trea-
son committed ? It was treason against Virginia, if it
existed at all. Biannerhassett had a right to resist, if
Tupper had no warrant ; and this evidence of his arrest-
ing a man is without the production of any authority
whatever ; and yet this is called resistance to law. But
even if he had a warrant, and had been opposed in at-
tempting to serve it, it would not have been treason ; re-
sistance to process is not treason, though a great of-
fense.

But he had sworn before that those who levelled their
guns at Tupper were not in earnest ; and he now admits
that he does not know that they were in earnest ; as
" there was no quarrel among them, and no firing after-
wards."

He mentions another circumstance, which, connected
with the rest of his evidence, is equally incredible ; that
he saw at different times a number of guns equal to the
whole number of men. He acknowledges that he did
not see the men all with arms at once, and that he did
not know the men who had guns, nor could he tell the
number of guns ; how then could this man venture on his
oath to say that he had not seen the same arms at dif-
ferent times, in the hands of different persons? It is
obvious, from his own statement, that this might have
been the case, and therefore no confidence ought to be
put in what he says. If this be an overt act, anything
that any government chooses to consider as such may
be an overt act.

But the counsel on the other side seems to think that



ARGUMENT OF MR. WICK HAM. 675

the doctrine of treason may be extended, because no dan-
ger can be apprehended from it in this free country.
This argument may be very sound, if compared with his
other argument, that a majority of the people are always
right.

In every free country there is more occasion for guard-
ing against factions, than in a despotism. It is an evil in
the very nature of free governments, as everything good
in human institutions has its attendant evil. While it is
the effect of political freedom, it has ever been the cause
of its extinction. We ought to profit by the experience
of other nations, and repress that intolerance and party
spirit, which progressively but certainly lead to despotism ;
in producing which, the most dangerous and successful
engine has always been the doctrine of constructive trea-
son. In a despotism there are no factions or civil com-
motions. There are no factions in the camp or army of
Bonaparte. But in this, as well as in every other free



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 63 of 64)