| it was left to the future care of the legislature to enact laws on the subject and punish acts of accessorial agency; so that nothing should be referred to the imagination. When laws shoula take place, they would be understood in the plain and natural sense of the terms employed to express them.

their impunity; but if they were to escape by legislative failure or want of power, it would be better than that this court should transcend its authority and construe that to be treason which is not so within the true meaning of the constitution; which it would do, if it were to consider Colonel Burr as present and an actor.

Both Mr. Hay and Mr. Wirt allege, that he ought not to be considered as an accessory; that he is the prime mover and projector; and, therefore, he ought not to escape punishment. If he escape, is it not because the law declares that he ought to escape? Ought they to complain, if the law pronounce him to be innocent? Is the acquittal of the accused, in a capital case, matter of regret? Ought any man to be punished but according to law?

crime. What is the reason why, when an offence is made felony by the statute, it has all the consequences of a felony at common law? When the legislature declare a particular offence in positive terms to be a felony, then it must necessarily in the nature of things, like all other felonies, partake of their incidents, nature and consequences; for it would not be Mr. Hay and Mr. Wirt have availed thema felony without having the qualities and con- selves of a learned description of the statute of ditions of a felony. But though this be the in- the United States, and the effect of its different evitable construction when a felony is created clauses, in order to show the responsibility, as in general terms by a statute, yet if it be not principal traitors, of persons standing in the so expressed, it is not to be interpreted so as to situation of the accused; and that it is imposadvance the remedy. There never was a ques-sible that it could ever have been intended that tion upon it as applied to statutes in capital they should escape unpunished. The legislacases. The books are uniformly against it, be-ture may pass laws, at any time, to prevent cause penal laws must be strictly construed. The courts make an exception in favor of the accused, when there is the smallest departure from the letter of the statute. Is it not a principle that wherever a part fails to apply, the rest will be construed not to apply? If in England, a particular crime be created a felony, that is the generical description of the offence; and by the principles of the common law, all the consequences of a felony at common law follow. So that the common law is applied to and ingrafted on the statute. But as the common law does not exist in the United States, it cannot be constructively applied to treason. It is true that common law terms are adopted in the constitution and certain laws made under it; but they are not used in reference to the common law as a system, but in the common acceptation as mere terms of art; of which the true meaning may be found in any dictionary. And in relation to treason, the words used mean only a classification of the crime. They have no connection with the common law. How, then, is it to be interpreted? The gentleman asks what the members of the convention would have said of this case. I am not sure what the members of the convention would have said of this construction, nor that any individual there would have said what his opinion was; but this I will undertake to say, that there never was a more fruitful source of oppression than this interpretation. The members of the convention would have particularly provided for such a case, if they had intended so uncommon a construction. They would have expressed it in the instrument itself, if they had contemplated a construction never heard of before; for you meet no instance of it in all the books. But there is no need of construction. The terms are plain. Constructive presence is neither expressed nor necessary to be implied. It was never thought of. But I will answer to the gentleman's question, what the members of the convention would have said, that, rather than that it was a "casus omissus," it was not intended to punish such offences. If it be asked why it was not mentioned, it may be answered, because it was not By communicating his answer to their susintended to be considered as guilt. But, with-picions, to men in office? Nothing would have out adopting this exposition, it may be said that led them to listen to him but curiosity. Gov

By what rule, then, shall this question be decided? By example? Washington himself was assailed many years before he died. Jefferson has been also assailed; and Robertson, whose character was above censure, was also assailed. His history was assailed; but he left it to mankind to judge for him; and posterity will do him justice. (See his letter to Gibbon.) And many other great and eminent characters have been in like manner assailed. So that neither virtue nor talents can secure from censure and obloquy.

By prudence? What would prudence accomplish? Criticism is severe and unjust every where; and many, from mere motives of indolence, are indisposed to inquire: some from party spirit, malignity in general, and particular enmity. Every thing, even what had no affinity to the subject, would have been raked up, that could injure Colonel Burr.

By the effect? Assertion is nothing. Testimony, complete and satisfactory, is not to be collected. What would have been the effect of the affidavits published against him in the public prints, though taken ex parte? If believed, for a moment, he ought not to have attended to them. The facility of denying that such a partial examination of witnesses ought to be considered an acquittal would have rendered his efforts unavailing.

The indictment against the adviser or procurer ought to notify him of the act of which he is considered the indirect perpetrator. You must show the manner in which he is liable.

Nor does this doctrine rest on English authority alone. It is not merely founded on the common law, as has been urged. It is supported by the principles of pleading, which we have adopted. The forms of pleading show the sense of courts, as guides to reason. The eighth amendment of the constitution also requires it. It not only secures the enjoyment "of a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed," but also that the accused "shall be informed of the nature and cause of the accusation, confronted with the witnesses against him," &c.

to be construed according to the plain and ob- | just quoted, adds that if the receiver were to be vious import of its words. It will be in danger indicted in the same indictment with the prinif there should be a departure from this con- cipal offender, he ought to be "indicted specialstruction. It never can be supposed that its ly of the receipt." And in the 2d vol. p. 223, framers intended that this fancy and imagina- heretofore quoted, he sufficiently shows that tion should be indulged in its future exposition. the procurer ought also to be specially charged. But, say gentlemen, whether he be an acces- Sir, is it not necessary to inquire what is the sory or a principal, the indictment stands right. consequence of the conduct of Colonel Burr ? I deny it, sir. We have the soundest reasons If it be accessorial, the indictment must show to say that it cannot be supported in either case. the "quomodo." Why is any indictment in any Regarding him as a principal, he evidence can- case necessary? Why must indictments dis not support it; and as it does not charge him tinguish between principal actors in treason as an accessory, no evidence of accessorial acts and those who are but accessorial agents? Becould prove it. The specification of the offence, cause it informs them of the nature of the accuaccording to the evidence to be brought to sup-sation, and enables them to defend themselves. port it, has been always held necessary in England, and will never be deemed less useful by the people of this country. Are we to regard British forms and precedents? You have seen what they are. There have been several quotations from Hale and others on this point. But one quotation from 1 Hale, p. 238, would establish my position, were it properly understood, though it is relied on by them to show that an accessory before the fact may be indicted generally or specially. This authority shows that an accessory after the fact must be specially charged; that the indictment against the receiver of a traitor "must be special of the receipt." But they contend that the accessory before the fact may be generally charged from these subsequent words, "and not generally that he did the thing, which may be otherwise, in case of one that is a procurer, counsellor, or consenter." He refers to Conier's case, as well as to Arden's case, in support of the principle that receivers of traitors must be specially charged. But he refers to no authority as to an accessory before the fact. Authorities were read yesterday, to show that indictments for receiving and procuring must stand on the same footing. Mr. Martin having so fully explained them, it will be sufficient for me to observe what may have escaped his notice. The words on which they found their argument, are, "which may be otherwise in case of one that is a procurer," &c. Can this passage be absurd enough to mean, that though a receiver shall be specially indicted, so as to be informed of the charge to be proved against him, yet a procurer, whose offence is more heinous, is not to be notified of the accusation against him, but may be surprised by a general charge? He does not show in what manner it is to be otherwise, nor that it shall be, but that it may be otherwise. That he intended to speak of indictments for compassing the death of the king is unquestionable. It has been already sufficiently shown, that such indictments charge the compassing or imagining the death of the king in general terms; and that almost any thing, evincing an intention to kill him, or to subvert his government, is sufficient to support such a general accusation.

The case in Kelynge, before referred to, supports our construction; and Hale, in the place

Consider this subject attentively. Reflect on the mode of prosecution which is advocated, and see whether it do not deprive us of this constitutional privilege. The language of any man, addressed to the accused on this subject, would be, "You are charged with treason, but you are to be informed of the nature and cause of the accusation, so as to enable you to prepare your defence." The indictment is shown him. It tells him that he actually levied war by raising men and committing acts on a particular day and at a particular place. Knowing his innocence of the charge, he pleads not guilty, and produces testimony to prove that he was not there; that during the whole time he was many hundred miles distant, or perhaps beyond sea. Against all this, when he comes to be tried, he is told, "It was not you that raised the army. We do not mean that you were there in person. You needed not to have summoned twenty or thirty witnesses to prove that you were not present. But you did what we insist is the same thing as levying war. You wrote a letter, in which you advised the thing to be done." He would very naturally answer, "If that be your meaning, I have been misled and deceived; I am not prepared for trial, and I pray that the cause may be continued." But he is told, "Your prayer cannot be granted. The jury are sworn, and you must take your trial."

Now, sir, should it be in the power of any government thus to mislead and destroy any

man it may select for its victim? (I do not | pretend to say that such is the disposition of this government; nay, I am sure that it is not.) But no child, who could read the constitution, would suppose that it could be ever so construed. Yet, sir, what babies we were if we expected the constitution to be thus correctly construed! If this construction be adopted and this species of indictment admitted, it will pervert this very palladium of our safety into an instrument of destruction. Mr. Hay knows that I intend nothing offensive to him; but when he tells me that his indictment fits this case, he deceives us. He deludes us into a trial in ignorance of the accusation, and drags as blindfold to the scaffold. This is the most intolerable hardship. Examine history from the beginning of the world, you will find nothing like the character of an American legislature, who, professing to be the votaries of liberty, and to admire the principles of a free constitution, would permit such horrid oppression of their citizens; to keep them in the dark, to hold out the semblance of security to innocence, but to expose it to inevitable destruction! Sir, I could mention a thousand acts of oppression that would not be so severe as this. The party accused is entrapped and ensnared. He is taken by surprise, and forced into a trial with the rope round his neck, without any means of preparation or defence. This is substance; not a phantom of the imagination. The forms of trial, the instruments of nominal justice, are to be wrought up into an engine of destruction. We call on you as guardians of this constitution, as far as depends on your acts, to preserve it from violation. I ask you to remember the difficulty of repairing the mischiefs of an oppressive construction, and permitting, unopposed, encroachments on the dearest privileges of the people. If this attempt be successful, where will persecution stop? If this be correct, fate has sealed it in your mind, and the law is only to force it. I feel myself so much roused by the idea of the effect that this doctrine would have, that did I not know that it came from a pure source, without any intention to injure or oppress, I would be alarmed. I would say, as Paul said to Agrippa, Believest thou in the constitution? I know thou dost. I ask you to save this rock of our salvation. For myself I do not care. I have not much to care, with respect to the remainder of my life. But for my children I feel the affection and solicitude natural to a parent; and for my country, those sentiments of patriotism which become every good citizen. Let not the great palladium of public liberty be undermined. I pray you that the rights of the citizen may not be immolated at the shrine of faction and persecution; that innocence may not be ingulfed by the adoption of the doctrine of the prosecutors. American judges never can do this. I was going to use language too strong; American judges dare not do it.

ments of the opposite counsel; he then concluded his speech as follows.]

Let me add a few words with respect to the necessity of force, to what has been already said on that subject. According to what has been often observed in the course of this trial, the crime consists of the beginning, the progress, and consummation, in the course of which some force must be exhibited. A man might begin a crime and stop short, and be far from committing the act. He might go on one step still further, without incurring guilt. It is only the completion of the crime that the law punishes. Suppose an army were embodied by Mr. Burr, and they only assembled and separated without having committed any act; what would the government have to complain of? When they punish a man for murdering another, it is because he is dead. When a man is punished for a robbery, it is because a person has been put in fear and his property taken from him without his consent. So it is with respect to every other crime; while it is in an incipient state it is disregarded. No person is punishable who is only charged with such an inchoate incomplete offence. The intention is never punished. In such cases time is allowed for repentance, at any time before its consummation. Such an offence as this is never punishable, unless in the case of a conspiracy; and even on a prosecution charging that offence specially, the act of conspiring must be satisfactorily established. Here no injury has arisen to the commonwealth. No crime has been perpetrated. The answer to this is, that there were preparations to commit it. As far as communications have been made to the government, there is no possibility of proving a complete act, yet those accused must be punished. Then their rule of law is, that wherever there is a beginning of a crime, it shall be punished lest it should grow to maturity! Is this the spirit of American legislation and American justice? Is it the spirit of its free constitution to consider the germ as the consummation of an offence? the intention, so difficult to be ascertained and so easy to be misrepresented and misunderstood, as the act itself? In such a system it may be a source of lamentation that no more than death can be inflicted on the completion of the crime. Death, death, is to be the universal punishment, the watchword of humane legislation and jurisprudence!

When we mentioned the idea of force, I was not a little amazed at the manner in which they attempted to repel the argument. It was said that they were prepared to show potential force; that fear was used; that an assemblage was drawn together to act on the fears of the people. This fear begins at New Orleans, mounts the Mississippi against the stream, and fixes itself at Blannerhassett's island. Henry IV. fell a sacrifice to the predictions of the Jesuits. They determined to destroy him, and predicted that he would fall; and he did fall. [Mr. Randolph here replied to several argu-Ì may safely admit that fear really existed at