May it please your honors: I shall now endeavor to close the important debate before the court, and to show that our motion ought to be granted. It involves certain great principles, on the correct settlement of which greatly depend the welfare and happiness of the people of this country. I shall therefore make no apology for any length of time I may occupy in the discussion of the question. When we are defending the life of a human being, and discussing principles of such vast importance to the interests of the community and posterity, time ought not to be regarded. A sufficient period ought to be devoted to the complete investigation of the subject, and entire development of truth. We contend that there is nothing to support the indictment before the jury, even admitting all those things to be true (and considering them as proved) which gentlemen say their testimony could establish. We call on the court to decide on the relevancy of the evidence which they offer. It is the duty of the court to prevent the introduction of any evidence in any case before it which is irrelevant to the issue. For this objection to illegal testimony, which it was our indispensable duty to make, we have been denounced throughout the United States as attempting to suppress the truth, and encroaching upon the exclusive rights of the jury. This subject shall be particularly discussed in the course of the argument. The exercise of this indisputable right has been held up to the public and to this jury as a conclusive proof of our guilt. It is alleged that we interrupt the due course of the testimony; that if we knew ourselves to be innocent, we would not have done so; and that it is sufficient to convince the jury of our criminality. We have been told that we are profoundly skilled in the science of defence, and are making the utmost efforts to save our client from merited punishment.Let us see what an immensity of time has been spent, and what means have been used in the course of this prosecution against our client, what patience and forbearance he hath manifested, and then let it be determined whether we ought to forego any legal advantages or surrender any of our rights.
The grand jury were sworn on the 22d of May; and we waited patiently from that day to the 13th day of June, before the primum mobile General Wilkinson thought proper to appear in obedience to the process of the court, by which means our client has suffered much inconvenience; and a great number of witnesses have suffered still more inconvenience. From the time that the indictment was found to be a true bill, our client has been closely confined. The first panel did not contain a sufficient number of unexceptionable jurors. Only four of them could be admitted; and these were not sworn till the 10th of August. Another panel was to be summoned, out of which the rest of the jury were not selected and sworn till the 17th of August; although Colonel Burr did everything that he possibly could to expedite the trial, waiving considerable privileges, as the history of the proceedings thereon will show. It may be said that he objected to a jury being sworn from the first panel, and therefore retarded the proceedings; but surely, sir, no person will consider it as a crime that he did not consent to be sacrificed; or, what is the same thing, that gentlemen who had signed his doom in their own minds before hand should decide on his reputation and his life. When this motion was made, though so much time had elapsed, only twelve witnesses had been sworn out of about one hundred and forty on their side; and there are thirty or more to be examined on our side; it is not, therefore, unreasonable to suppose that to examine all the witnesses, and hear the whole testimony, irrelevant as well as relevant, would require a month, perhaps two months. And further, when the circumstance of this season of the year is considered, the admission of illegal testimony, and waste of time in its examination, became more improper. Jurymen cannot be certain of retaining their health. Is it not probable that before the trial would be brought to a close, some of the jury, from the confinement which they must endure, might be taken sick? What would be the result? Our situation, already unpleasant and distressing, would become much more so.The jury must be discharged, and the whole must be done anew; or if by consent a juror were to be substituted in the place of a juror taken sick, the whole testimony must be re-examined, and the same length of time consumed; and if so, the same cause might again produce the same effect; so that from the infirmity of witnesses produced on the present occasion, there is scarcely a probability of the cause being determined in any reasonable period. During all this time Col. Burr must remain in confinement; and yet this time would be totally useless to him. While it oppressed him, it would afford him no benefit.
These considerations must satisfy every person who is in court, that our conduct is justifiable in resisting all attempts to introduce illegal testimony, and preventing the time of the court from being wasted in improper and irrelevant discussion; and that we do not wish to evade justice. I was myself disposed to waive these obvious and undeniable rights, and to submit to the inconveniences of hearing all the evidence, however irrelevant, because I was convinced that it would remove all the prejudices which have been excited against Colonel Burr without having the least foundation, and demonstrate his innocence to be as pure as that of the unsullied snow. But on consultation with the able gentlemen associated with me, this course has been deemed more eligible on principles of law as well as convenience. That the artifices and persecution of his enemies should have so far succeeded as to place Colonel Burr in his present situation, is a matter of deep regret; but I shall ever feel the sincerest gratitude to Heaven that my life has been preserved to this time, and that I am enabled to appear before this court in his defence; and if the efforts of those highly respectable and eminent gentlemen with whom I have the honor to be associated, may, united with my feeble aid, be successful in rescuing a gentleman for whom I, with pleasure, avow my friendship and esteem, from the fangs of his persecutors -- if our joint efforts shall be successful in wiping away the tears of filial piety, in healing the deep wounds inflicted on the breast of the child by the envenomed shafts of hatred and malice hurled at the heart of the father -- if our efforts shall succeed in preserving youth, innocence, elegance and merit from a life of unutterable misery, from despair, from distraction -- it will be to me the greatest pleasure. What dear delight will my heart enjoy! How ineffable, how supreme will be my bliss!
Nor is private friendship for the accused and his connections my only inducement to use my utmost efforts in his vidication.I am urged by a different but very powerful motive. I am thankful to Heaven that when a great question, so awfully important as that which respects the principles of treason, is to be decided -- a question on the correct construction of which the happiness or misery of the present and future ages depends -- it gives me infinite pleasure to have an opportunity of exerting to the utmost my feeble talents, in opposing principles which I consider so destructive as those which are advanced on the present occasion; and if we shall demonstrate contrary principles to be correct and proper, if we shall be able to satisfy the court that principles the reverse of those contended for on the part of the prosecution ought to be established, I shall think that I have not lived in vain.
In proceeding to the argument, Mr. Martin laid down, in substance, the same four general propositions discussed by Mr. Wickham, and said there were no other points in the case, unless the counsel for the prosecution had some further testimony to prove that Colonel Burr was on Blennerhassett's Island when the pretended overt act was committed. He said he would observe by way of preliminary remark that there was no sort of question but what the principal and accessory may be brought to trial together, (or at the same time,) if both be before the court and the accessory waive all objections to a trial; but if he do not waive it, the antecedent conviction of the principal must be produced; and if he waive it, the court will direct the jury to acquit him if the guilt of the principal be not proved. Here, sir, I would beg to be understood that neither Colonel Burr nor his counsel admit or suggest that Blennerhassett or any other person was guilty of treason on Blennerhassett's Island. It is only a suspicion. We have not the most distant idea that he was guilty. Where, then, was the propriety of saying that we are willing to sacrifice Blennerhassett? and that he might be hanged without pity or remorse on our part? We deny it. We disavow and execrate such sentiments. We hold up to the public our sacred belief that Blennerhassett is as innocent as I am, or as the gentlemen on the other side; that no man on the island was guilty of treason; and that the party who were there were engaged in honest and honorable pursuits, without any other motive whatever. If even the intention to make war had been proved, yet throughout the whole Union the violence of actual war has never been known to take place. If such a war have taken place, it was a mighty strange kind of war, which neither man nor woman nor child has ever seen or heard. Though there was a great war in the United States from New Hampshire to New Orleans, and a great number of persons engaged in it, yet in this great war not a single act of violence can be proved by any human being to have happened.
Mr. Martin then proceeded to examine the question, who are accessories in murder and felony before and after the fact, and to apply the result to the doctrine of treason, in which the law of England declares persons to be principals who in those cases are accessorial agents. In order to understand the doctrine correctly, it was necessary to have a clear and distinct idea in what instances persons concerned in murder and felony can be considered as principals, and in what cases accessories. It seemed to be agreed that those who by hire, counsel, or conspiracy -- and generally holden that those who by showing an express liking, approbation, or assent to another's felonious design of committing a felony, abet and encourage him to commit it, (but are so far absent when he commits it that he could not be encouraged by the hopes of any immediate help or assistance from them,) are accessories before the fact, both as to the felony intended and all other felonies which shall happen, in and by the execution of it, if they do not expressly retract and countermand their encouragement before it is actually committed. 2 Hawk. P.C. p. 445, c. 29, @ 16. Whenever a person can be considered by law as constructively present, though not heard or seen, accessorial agency does not apply to him, but he must be considered as an immediate actor, and so indicted. He then went into an elaborate examination of the authorities to show how far the doctrine of constructive presence had been carried by the courts.He read and commented upon the authorities cited by Mr. Wirt on this point, Lord Dacre's Case, Pudsey's Case, and others, and claimed that they clearly settled the doctrine that no person can be considered constructively present, so as to make him a principal, who is not engaged in the general conspiracy, and so near that the person who does the fact is emboldened in it, from the hopes of present and immediate assistance of the abettor, whether he be in view of the fact or not. He then said:
On the present occasion the counsel have endeavored to distinguish between cases of constructive presence in treason and other crimes. They insist that to determine the degree of proximity between the immediate actor and his aiders or abettors, who are legally construed to be present, you must consider the theatre of action, and extend the degree of proximity according to the extent of that theatre; that the legal presence, which would not exist in murder or felony, may well exist in treason; that in treason all the whole United States are the theatre of action; the scale of proximity essential to legal presence should be in proportion, so that persons in Tennessee or Kentucky are to be considered as legally present on Blennerhassett's Island when the acts in question were committed.It is evident that the principles of legal constructive presence cannot be extended to this case, for the actors could have no hopes of immediate assistance from the others, who were hundreds of miles distant. But they insist that treason consists in the treasonable intention. It has been echoed and re-echoed that treason consists in the treasonable intention. We admit that there is in Great Britain one species of treason which consists in the intention, without any act consummating the guilt of treason. I mean the compassing the death of the king, where the crime is merely imagined; and nothing more is necessary than to write a letter to a man advising him to kill the king, and that fact being proved, he is guilty and liable to be punished for treason, though the king was not killed, and though the party advised took no steps to pursue it. Though this be correct when confined to the death of the king, queen, or eldest son of the king, and the treasonable intention constitutes the treason, yet the overt act is evidence of the intention only and not of the actual commission of the crime, because writing a letter is not treason, but proof of the intention to commit it. But why is the intention to commit it treason in Great Britain? Because a special law is made for the safeguard of the life of the king, making it treason to conspire, compass, or imagine his death, when evidenced by some overt act such as I have just stated; a conspiracy against the life of the king, whether carried into execution or not, is made treason by special act of parliament. But in America we have no species of treason except two: levying war against the United States, and adhering to their enemies, giving them aid and comfort. What is the treason charged on us? Levying war. This overt act of levying war, which is said to have been committed, must be proved by two witnesses. According to the constitution, no person can be convicted unless on the testimony of two witnesses to the same overt act. If there be twenty overt acts and each of them proved by one witness, nay, if there be fifty overt acts committed at different places, and each proved only by one witness, it will not suffice; two witnesses must concur in proving the same act at some particular place or the accused cannot be convicted. The over act of levying war is not the crime of levying war, which consists of intention and act together. But gentlemen must admit that the intention alone is not punishable. There must be an actual levying of war, and the overt act is proof of it. On an indictment for levying war they can give no evidence but of what is charged. They can adduce proof only of the overt act which they have laid. Proof of the intention alone would be inadmissible; just as in the case of murder, the prosecutor cannot prove the murder without proving that the party has been killed; and so in a prosecution for stealing a horse, the taking of the horse must be proved; the malicious intention to kill in the one case, and the felonious intended appropriation in the other, must be established; but the intention in either case will not do without the act.
Mr. Martin said it had been repeatedly declared in our courts that the decisions in Great Britain, however entitled to respect, are not binding authority in this country; and he thanked God that such was the case. The principles laid down in Great Britain respecting treason, as appears from the history of their jurisprudence, have been such that their judges have in the most arbitrary manner carried into execution the most wicked wishes of the persons who held the crown. Even after the revolution of 1688 this has been the case, though not so much as formerly; they have extended the rules of evidence with respect to treason so as to shock humane judges. The influence of the crown was such, that whatever endangered the life of their sovereign lord and master, from whom the judges derived their authority, was construed to be treason in imagining or compassing his death. As they were under this bias, their decisions ought not to be considered as binding precedents, but received with great caution. It is necessary for the clear investigation of this matter that mere general expressions relating to the crime of treason in Great Britain ought not to be construed as extending to treason in levying war, but to the other branch, the doctrines of which were adopted to guard the life of the sovereign. The reason why there are not so many cases in Great Britain of indictments against accessories before the fact as against those after, was, that most of the prosecutions for treason there are for compassing the death of the king; and in indictments for compassing his death, he who advises it by writing or otherwise is as much a principal traitor as he who aids or assists in actually killing him. A party who converses on the subject is deemed a traitor; and the overt act is laid against him for compassing and consulting about the death of the king. Every act which evinces an intent formed in the mind of the accused against the safety of the king, as meeting to consult, writing a letter, enlisting men, preparing other means, &c., is admissible evidence to support an indictment for compassing or imagining the death of the king. An overt act must be set forth in every indictment for treason, and proved in every instance. In the case of compassing the death of the king, the objet of requiring it is to prove the intention. If the intention could be otherwise proved, whether any act were done or not, though the person of the king were never injured, yet the party would suffer death for it; because in that case the crime consists in the design formed in the mind. Levying war, itself, may be laid as an overt act of compassing the king's death; and when it is so laid, the accused need not be charged with anything more. When the indictment is for levying war as a specific treason, it must specify the overt act which is to support it. So says the act of parliament; so say all the authorities. This doctrine is fully confirmed in Vaughan's Case [2 Salk. 634], 5 State Tr. 17. Captain Vaughan went on board a vessel called the Loyal Clencartie, in the service of the French king, to cruise against the subjects of England. In that case there were two counts in the indictment: one for levying war and the other for adhering to the king's enemies. It was decided on argument that his cruising in this vessel, though he fought no battle, and committed no actual hostility, was an act of aiding, and supported the count for adhering to the king's enemies; but it was decided and admitted that it was not sufficient proof to support the other count for levying war; and "that there must be an actual war proved upon a person indicted for levying war." In Harding's Case, 2 Vent. 316, who was indicted of treason in the time of William and Mary for enlisting sixteen men and sending them to France to aid the king of that country against the English, it was decided that he was guilty of treason, but not of treason in levying war. The specific treason whereof he was guilty was not that of levying war, but adhering to the king's enemies. The indictment charged that he compassed the death of the king and queen, and levied war against them, in enlisting those men and sending them out of the country to aid their enemies. It was determined that he was guilty of high treason within the clause of the statute for compassing the death of the king, it being found by special verdict that the prisoner did enlist those men with an intent to depose the king and queen, &c. It appears to have been an almost universal practice in former times, in prosecutions carried on by the attorney general, to state in every indictment a charge for compassing the death of the king -- and for the plainest reason in the world: that this kind of indictment comprehended every kind of treason, and facilitated the conviction of those marked out for destruction. It was a comprehensive mode of prosecution which was more easy to be conducted and more successful in accomplishing the end proposed. If a person were to be indicted for aiding and assisting the king's enemies, or levying war against him, they would state in the indictment a charge for compassing the death of the king, because, according to the system adopted, this charge could be more easily supported by proof. Those who wished to destroy innocence preferred this mode of prosecution, because it would put the person accused more at their mercy. For in cases of compassing the king's death, the most wicked and arbitrary prosecutions were countenanced by the courts of justice. When the safety of the person of their king was in question, principles the most incompatible with justice were sanctioned. For this purpose, in every prosecution, when specific facts were proved, they would go into a history of the conspiracy against the king, because every conspiracy against the prince or his government was construed to be a plot intended against his life. And in the examination of these conspiracies, in order to establish their existence, they went into every kind of evidence -- letters and verbal declarations, and words uttered by others, though not in the presence or hearing of the person accused; letters, written not to him but to any other person, and papers found in his possession. All these were jumbled together to establish the conspiracy, and the connection of the persons accused with it. To establish those conspiracies, and the connection of those who were accused of being concerned in them, every species of illegal and improper evidence was admitted by the most corrupt judges that ever sat in a court of justice. Not acts alone, but mere loose words, a hasty declaration, and assent inferred from an unguarded expression, nay, the declarations of other people and papers found in the possession of the party, by whomsoever written, were all admitted against the accused as proofs of a conspiracy and of compassing the death of the king. Transactions in themselves innocent were deemed sufficient to condemn to the scaffold. A mere declaration was sufficient to prove any act required to be established, because the death of the king was the cause of prosecution. An open, notorious act was not deemed necessary to establish guilt, but a story, a mere verval assertion, without any positive proof of any real fact. This kind of evidence was admitted because it was the best calculated to destroy the victim of the government or of private revenge. They have on the present occasion proceeded on the principle that they could prove a conspiracy; but is there a particle of criminality proved? If some sort of connection between the person accused and those joined in the supposed conspiracy be proved, this is by no means sufficient on this indictment for levying war; but they must prove war actually levied -- an act done. No person can be guilty of treason, though a thousand conspiracies to levy war were proved, without the existence of actual war. There must be an actual war proved. That is the proof which is introduced in all other cases except compassing the death of the king. In prosecutions for levying war, there must be acts of violence alleged and proved; an actual was must be proved to exist; or, at least, sufficient must be stated to show that the party were in a posture of war. When specific acts or particular circumstances, not amounting to the actual levying of war, or an adherence to the king's enemies, constitute treason, they can only support an indictment for compassing the death of the king. This may be safely laid down as a general rule, from which there is no exception whatever.
Let us see whether the principle that requires a specification of the offence of receiving a traitor after the fact do not equally apply to the case of advising and procuring treason before the fact. The cases already mentioned sufficiently prove that there is no difference between them in this respect. Why is a receiver after the fact considered as a traitor? Because the law says that he is a principal in the treason. But it is as necessary to distinguish or specify the crime of advising treason, or that a person said a thing before the fact, as it is to distinguish the doing a thing, as receiving a person guilty of treason after the fact. Is there any distinction between them? Is not notice as necessary in one case as the other? Each is considered as a principal in the treason. It is surely as necessary to lay the receiver in the indictment as having done the principal act himself, as he has done that which the law says makes him a principal, as it is to charge the adviser with having performed the act of war himself, because he has committed what makes him in law a principal. If he have done an act which the law says makes him a principal in treason, and it is sufficient in any case, however special the facts, to charge the accused generally according to the legal effect, then he may be charged generally in every case, and there will be no necessity of a specification in any case. I ask, if a man who counsels the levying of war can be charged with levying war, because he is a principal in treason, cannot the receiver be generally charged, also, with levying war, since he has done what makes him guilty of treason? The reason is in both cases the same. If, notwithstanding his having done what makes him a principal in treason, a receiver of a traitor must be specially charged, there is no reason in the world why a person who advises the commission of treason should not be charged specially. But there is a direct reason, stated in Foster, Hale, and Hawkins, why the adviser of treason should be specially charged: that in all other cases, except compassing the king's death, those who are to be considered as accessories (as far as relates to the mode of prosecution) cannot be put on their trial, except the principal have been convicted; but they may be brought to trial together. Do not these authorities prove that the indictment must specially show who is charged as an accessorial agent, and who did the act? That if they be not tried together the indictment must show that the principal has been convicted, since till then he cannot be tried against his will? How is he to know, when indicted in this general mode, that they do not mean to charge him by their proof directly with levying war in person? How can he suppose from this indictment that they mean to make it appear that other persons levied the war, and that he was more than one hundred miles off? If the indictment charged, what is true, that he was not with the actors, that he was at a great distance, but he advised or persuaded them to act, then he would not be obliged to be tried till the principal should have been convicted. Does not this furnish a decisive argument to prove that the indictment must specially show that the accused is charged as an accessory, when the evidence is intended to prove it? Before the conviction of the principal, the accessory cannot be put on his trial, except together with the principal; in which case the jury are expressly to be directed that if they do not find the principal (the person charged with levying the war) guilty, they are not to inquire into the conduct of the person who advised the levying of the war, but to acquit him, of course, since his guilt, being only derivative in its nature, cannot exist, if the principal on whose guilt it would be founded be innocent. How else could he object to a trial? It would be impossible for the accessorial agent to make any objection, unless it were specially stated in the indictment that he was charged as an accessory. This is full and explicit to show why, in treason, an overt act is laid in the indictment; that the party charged may know what he is charged with.
I ask, how could Colonel Burr, charged with treason on Blennerhassett's Island, know the specific act meant to be proved against him? that he was meant to be charged with some act done there when he was two hundred miles off? that he was considered as having advised that act? and that this was the offence he was to answer for? But gentlemen say that a specification is unnecessary, because we know what the charge is against Colonel Burr.The law presumes that every person is innocent till the contrary appear; that the party charged has no knowledge at all of what is not specified; and, consequently, that any man who means to disprove that innocence should make a clear and distinct charge against him. Gentlemen say that he must know the charge, because he has summoned thirty or forty men to give testimony in his favor. We saw that we were charged with treason on Blennerhassett's Island; and we have summoned these witnesses to prove that we were not there, and to contradict the evidence of certain witnesses summoned against us -- I might say to prove the character of that all-important witness who endeavored to excite an insurrection of the negroes. Of this, however, the proof is rendered unnecessary by his precipitate flight. As they have charged that we were on the island, and laid there what they deem an overt act of levying war, we could not but conclude that they meant to prove it. We could not conjecture that they meant to prove, not that we were on the island, but that others were there, and to connect us with them. Hawkins, Hale, and Foster all declare the reason why an overt act must be stated: that the accused may know how to defend himself against it. The constitution and laws have provided that persons accused of crimes shall be tried in the state and district where they were committed; and that a copy of the indictment should be given to the accused a certain number of days before his trial, in order that he might be prepared to make his defence. If, when the party accused comes to be tried, evidence proving a different charge from that which is stated in the indictment of which he had a copy were to be admitted against him, would it not be a mockery of the constitution and a denial of justice? It would, because though the form were complied with by delivering him a copy, it would give him no notice of what was to be proved against him. But gentlemen say that the indictment does not charge Colonel Burr with being on the island, and therefore it need not be proved. If the indictment say that he levied war on the island, does it not necessarily allege that he was there? When it charges that he committed an overt act there, is it not the legal and fair inference that he was at the place when he committed it? When a party is said to have done any act at any place, is it not naturally understood that he was at the place where he is thus said to have committed the act?
But the gentleman says that he has authority to show that he may be charged as present, though not there; and he cites in support of the assertion 1 Hale, P.C. pp. 214, 238, and 1 East, P.C. p. 127.Let us see whether anything in Hale justify it. In page 214, his words are: "But if many conspire to counterfeit, or counsel, or abet it, and one of them doth the fact upon that counselling or conspiracy, it is treason in all, and they may be all indicted for counterfeiting generally within this statute, for, in such case, in treason all are principals." We must consider only as much of the precedents as from the reason of the case applies to the subject now in discussion. Now Hale has not said not said that those persons who, having conspired to counterfeit, become traitors by one of them having done the fact, upon that conspiracy, were not present. He says nothing of their being present or absent, but that if several conspire and only some of them act in pursuance of that conspiracy they are all equally guilty; that if two conspire to counterfeit the coin, and one do it according to the intention of that conspiracy, they are both equally guilty of treason. It is the nature of a conspiracy that what two conspire to do may be done by one, whether the other be absent or present. Hale says nothing as to their being together, or whether an absentee, or a person who only advises, can be charged as present and an actor. He leaves these questions just where they were, unexamined and undecided. If two persons conspire together for any unlawful purpose, as to write a letter to cheat a third person, and one of them write the letter, the other, being present, is considered as a conspirator, and as criminal as the writer of the letter, and they are indicted as joint conspirators. So in coining money: if two have joined in a conspiracy to counterfeit, and a part of the conspiracy be that one shall act upon that conspiracy, and he doth counterfeit or coin false money accordingly, they are equally guilty, and the act of one is thus the act of the other, under the law against coining false money in England. But he does not say that the party were absent. He refers to no authority. It is a mere inference, and can have no influence on this case. It can have no influence on accessorial agency. Here, though it does not strictly apply to this branch of my argument, I may draw a conclusion from the authority adduced by themselves, which operates against them. In this very page he had just said before that "there must be an actual counterfeiting; for a compassing, conspiracy, or attempt to counterfeit is not treason within this statute, without an actual counterfeiting." On the same principle, if the doctrine be applied to levying war, there must be an actual levying of war; and a conspiracy or attempt to levy war is not treason within the words and meaning of the constitution. So much for page 214.
Let us now turn to page 238, and see whether it can furnish any justification of the gentleman's argument: "Though the receiver of a traitor, knowing it, be a principal traitor, and shall not be said an accessory, yet thus much he partakes of an accessory, that his indictment must be special of the receipt, and not generally that he did the thing, (which authority we have repeatedly urged against them,) which may be otherwise in case of one that is a procurer, counsellor, or consenter. Thus it was done in Conier's Case, Dyer, 296a." This authority he relies on to show that a procurer or an accessory before the fact need not be specially charged; that he may be indicted generally that he levied the war. The words, "which may be otherwise in the case of one that is a procurer," &c., are depended on. So it may be otherwise in that species of treason compassing the king's death. I have no doubt that in that species of treason any degree of accessorial agency before the fact, as counselling another person, writing a letter, &c., would be construed an overt act of compassing the death; and, therefore, the accessory before the fact might be indicted generally for having compassed the death of the king. But it would not be so in the case of levying war, or any other treason. If he mean anything else, there is not a shadow of authority for it. He cites a case in Dyer which does not justify the construction for which the gentleman contends. That case only shows that a receiver of a false coiner was indicted specially for the receipt, and it was deemed a misdemeanor. That was an indictment for receiving a coiner, knowing him to have counterfeited or coined false money; and it specified the receiving him particularly; but judgment was not rendered against him, because it was judged to be only a misdemeanor. It states nothing as to the manner in which an accessory before the fact ought to be indicted; but it may fairly be inferred from it that he ought to be charged specially, as the indictment in that case was special. 1 East, P.C. p. 127, merely refers to those passages of Hale which have been just commented on, but does not explain them; but he fully explains himself in pages 100, 101, of the same volume, which, though already referred to, I beg leave again to read: "In regard to all acts of approbation, incitement, advice, or procuring, to that species of treason, compassing the king's death, &c., there is no doubt that the party may be tried before the person who acted upon such indictment, because the bare advising or encouraging to such actions is in itself a complete overt act of compassing, and it is totally immaterial whether the attempt were ever made or not. The Case of Sommerville proves no more than this, (though the rule is there laid down in general terms,) that a person aiding or procuring a treason may be tried before the actor. But with regard to all other treasons within the 25 Edw. III., 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 forebore 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 cannot be said that a person procured an offence which in truth never was 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 benefit of the law and submit to a trial." Here East explains himself where he means that a man may be indicted generally, and shows that where a party is to be considered in an accessorial point of view, he cannot be brought to trial, except by his own choice, until the principal be convicted or outlawed. Here those persons who advised or procured a treason before, are placed on the same footing with those who receive a traitor after the fact. But any act of an accessorial nature may be a complete overt act of that species of treason which comes within that clause of the statute which is against compassing the death of the king, quenn, &c. This is the most comprehensive treason, the most easily prosecuted, and the most liable to be abused for the purpose of tyranny and oppression. As Aaron's rod swallowed all other rods, so this treason for compassing the king's death swallows all other treasons. 2 Hale, P.C. p. 223 (which see before), shows that though in high treason all are to be considered as principals, yet accessories before and after the fact (who are both put on the same footing) art to be proceeded against only as accessorial agents; that the accessory shall not be put to answer of the receipt or procurement, till the principal be outlawed, (or attained, &c.)
But the gentleman has said that agreeably to our constitution they could not charge the accused otherwise than as they have done; that they must have charged him with levying war. I cannot see any difficulty in charging him according to the truth of the case. But however criminal or injurious his conduct may be, and however much he may deserve punishment, he ought not to be deprived of the benefit of law, or to be considered as guilty of treason, without legal proof of his having committed an overt act of levying war, or to be condemned unheard to subserve unworthy party purposes. If advising a man to levy war be treason and punishable under the constitution in the same manner as actually levying war, I ask why should not the indictment be so drawn as to correspond with the evidence, and give full notice to the accused of the charge intended to be proved against him? I ask why was not the indictment in this case so drawn as to embrace the real facts? Why did it not state that A, B, and C, (meaning those on the island,) did levy war against the United States, and that Colonel Burr did advise, incite, encourage and counsel them to levy it?
Gentlemen say that we have insisted that the accessory ought not to be brought to trial till the principal were convicted; but that there is a case where it is not necessary to produce this record. We did not mean to deny one exception from this general rule: that they may be tried together. We admit that the position was laid down in terms rather too broad; because if the principal and accessory were indicted in the same indictment together, the accessorial agent could not be found guilty till the guilt of the principal were found. In that case the record of the conviction would not be necessary, because it could not exist. The indictment in such case would specify distinct charges against both according to the real facts; which would enable each of them to be prepared for trial. But the court would direct the jury: "Gentlemen, you are first to decide whether the principal charged with having done the acts be guilty or not. If you do not find him guilty, you are to make no inquiry as to the accessorial agent, (whose guilt is connected with and founded alone on that of the principal,) but to find him not guilty and discharge him of course; but if you find the principal guilty, you are then to inquire into the conduct of the accessory." But gentlemen, unable to controvert this correct doctrine, endeavor to avoid it, and say that Colonel Burr might have declined a trial till some of the actors who were on the island had been convicted. They ask us, why did not Colonel Burr refuse to come to trial? and urge that by submitting to a trial, he has waived the benefit of every objection which he might have been entitled to make. That they should have mentioned Blennerhassett in terms of compassion and regret may be accounted for; they may have policy for doing so. For some think that the public indignation ought only to be excited against Colonel Burr, in order to press him down as much as possible. This indirect seems to be a favorite mode of attacking the accused. But Colonel Burr could not resist a trial. The prosecutor has thought proper to charge him as having levied war in person, as a principal actor; and being thus indicted, he could not avoid it. He could make no specific objection. He could only meet the accusation by the general defence of not guilty.
Having proved that under this indictment no evidence yet adduced is competent to convict the accused, I shall now make a few observations on one of the questions before your honors. There is one proposition laid down by us which is of the greatest importance, and requires the utmost deliberation. It is this: Admit that the acts on the island were done with an intention to subvert the government of the United States, (which I hold must be the motive to render them treasonable; for no person will controvert this position, that the acts of levying war, in order to be treasonable, must have been done with this design,) yet there was no act of war, no violence done; there was no overt act of levying war, no treason committed. It involves a most important question: whether the most peaceable acts, acts innocent in their nature, though done with a design of subverting the government of the United States, can be considered as acts of levying war against the United States. The question is, whether violence be not necessary; whether some act of force must not be used to constitute a levying of war? We insist that no evidence can support an indictment for levying war without some act of violence. What is a levying of war? Why, gentlemen say that levying war is levying war -- "lever la guerre" -- levying soldiers -- that it consists in preparing the means of war. I should rather suppose that the framers of our constitution, who proceeded with so much caution, and endeavored in every part of that instrument to secure the rights and liberties of their felllow-citizens, and especially a speedy trial by an impartial jury of the district, did not intend, by the terms "levying war," an unnatural and dangerous construction, unknown in common parlance, and unusual in history or judicial proceedings. They could not have contemplated an extension of the doctrine of constructive treason, which has been always held so peculiarly hostile to civil liberty. They never could have intended that acts peaceable or innocent in themselves should constitute treason. If by "levying war" they meant enlisting of troops or raising an army, they would have said so in plain terms. They would have said that "treason against the United States shall consist in enlisting or levying troops, or raising an army, with intention to make war against them." If levying troops, embodying men, or enlisting soldiers, with intention to subvert the government of the United States, were intended as sufficient to constitute treason, why did not the framers of the constitution say so? Why did they not say that levying of troops or raising an army had the same idea or meant the same thing as levying of war?
In a constitution devised by men distinguished as much for their devotion to the public good as eminent by their talents, nothing unfavorable to liberty would have been intended. Precision of language must also have been attended to. Nothing, therefore, can justify the construction which gentlemen advocate but unavoidable necessity. But it is as unnecessary as it is dangerous. If they had intended that merely to enlist men, to raise and embody troops, to raise an army, without anything more, should constitute treason, they would have expressed it in such plain terms as to defy misconstruction. Levying of war implies force of some kind. The idea of violence of some kind is inseparable from that of war. But, sir, raising an army or levying troops is only a preparatory step towards levying war. You levy troops in preparation, in intention to levy war. But no act preparatory to levying war can be an actual levying of war. What is the technical meaning of "levying?" Whether derived from the French word "lever," or the Latin word "levare," to raise, (or, as applied to war, to make,) to levy war is to make it, according to its popular acceptation, as well as its meaning as used by some of the best writers. The meaning or true construction of both expressions, "to levy war," and "to make war," is precisely the same. Whatever is making war is levying it.
But, says the gentleman, "levying war and making war are different things; an overt act of levying war and an overt act of war are not the same; the king of England can levy war, but his troops make the war; that he levies, but his officers and soldiers fight the battles and make it." I did not know before, that in the United States, levying or raising troops was the same thing as levying war. Troops are often raised. One hundred thousand men have been authorized to be called out; but I did not know that we were levying war, however desirous some individuals may be that it were so. But gentlemen say that it is a common expression that the king levies war, and his officers and soldiers actually make it. Why is it said that the king levies war? It is a very uncouth expression; but he is said to levy war because he represents the nation. It is the nation in its national character that really makes war; and he is the person who is at the head of the nation, of which nation the officers and soldiers are only the constituent parts. He is said to levy war, because he is the representative of the nation in its national capacity. The United States also make war in their national capacity. They are composed of individuals, of whom the officers and soldiers, like the people of other countries, actually fight battles. It may as well be said that if I, Luther Martin, knock a man down with my hand, I do not knock him down, but my hand does; because my hand is a constituent part of my body. But there is no such distinction as gentlemen contend for between the king and his officers and soldiers. There is no such distinction as that the king levies, and his officers and soldiers make war. One king, as the representative of one nation, makes war on another as the representative of another nation; and thus the one nation makes war on the other. But there is no possible correctness in the distinction contended for. There is none in reason, in the decisions of courts, or in the practice of nations, which confines the making of war to those who actually fight battles; and until there shall be some decision establishing such a distinction, and thereby placing our country in a worse situation than the laws of Great Britain have placed that country, I cannot believe it to exist. I shall hold the true definition of levying war to be making war, and for the purpose of subverting the government of the United States. Sir, "making war," ex vi termini, implies the use of force, violence, soldiers. I appeal to the authorities both in Great Britain and America, as far as prosecutions for levying war have taken place in this country, whether an act of violence has not always been deemed essential to levying war; and whether the indictments do not specify some act of force or violence.
Even in the constructive treasons of destroying meetinghouses, and pulling down bawdy houses, force or violence must be employed to constitute treason. In all cases of that kind, houses have been violently torn down and destroyed, and many persons greatly injured. In the cases of Messenger, Green, and others, those of Damaree and Purchase, and all other cases of the like kind in England, and that of Fries and other cases in this country, force and violence have been used, and invariably stated; and what is still more decisive as to the necessity of employing actual force or using violence on such occasions, it was determined by all the judges of England on the former cases, that as to Green and Bedel, the special verdicts were not full enough to judge it treason, because the verdicts only found that these two persons were present, but neither found any particular act of force committed by them, nor that they were aiding and assisting to the rest who did use violence. Force or violence has always been deemed essential to the existence of treasonable war in England; and I call on the gentlemen to show one instance to the contrary.
Mr. Martin argued that men assembling and marching in military array, without actual violence being committed, could not constitute an overt act of leving war. He went into a critical examination of Lord Balmarino's Case, (relied on by the other side,) and contended that although he was seen marching at the head of a large body of armed troops, yet the plain inference from the report of the case was, that the court never considered such marching in military array as a sufficient overt act; that it was his taking possession of and holding the city of Carlisle that constituted the overt act which, in the opinion of the court, justified his conviction; and without this, or some other act of violence, the mere marching in military array, as aforesaid, would not, in the opinion of the court, have been sufficient. He also commented upon Vaughan's Case, in which it had been contended by the prosecution that the mere crusing on the high seas, without any acts of violence, had been held to constitute an overt act of levying war. He said as that was an indictment for aiding the king's enemies, which was proved by his cruising against the English, it could not be considered an authority for the purpose of proving that force is unnecessary to constitute treason in levying war. On this point he cited and commented upon many other authorities. He then said:
I beg leave to make a few observations on that part of our inquiries which relates to the great constitutional question: whether a person who, in Great Britain, would only be guilty of accessorial agency, can be guilty of treason in the United States. Is an act of accessorial agency before or after the fact in treason, in the United States, treason or not? Here I beg leave to observe that we ought not to be misled by the argument of the gentlemen; that the most guilty might pass unpunished by the negative of this question. The question is not whether a person can, by procuring treason to be committed, or by receiving and comforting a traitor, be guilty of a crime. No person will doubt but the person who is guilty of advising treason is guilty of a great crime, and liable to punishment; but the question which I propose to examine into, is, whether that crime be treason or not. He who advises, procures, or persuades another to commit treason is highly criminal, and merits very severe punishment.The receiver of a traitor, knowing him to be such, is highly censurable and punishable. But we aver that neither of them is guilty of treason within the true interpretation of the constitution of the United States. Every preparation made for the purpose of making or levying of war is not an act of treason; because nothing but making war for the purpose of changing or subverting the government of the United States is treason. Every act of those who make those preparations to levy war is criminal; and the government has an undoubted right to use the force of the country and all the means which the laws allow for their suppression. The government has an unquestionable right to punish those persons, and prevent their acts from being ripened into acts of treason. 1 It is not the question whether the government be to look on passively, and see those preparations matured without opposition, which are intended for its destruction. No person doubts the right of the government to punish those persons, and prevent the maturity and success of their plans. So clearly was the congress of the United States of opinion that preparation to levy war was not treason, that, if I mistake not, there was an act passed last session expressly punishing such preparatory acts. It passed one branch of the legislature, and was sent forward to the other for its concurrence. I am not certain, but I believe it passed.
The CHIEF JUSTICE. -- I believe it did not pass. 2
Mr. Martin. It is immaterial whether it passed or not. It was in contemplation, and deemed necessary, whether the law passed or not. The only question is, whether a person who advised or procured treason to be committed be guilty of high treason or not. No person doubts that he is guilty of a great crime or a high misdemeanor; but is the offence of which he is guilty treason? But gentlemen ask what a deplorable situation the country is in if such an offence be not treason. As if the people and government were bound hand and foot, and could take no step to prevent the levying of war; as if, because he who only prepares to levy war cannot be punished as if he had actually levied it, he must escape entirely with impunity! as if, because preparation is not the same as consummation, there was no possibility of punishing it! This is begging the question entirely. There is no doubt that for so doing he would be guilty of treason in Great Britain; because it would be evidence to support an indictment for compassing the death of the king. But can a person who only advises war to be levied be said to have actually levied it? Gentlemen say that he had all the moral and intentional and therefore ought to be considered as having the actual guilt of it. Let it be so, that he has all the guilt of giving the advice, but not of the act of levying the war, because he never committed it. The court is to decide according to the constitution and laws. What prevented the framers of our constitution from providing that persons who should counsel, commend, or procure levying of war against the United States should be guilty of treason? As they made no such provision they did not intend it. There is another reason which prevents a mere counsellor or adviser of treason from being guilty of the treason of levying war. It is this: that levying war is of itself an open, public act. It is of such notoriety that everybody may see it going on. It is carried on publicly in the face of the world when the parties are levying it. It cannot, from its nature, be concealed from the public view. The word "public," we say, is material, though omitted in this indictment. It ought to be laid, because it ought to be proved. The authorities show that it ought to be so charged; and that levying of war must be an act of such notoriety that every one sees it. When troops are levied, and when they march through the country, &c., the people behold them, and the knowledge of the fact is universal.
We have had two insurrections in Pennsylvania: the one named the "Whisky Insurrection," and the other the "Hot Water Insurrection." If I were to name this I would call it the "Will-o'-the-Wisp Treason." For though it is said to be here and there and everywhere, yet it is nowhere. It exists only in the newspapers and in the mouths of the enemies of the gentleman for whom appear, who get it put into the newspapers. But as acts of war must be open and public, if war exist at all it may be easily proved. If false, it may be easily proved to so. If a man were to come forward and say that war was made, that armies marched and took towns and places, laid waste the country and took contributions from the inhabitants, if it were true it could be proved by everybody; if false, it could be disproved by everybody. Open and notorious facts are susceptible of easy proof or contradiction. But an advice previously given to commit treason is not in its nature susceptible of clear, explicit proof. It may be given in private and may be pretended to have been given when it was not. Innocent persons may be implicated. Communications or declarations may be feigned to have been secretly made which never were made. Persons having enmity against others and intent on their destruction may be brought forward in a court of justice as witnesses against them, and gratify their resentment by the disclosure of conspiracies which never existed but in their own malice, because they are secret crimes incapable in their nature of being directly refuted or disproved. If open deeds, notorious facts are not to be the only evidence, confessions must be received. The framers of the constitution wisely determined that no man should be guilty of treason in such a case. They would not expose the life of any man to the hazard of being destroyed by perjury, incapable from its nature of being disproved.They have secured a probability (if not a certainty) that the accused cannot be convicted unless he be guilty. They have not secured him from the resentment or hatred of private individuals, (for that is impossible,) but they have taken care that he is not to be charged with private acts incapable of disproof; with confessions and acknowledgments unsupported by probability; so that while there is a probability of the guilty being punished, the innocent is secured from being sacrificed to the malignant resentment of his enemies. These principles are such as ought to have directed and influenced (and no doubt did) the conduct of those who framed the constitution -- men selected for their wisdom and patriotism to devise a system of government to secure and perpetuate the liberty and happiness of their country. No gentleman who had read and considered ancient history and knew the various systems of oppression which had existed in different countries, and the necessity of protecting innocence as well as punishing guilt, would have subjected his country to such misery as that any man could be convicted on evidence impossible to be disproved; and of this nature are all acts of accessorial agency before the fact in treason, as advising, counselling, commanding, &c., as well as many acts of accessorial agency after the fact. I have made these observations to show the principles on which the convention might correctly have determined to exclude this doctrine of accessorial treason. Let me now make some observations on the constitution itself, abstractedly from the consideration of those principles which must have most probably actuated the convention.
The gentleman who so ably opened the debate (Mr. Wickham) correctly said that the constitution, which was made to perpetuate the liberties of the people of this country, is to be construed differently from a statute law; that it is a sacred compact made between the United States in their corporate capacity, and every individual belonging to the United States. The United States in their corporate aggregate capacity have pledged themselves to the people of America that this constitution shall be the safeguard of their liberties and a barrier against encroachments on their rights, and that it shall continue unaltered unless amended by a constitutional majority. As to all statutes to be enacted by any succeeding legislatures, it is a compact that they shall not impair the great principles of, or transcend the limits prescribed by the constitution. In this view it is a compact between the United States and individuals; but when any question arising under any part of it comes before a court of justice, when any part of it is to be considered judicially, it is to be considered as the supreme law of the land. It is to be construed by the very terms of the compact itself: "This constitution, and the laws of the United States which shall be made in pursuance thereof," -- "shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." The judges are thereby rendered incapable of making any decision in support of any law contravening its provisions or principles; and if any law passed by the legislature be contrary to any of the provisions of this constitution, the judges who are to pronounce judgment on the rights of individuals affected by such unconstitutional law, shall consider it as void and null as far as it contravenes or violates the constitution.
The gentlemen also said that the framers of the constitution intended to guard against constructive treason. This principle is so self-evident that it cannot be controverted. It neither has been nor can be denied. They certainly intended to make the question, what shall be said to be treason, as clear as possible, so that there should be no doubt. I ask what constructive treason is but that treason which the constitution does not mention in plain and express terms, but is inferred from circumstances by implication and construction. The terms employed by its framers are admirably calculated to exclude all construction and implication. He who reads with an intention to understand cannot possibly mistake their meaning. They tell him in plain terms that treason against the United States shall consist but in two acts: "that it shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." He who levies war against the United States, and he who adheres to their enemies, giving them aid and comfort, are traitors, and none other, by the very positive and plain language of this compact. Does the constitution say that he who advises these acts, that he who receives or comforts any person who has done either of these acts, is guilty of treason? No person will say that he who counselled an act of war to be done is the person who actually did it. No person will say that he who advises another to adhere to the enemies of his country is the person who actually did adhere to them. He who advises, procures, or persuades, he who receives, comforts, or protects, or even he who has been active in aiding and assisting, but absent at a remote distance from the scene of action, is not the actor. The parts which these persons perform are all essentially different. Have the judges who judicially expound this constitution any authority to make the act of advising or comforting treasonable by construction? Is it not by construction that a man is made guilty of having levied war who only advised it? Is it not by construction that he is rendered guilty of levying war who only gave a night's lodging to a person who did assist in levying it? Is it not by construction that giving a dinner to a man in distress is tortured into levying of war? It is not by construction extravagantly extended that they make a party absent at a great distance constructively present and constructively guilty of the acts of others? Is the constitution of the United States to be taken by construction contrary to its own plain and explicit words? It is the same as if the constitution had expressly said that there should be no constructive treason, no constructive presence, no constructive agent.
The gentlemen went on to show that the common law could not be brought to aid them to make that treason which was not so before; to make an act of accessorial agency amount of treason, though not so without it. They have admitted fully that the common law cannot be received for the purpose of making that a crime which is not so by the constitution of the United States and laws made in pursuance thereof. But they admit that the common law, by the adoption of certain technical phrases in the constitution, is so far in force as to direct the sense or meaning of certain crimes, and the mode of proceeding on trials for those crimes. For instance, if a statute say that "if a man commit murder he shall be punished so and so, and the constitution say that the trial of all crimes (except in cases of impeachment) shall be by jury," the common law must be resorted to for the meaning of the word "murder"; and as the party accused is to be tried by a jury, the common law must be resorted to for the purpose of ascertaining the meaning of the word "trial" and the word "jury." The common law informs how many men shall constitute a jury; that it shall consist of twelve. It says that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court. The common law must be resorted to for the meaning of the word "convicted." It explains it to mean that the jury must be unanimous to find him guilty. But that beyond the effect of those technical phrases, which express the powers delegated to the government, the common law has not been adopted under the government of the United States. Does it not follow, as a necessary consequence, that no man can be guilty of an offence against the United States merely at common law? Is it not clear that the principles of the common law, as existing in Great Britain, cannot be applied here so as to make that an offence which is not so by the constitution and laws of the United States? Can the common law be resorted to in order to explain the constitution so as to make that a crime which would not be so without it? On that point I can readily declare to the gentlemen that I have always been of the same opinion which they declare themselves to hold. I never did consider that anything could be prosecuted as a crime against the United States, unless it were made so by the constitution, or some law enacted pursuant to it. I perfectly agree with the opinion of Judge Chase, declared in the case of U.S. v. Worrall for an attempt to bribe Tench Coxe, the commissioner of the revenue, reported in 2 Dall. [2 U.S.] 384.He said that though this offence was highly injurious to morals and deserving the severest punishment, yet it was not punishable by the constitution or laws of the United States; and therefore, as it was an indictment at common law, it could not be maintained in the federal courts. He would not say whether the offence at that time were punishable in a state court. It has, however, been held that these sorts of offences may be punished in the state courts, and it is so held by the party in power.
One of the counsel for the prosecution [Mr. Wirt] had made some very illiberal animadversions upon a position stated by Mr. Wickham, that the rule "that when a felony is created by statute, accessories to it, though not named, are punishable, and that all legal consequences of felony are attached to it by the common law, except where the special nature of the act leads to a different conclusion," is illustrated by a decision on the 28 Hen. VIII. c. 15, which makes piracy, and offence not punishable at common law, felony; that it has been solemnly adjudged that as this was not a common law offence, and not made in imitation or supply of it, it should not be construed according to the rules of the common law; and therefore that accessories to it are not punishable. Hawkins (in volume 1, P.C. c. 37, @@ 6, 7, page 153), says that "in the exposition of this statute it has been holden, first, that it does not alter the nature of the offence so as to make that which was before a felony only by the civil law now become a felony by the common law; for it must be still alleged as done upon the sea, and is no way cognizable by the common law, but only by virtue of this statute." "From the same ground, also, it follows that no persons shall, in respect of the statute, be construed to be or punished as accessories to piracies before or after, as they might have been if it had been made a felony by the statute -- that accessories to piracy being neither expressly named in the statute, nor by construction included in it, remain as before." This statute declares that "all felonies and robberies, &c., upon the sea, &c., where the admiralty have power, authority, or jurisdiction, shall be inquired, tried, heard, determined, and judged in such shires and places in the realm, in like form and condition as if such offence or offences had been committed or done in or upon the land." It proceeds further to state that the commissions to the admirals and others to be appointed should "authorize them to hear and determine such offences after the common course of the law of the land, used for felonies or robberies done and committed upon the same." It further provides that they shall be proceeded against as felons for felonies committed on the land; and that those that should be convicted of any such offence by verdict, confession, &c., "shall have and suffer such pains of death, losses of lands, goods, and chattels, as if they had been attainted and convicted of such offence done upon the land." Here is an act declaring that persons guilty of piracy shall suffer the same pains and forfeitures as if they had committed these acts of violence and robbery on the land; but it makes no mention of accessories before or after the fact; and therefore the courts of that country construed it not to extend to them. The constitution declares certain specific acts to be punishable: the making of actual war, and an actual adherence to the enemies of the country, giving them aid and comfort. But the constitution does not say that advising, procuring, &c., those acts to be committed shall be treason. The inference, therefore, is natural and inevitable, that such advisers and procurers are not traitors within the true meaning of the constitution, according to the maxim, "Expressio unius est exclusio alterius." But even if, as they have argued, common law principles were to be applied to expound the constitution, if I understand them rightly, they are a strong authority to show that accessories are not punishable, and that those persons only who do the acts of levying war and adherence to enemies are so. No principle of the common law is more clearly understood than that the expression of one thing is an exclusion of another, especially in penal laws.
Again, sir, a most powerful argument, to prove the legislative exposition of the constitution, is deducible from the act of congress referred to by the gentleman who introduced this subject. He observed that it was clear and evident, from a law passed soon after the adoption of the constitution, that the legislature did not consider that an accessory would be guilty as a traitor under the constitution as he would be in Great Britain; because they made a special provision that if any person should break gaol and rescue therefrom any person convicted of treason, he should be punished with death. Sir, in Great Britain the rescuing of a person convicted of treason is treason; and if the construction for which the counsel for the prosecution now contend had been deemed correct by the legislature, this provision would have been superfluous, and therefore would not have been made. But this act of congress goes still further, and provides that if any person shall be force set at liberty or rescue any person committed but not convicted for any of the offences aforesaid (treason being included,) every person so offending shall, on conviction, be punished in a small fine -- only the sum of five hundred dollars, and imprisonment a year. Sir, in Great Britain the man who breaks open a gaol and lets out a person committed therein for treason is a traitor, provided the person let out or rescued be afterwards convicted of treason. If our legislature had considered a rescuer as guilty of treason and punishable with death, would they have passed a law inflicting on him only the trivial punishment of a year's imprisonment and a fine of five hundred dollars? and yet he cannot be punished twice for it. If in truth and reality the receiver and protector of a traitor were guilty of treason under the constitution, how came the legislature to provide so small a punishment for the person who breaks open gaol and rescues a traitor? How inconsistent and improper is the infliction of so moderate a punishment on the gaolbreaker and rescuer, if the mere receiver or comforter of a traitor before he is put in prison at all is punishable with death.He who forcibly opposes the laws and rescues a traitor from gaol is only punished with imprisonment not exceeding a year and a fine not exceeding five hundred dollars; while he who merely receives or comforts the traitor before he is committed for the crime or after he has made his escape is punishable with death! because in Great Britain he who receives or comforts persons guilty of treason is a traitor and punished with death, as the unfortunate Lady Lisle was. And if our constitution embraces no other acts as amounting to treason than what are expressly mentioned in it, it results of necessity that only the two offences of actually levying war against, and of adhering to the enemies of the United States, constitute treason. This is in my mind conclusive to show that our construction is correct, and that accessories before or after the fact were not contemplated by the constitution as traitors.
Mr. Martin replied at length to the arguments of counsel on the other side, that the pending motion was unprecedented, and called upon the court to usurp unwarranted powers, in derogation of the rights of the jury. 3 He concluded his argument on this point by the following remarks in reply to what Mr. Hay had said touching the fearful consequences that were to be apprehended from encroachments by the court on the rights and duties of the jury:
But the gentleman feels no solicitude for the fate of traitors. No more did the bloodthirsty Jeffreys. That sanguinary and cruel judge treated every man who came to be tried before him as a traitor. He thought none innocent, and condemned all he could. But the man must be lost to all humanity who would not drop the tear of pity whilst he wielded the sword of justice. But this inexorable tyrant had no feeling, and regarded no principle. Sir, does not the gentleman know that any man, however innocent, may be hunted down as a traitor? Does he not know that any man may be oppressed by a charge brought against him before a court and jury, without any knowledge of the facts of which he is accused? Is not the case of such a person sufficient to excite solicitude in the bosom of every person? Does he suppose that no man can be charged who is innocent? Does not the law presume him to be innocent till he be convicted by the court and jury? He ought not to be proceeded against if he be not a traitor but an innocent man. Ought not the court, therefore, to feel the utmost solicitude to prevent the oppression of innocence? He wishes to introduce all the evidence before the jury; and we wish to prevent it. I have no doubt but he wishes it; but if his wish be wrong, it is the sacred duty of your honors to prevent it from being gratified, and to reject impertinent and irrelevant testimony on a trial for life and death. The gentleman has himself recognized this principle. He did observe that when evidence is brought forward, the court will restrain it if impertinent to the issue tried before it.This is the very position for which we contend. It is too clear to admit of controversy, and decisive of the question before the court. The evidence of transactions out of this state does not establish what was done on Blennerhassett's Island; and therefore the testimony which they offer does not apply to the issue taken on the charge in the indictment.
I shall submit one observation on another point which I had like to have forgotten, and make a candid representation of what Mr. Wickham said about Blennerhassett. None of us said that we considered Blennerhassett to be guilty, as has been unjustly insinuated. He only stated what the law was. He denied that any person was guilty; alleged that no overt act was committed by person; but still insisted on the legal consequences of the absence of Colonel Burr. I believe Blennerhassett to be as innocent as the books or instruments of music to which he is said to be so passionately addicted. But the gentleman expressed, with great zeal and pathos, that he pledged his own life and the lives of his children and posterity on the propriety of the doctrine which he advocated: that if they avoid conspiracies, that if they be innocent, they will be safe. Most delusive doctrine! It does not follow that because a man is innocent he will be safe. The experience of all ages forbids so extravagant an expectation. Without a rigid adherence to those rules which have been wisely established for the protection of innocence, there never can be safety. I pray God that neither his own life nor the lives of his children or posterity may depend on the propriety or permanency of his doctrines. He should reflect on the instability of human affairs, the vicissitudes of fortune, and the mutability of popular applause. Permanent security can only result from a wise system, calculated for all times, and to promote the happiness of all parties. If he be now "in the full tide of successful experiment," in the enjoyment of the approbation of his country and government, so was, not long ago, the gentleman whom I advocate. He was as highly distinguished by the kind favor of the people as he could be by their suffrages. 4 It was then incredible that their favor should so soon be changed by the calumny and rancor of party into the most malignant hatred. The gentleman may now think himself perfectly safe, by the prevalence of his party and principles; but the day very possibly may come, when he may find himself as obnoxious as the gentleman whom I defend. He may, possibly, by the same means, the malice, injustice, and violence of party spirit, like my client, not only find himself reviled and calumniated, but his dearest friends abused and persecuted. I should be sorry that such prediction should be realized with respect to any gentleman; but such are the natural consequences of his own pernicious doctrines; and these we oppose. It is for the security of innocence that we contend. If innocence had never been persecuted, if innocence were never in danger, why were so many checks provided in the constitution for its security? We know the summary and sanguinary proceedings of former times, as recorded in faithful history. In those times of oppression and cruelty, they never troubled courts or juries with their accusations, proofs and legal forms, but declared the intended victim guilty of treason, and proceeded to execution at once. We wish to prevent a repetition of those scenes of injustice and horror.
Mr. Martin closed his long and exhaustive argument by the following remarks:
Before concluding, let me
observe that it has been my intention to argue the
cause correctly, without hurting the feelings of any
person in the world. We are unfortunately
situated. We labor against great prejudices
against my client, which tend to prevent him from
having a fair trial. I have with pain heard it
said that such are the public prejudices against
Colonel Burr, that a jury, even should they be
satisfied of his innocence, must have considerable
firmness of mind to pronounce him not guilty. I
have heard it not without horror. God of heaven!
have we already under our form of government (which we
have so often been told is best calculated of all
governments to secure all our rights) arrived at
a period when a trial in a court of justice, where
life is at stake, shall be but a solemn mockery, a
mere idle form and ceremony to transfer
innocence from the gaol to the gibbet, to gratify
popular indignation, excited by bloodthirsty
enemies! But if it require in such a situation
firmness in a jury, so does it equally require
fortitude in judges to perform their duty. And here
permit me again, most solemnly, and at the same time
most respectfully, to observe that, in the case
of life and death, where there remains one single
doubt in the minds of the jury as to facts, or of the
court as to law, it is their duty to decide in favor
of life. If they do not, and the prisoner fall
a victim, they are guilty of murder is foro
coeli whatever their guilt may be in foro legis.
When the sun mildly shines upon us, when the gentle
zephyrs play around us, we can easily proceed forward
in the straight path of our duty; but when bleak
clouds enshroud the sky with darkness, when the
tempest rages, the winds howl, and the waves break
over us -- when the thunders awfully roar over
our heads and the lightnings of heaven blaze around us
-- it is then that all the energies of the human soul
are called into action. It is then that the
truly brave man stands firm at his post. It is
then that, by an unshaken performance of his duty, man
approaches the nearest possible to the Divinity.
Nor is there any object in the creation on which the
Supreme Being can look down with more delight and
approbation than on a human being in such a
situation and thus acting. May that God who now
looks upon us, who has in his infinite wisdom called
you into existence and placed you in that seat to
dispense justice to your fellow citizens, to preserve
and protect innocence against persecution -- may that
God so illuminate your understandings that you may
know what is rights; and may he herve your souls with
firmness and fortitude to act according to that
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