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srime. What is the reason why, when an of- it was left to the future care of the legislature fence is made felony by the statute, it has all to enact laws on the subject and punish acts 01 the consequences of a felony at common law? accessorial agency; so that nothing should bo When the legislature declare a particular of- referred to the imagination. When laws shoulu fence in positive terms to be a felony, then it take place, they would be understood in tho must necessarily in the nature of things, like plain and natural sense of the terms employed all other felonies, partake of their incidents, to express them. 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. their innpunity ; but if they were to escape by The courts make an exception in favor of the legislative failure or want of power, it would accused, when there is the smallest departure be better than that this court should transcend from the letter of the statute. Is it not a prin- its authority and construe that to be treason ciple that wherever a part fails to apply, the which is not so within the true meaning of the rest will be construed not to apply? If in constitution; which it would do, if it were to England, a particular crime be created a felony, consider Colonel Burr as present and an actor. that is the generical description of the offence; Both Mr. Hay and Mr. Wirt allege, that he and by the principles of the common law, all ought not to be considered as an accessory; the consequences of a felony at common law that he is the prime mover and projector; and, follow. So that the common law is applied to therefore, he ought not to escape punishment. and ingrafted on the statute. But as the com- If he escape, is it not because the law declares mon law does not exist in the United States, it that he ought to escape ? Ought they to comcannot be constructively applied to treason. It plain, if the law pronounce him to be innois true that common law terms are adopted in cent? Is the acquittal of the accused, in a the constitution and certain laws made under capital case, matter of regret? Ought any it; but they are not used in reference to the man to be punished but according to law? common law as a system, but in the common By what rule, then, shall this question be acceptation as mere terms of art; of which the decided? By example? Washington himself true meaning may be found in any dictionary. was assailed many years before he died. JefAnd in relation to treason, the words used ferson has been also assailed; and Robertson, mean only a classification of the crime. They whose character was above censure, was also have no connection with the common law. assailed. His history was assailed; but he left How, then, is it to be interpreted? The gen- it to mankind to judge for him; and posterity tleman asks what the members of the conven- will do him justice. (See his letter to Gibbon.) tion would have said of this case. I am not And many other great and eminent characters sure wliat the members of the convention would have been in like manner assailed. So that have said of this construction, nor that any in- neither virtue nor talents can secure from cendividual there would have said what his opin- sure and obloquy. ion was; but this I will undertake to say, that | By prudence? What would prudence accomthere never was a more fruitful source of op- plish? Criticism is severe and unjust every pression than this interpretation. The mem- where; and many, from mere motives of indobers of the convention would have particularly lence, are indisposed to inquire: some from provided for such a case, if they had intended party spirit, malignity in general, and particuso uncommon a construction. They would lar enmity. Every thing, even what had no have expressed it in the instrument itself, if affinity to the subject, would have been raked they had contemplated a construction never up, that could injure Colonel Burr. heard of before ; for you meet no instance of By the effect? Assertion is nothing. Testiit in all the books. But there is no need of mony, complete and satisfactory, is not to be construction. The terms are plain. Construc- collected. What would have been the effect tive presence is neither expressed nor necessary of the affidavits published against him in the to be implied. It was never thought of. But public prints, though taken ex parte ? If beI will answer to the gentleman's question, what lieved, for a moment, he ought not to have atthe members of the convention would have tended to them. The facility of denying that said, that, rather than that it was a “casus such a partial examination of witnesses ought omissus," it was not intended to punish such to be considered an acquittal would have renoffences. If it be asked why it was not men- dered his efforts unavailing. 'tioned, 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 his exposition, it may be said that led them to listen to him but curiosity. Gov
ernment ought not to be answered till it call. / that he was on the ground; that he directed All the protestations of innocence on earth its movements and laid the plan of the battle, would have had no effect. They would have as much as if he had been in the heat of the been as unavailing as in a case of murder; but action. He was present, and the principal on every proper occasion, Burr did communi- actor. When you consider this case according cate and answer every call.
to the English decisions, you can never believe By imparting to confidential friends? It will that Mr. Burr can be considered as being at be shown that he has done this always. After Blannerhassett's island. he had done it, they assailed him worse. If But we are told that he is not said to be at arguments like these prevail, do not use a cob- Blannerhassett's island; that he is not alleged web veil; but give an air of magnanimity to to have been there. The indictment charges your conduct by avowing a resolve to condemn him with having committed treason on Blanand save trouble. Choose to be a Robespierre nerhassett's island, with a great multitude of or a jury of Stuarts. If he make such com- persons traitorously assembled and gathered munications, he is violently assailed. If he be together, armed and arrayed in a warlike mansilent, he is charged with mysterious conduct. ner; that he and those persons joined together It is true, that by the law of England, all per- at Blannerhassett's island; and that he did sons concerned, principal and accessories, are with them, then and there, ordain, prepare, and equally punishable. As Mr. Hay says, the evy war against the United States. Is not this crime covers the whole ground; what is not a declaration that he was present ? Could he occupied by the one is held by the other. have joined them there without being present What then? Does he mean to say, that be- with them? You must understand most clearly, cause it is not so here, because the whole from the terms of the indictment, that he was ground is not covered here, you must stretch actually there. It admits of no other constructhe law sufficiently to cover it? Is this his tion. But, sir, the American decisions have plan for supplying omitted cases ? Suppose an been quoted upon this point. It is said that act merely preparatory, as writing a letter to the opinion of the Supreme Court, in the case advise or deputing an agent to encourage by a of Bollman and Swartwout, was that any perperson who had never carried arms, nor been son “who performs any part, however minute, at Blannerhassett's, nor joined them at the and however remote from the scene of action, mouth of Cumberland or any other place, could and who is leagued in the general conspiracy, he be indicted as a principal who had carried shall be considered as a traitor.” The import arms and levied war? However unlawful such of these words, “perform any part, however an act might be, it certainly could not amount minute, or however remote from the scene of to levying war. What the law would be on action," as meant by the Supreme Court, has such occasion, I will not venture to say; but I certainly been misunderstood by gentlemen. ask, where is the book that declares it to be an Does the opinion of the Supreme Court mean act of levying war? Compare that part which by these words, “minute and remote part," you consider as authority, with that case, or that a party may be indicted as present who that now before the court, and you will find was absent? or that he who did not act, but that neither case would be treason of levying merely advised, shall be indicted as having war. Though a person who forms a scheme actually performed a part? The language of and conducts it to maturity, and is at the head that court does not warrant the inference that of his party, may be considered as a principal, the indictment may be so drawn as to mislead, yet he who only performs a mere preparatory instead of giving the accused notice of the proof act, as writing a letter, giving an advice rela- to be exhibited against him, that he may pretive to the acts at Blannerhassett's island, can- pare his defence. Does it mean that a person, not be deemed guilty of levying war. He can- at the distance of five hundred miles, shall be not have levied war, when he has done nothing considered as present? Does it mean that they more than to advise. To advise treason, when shall be punished according to the degree of treason is not actually begun, cannot be con- | their guilt ? Does it mean to say that persons, sidered more than as an accessorial act. Is in the character of accessories, shall be punthere not a plain difference between these two ished ? Does it mean to say that there are no cases ?
accessories in treason, and that all are princiThe man who instigates another to murder a pals? What then is the meaning of the opinion? man, is considered only as an accessory; be- It must be this: by “remote from the scene of cause not in a situation to afford immediate as- action," must be intended that any person, disistance to the person who perpetrates the act. rectly and indissolubly connected with the party If you apply this reasoning to Colonel Burr, as perpetrating the act, though not at the spot, he was at a great distance, and could not give but near enough to give immediate aid at the immediate aid to the actors, the same conclu- time and place, if necessary, is to be considered sion must result: that he could not be consid- as engaged in the plot and guilty of treason. ered in any other light than that of an accessory | The judges viewed this subject without conbefore the fact. The gentleman says that Bona- sidering the question whether a man could be a parte was not present at the battle of Auster-principal notwithstanding his absence. Such litz. We know that he commanded the army; / an idea never occurred. The constitution ought to be construed according to the plain and ob- I 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 Eng-The indictment against the adviser or procurer land, and will never be deemed less useful by ought to notify him of the act of which he is the people of this country. Are we to regard considered the indirect perpetrator. You must British forms and precedents? You have seen show the manner in which he is liable. what they are. There have been several quo- Nor does this doctrine rest on English antations from Hale and others on this point. thority alone. It is not merely founded on the But one quotation from 1 Hale, p. 238, would | common law, as has been urged. It is supestablish my position, were it properly under-ported by the principles of pleading, which we stood, though it is relied on by them to show have adopted. The forms of pleading show the that an accessory before the fact may be in- sense of courts, as guides to reason. The eighth dicted generally or specially. This authority amendment of the constitution also requires it. shows that an accessory after the fact must be It not only secures the enjoyment "of a speedy specially charged ; that the indictment against and public trial by an impartial jury of the the receiver of a traitor “must be special of the State and district wherein the crime shall receipt.” But they contend that the accessory have been committed,” but also that the acbefore the fact may be generally charged from cused “shall be informed of the nature and these subsequent words, “and not generally cause of the accusation, confronted with the that he did the thing, which may be otherwise, witnesses against him," &c. in case of one that is a procurer, counsellor, or Consider this subject attentively. Reflect on consenter." He refers to Conier's case, as well the mode of prosecution which is advocated, as to Arden's case, in support of the principle and see whether it do not deprive us of this that receivers of traitors must be specially constitutional privilege. The language of any charged. But he refers to no authority as to man, addressed to the accused on this subject, an accessory before the fact. Authorities were would be, “You are charged with treason, but read yesterday, to show that indictments for you are to be informed of the nature and cause receiving and procuring must stand on the of the accusation, so as to enable you to presame footing. Mr. Martin having so fully ex-pare your defence." The indictment is shown plained them, it will be sufficient for me to ob- him. It tells him that he actually levied war serve what may have escaped his notice. The by raising men and committing acts on a parwords on which they found their argument, ticular day and at a particular place. Knowing are, “which may be otherwise in case of one his innocence of the charge, he pleads not that is a procurer," &c. Can this passage be guilty, and produces testimony to prove that he absurd enough to mean, that though a receiver was not there; that during the whole time he shall be specially indicted, so as to be informed was many hundred miles distant, or perhaps of the charge to be proved against him, yet a beyond sea. Against all this, when he comes procurer, whose offence is more heinous, is not to be tried, he is told, “It was not you that to be notified of the accusation against him, but raised the army. We do not mean that you may be surprised by a general charge? He were there in person. You needed not to have does not show in what manner it is to be other- summoned twenty or thirty witnesses to prove wise, nor that it shall be, but that it may be that you were not present. But you did what otherwise. That he intended to speak of in- we insist is the same thing as levying war. dictments for compassing the death of the king You wrote a letter, in which you advised the is unquestionable. It has been already suffi- thing to be done." He would very naturally ciently shown, that such indictments charge answer, “If that be your meaning, I have been the compassing or imagining the death of the misled and deceived; I am not prepared for king in general terms; and that almost any trial, and I pray that the cause may be conthing, evincing an intention to kill him, or to | tinued." But he is told, “Your prayer cannot subvert his government, is sufficient to support be granted. The jury are sworn, and you must such a general accusation,
take your trial." The case in Kelynge, before referred to, sup- Now, sir, should it be in the power of any ports our construction; and Hale, in the place government thus to mislead and destroy any man it may select for its victim ? (I do not ments of the opposite counsel; he then concludpretend to say that such is the disposition of ed his speech as follows.] this government; nay, I am sure that it is not.)! Let me add a few words with respect to the But no child, who could read the constitution, necessity of force, to what has been already would suppose that it could be ever so con- said on that subject. According to what has strued. Yet, sir, what babies we were if we been often observed in the course of this trial, expected the constitution to be thus correctly | the crime consists of the beginning, the proconstrued! If this construction be adopted gress, and consummation, in the course of which and this species of indictment admitted, it will some force must be exhibited. A man might pervert this very palladium of our safety into begin a crime and stop short, and be far from an instrument of destruction. Mr. Hay knows committing the act. He might go on one step that I intend nothing offensive to him; but still further, without incurring guilt. It is when he tells me that his indictment fits this only the completion of the crime that the law case, he deceives us. He deludes us into a punishes. Suppose an army were embodied by trial in ignorance of the accusation, and drags Mr. Burr, and they only assembled and sepaas blindfold to the scaffold. This is the most rated without having committed any act; what intolerable hardship. Examine history from would the government have to complain of? the beginning of the world, you will find noth- When they punish a man for murdering aning like the character of an American legisla- other, it is because he is dead. When a man ture, who, professing to be the votaries of lib- is punished for a robbery, it is because a pererty, and to admire the principles of a free son has been put in fear and his property taken constitution, would permit such horrid oppres- from him without his consent. “So it is with sion of their citizens; to keep them in the respect to every other crime; while it is in an dark, to hold out the semblance of security to incipient state it is disregarded. No person is innocence, but to expose it to inevitable de- punishable who is only charged with such an struction! Sir, I could mention a thousand inchoate incomplete offence. The intention is acts of oppression that would not be so severe never punished. In such cases time is allowed as this. The party accused is entrapped and for repentance, at any time before its consumensnared. He is taken by surprise, and forced mation. Such an offence as this is never puninto a trial with the rope round his neck, with- ishable, unless in the case of a conspiracy; and out any means of preparation or defence. This even on a prosecution charging that offence is substance; not a phantom of the imagination. specially, the act of conspiring must be satisfacThe forms of trial, the instruments of nominal torily established. Here no injury has arisen justice, are to be wrought up into an engine of to the commonwealth. No crime has been destruction. We call on you as guardians of perpetrated. The answer to this is, that there this constitution, as far as depends on your acts, were preparations to commit it. As far as : to preserve it from violation. I ask you to re- communications have been made to the governmember the difficulty of repairing the mischiefs ment, there is no possibility of proving a comof an oppressive construction, and permitting, plete act, yet those accused must be punished. unopposed, encroachments on the dearest privi- Then their rule of law is, that wherever there leges of the people. If this attempt be success is a beginning of a crime, it shall be punished ful, where will persecution stop? If this be lest it should grow to maturity! Is this the correct, fate has sealed it in your mind, and the spirit of American legislation and American law is only to force it. I feel myself so much justice? Is it the spirit of its free constitution roused by the idea of the effect that this doc- to consider the germ as the consummation of trine would have, that did I not know that it an offence the intention, so difficult to be ascame from a pure source, without any intention certained and so easy to be misrepresented and to injure or oppress, I would be alarmed. I misunderstood, as the act itself? In such a would say, as Paul said to Agrippa, Believest system it may be a source of lamentation that thou in the constitution? I know thou dost. no more than death can be inflicted on the I ask you to save this rock of our salvation. completion of the crime. Death, death, is to For myself I do not care. I have not much to be the universal punishment, the watchword of care, with respect to the remainder of my life. humane legislation and jurisprudence! But for my children I feel the affection and so When we mentioned the idea of force, I was licitude natural to a parent; and for my coun- not a little amazed at the manner in which try, those sentiments of patriotism which be- they attempted to repel the argument. It was come every good citizen. Let not the great said that they were prepared to show potential palladium of public liberty be undermined. I force; that fear was used ; that an assemblage pray you that the rights of the citizen may not was drawn together to act on the fears of the be immolated at the shrine of faction and per- people. This fear begins at New Orleans, secution; that innocence may not be ingulfed mounts the Mississippi against the stream, and by the adoption of the doctrine of the prosecu- fixes itself at Blannerhassett's island. Henry tors. American judges never can do this. I IV. fell a sacrifice to the predictions of the was going to use language too strong; Ameri- Jesuits. They determined to destroy him, and can judges dare not do it.
predicted that he would fall; and he did fall. [Mr. Randolph here replied to several argu- | I may safely admit that fear really existed at
New Orleans, because the man who was inter- that of honor; but we find that it is a just deested to excite it had it in his power most cree from the free will of the people, that the effectually to do so. A great conspiracy with floor of that temple is slippery. Some may vast numbers and means is feigned. A particu- suppose that because the wheel of fortune is lar day is announced as the time of attack. not seen immediately to move, it is at rest. The militia are brought together. They “sur- The rapidity deceives the sight. He who round the city, spread the alarm in the coffee- means to stand firm in that temple must place houses and other public places; guard the river, his hand on the statue of wisdom, the pedestal for they are coming in the next flood of the of which is a lion. These are the only qualities Mississippi.” Thus terror and apprehension by which they can be useful in their honorable were excited by every stratagem imaginable. station. Popular effusion and the violence and Are we to be sacrificed by base and insidious clamor of party they will disregard. It is the arts like these? by the artifices of a man inter more necessary, as judges may hereafter mingle ested in our destruction to effect his own pre- / in politics; and they are but men, and the peoservation
ple are divided into parties. In the conflicts I have done, sir. I find myself hurt that I of political animosity, justice is sometimes forcould not give a greater scope to my feelings gotten or sacrificed to mistaken zeal and prejuon this all-important subject. I will only add dice. We look up to the judiciary to guard us. one remark, which I hope will be excused and One thing I am certain of, that you will not considered as applying to all who occupy the look at consequences; that you will deterBacred seat of justice. Judges have passed mine "fiat justitia," let the result be what it through the temple of virtue and arrived at may,