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indicted in the same indictment with the principal offender, he ought to be "indicted specially of the receipt." And in the 2d vol. p. 223, heretofore quoted, he sufficiently shows that the procurer ought also to be specially charged. Sir, is it not necessary to inquire what is the consequence of the conduct of Colonel Burr? If it be accessorial, the indictment must show the "quomodo." Why is any indictment in any case necessary? Why must indictments distinguish between principal actors in treason and those who are but accessorial agents? Because it informs them of the nature of the accu

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.

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 if there should be a departure from this construction. It never can be supposed that its framers intended that this fancy and imagination should be indulged in its future exposition. But, say gentlemen, whether he be an accessory or a principal, the indictment stands right. I deny it, sir. We have the soundest reasons to say that it cannot be supported in either case. Regarding him as a principal, he evidence cannot support it; and as it does not charge him as an accessory, no evidence of accessorial acts could prove it. The specification of the offence, according 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 quo- Nor does this doctrine rest on English autations 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 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 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 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

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

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

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.) 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 sepaus 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 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.

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

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 effectually to do so. A great conspiracy with vast numbers and means is feigned. A particular day is announced as the time of attack. The militia are brought together. They "sur-The rapidity deceives the sight. He who round the city, spread the alarm in the coffeehouses and other public places; guard the river, for they are coming in the next flood of the Mississippi." Thus terror and apprehension were excited by every stratagem imaginable. Are we to be sacrificed by base and insidious arts like these? by the artifices of a man interested in our destruction to effect his own preservation?

I have done, sir. I find myself hurt that I could not give a greater scope to my feelings on this all-important subject. I will only add one remark, which I hope will be excused and considered as applying to all who occupy the sacred seat of justice. Judges have passed through the temple of virtue and arrived at

cree from the free will of the people, that the floor of that temple is slippery. Some may suppose that because the wheel of fortune is not seen immediately to move, it is at rest. means to stand firm in that temple must place his hand on the statue of wisdom, the pedestal of which is a lion. These are the only qualities by which they can be useful in their honorable station. Popular effusion and the violence and clamor of party they will disregard. It is the more necessary, as judges may hereafter mingle in politics; and they are but men, and the people are divided into parties. In the conflicts of political animosity, justice is sometimes forgotten or sacrificed to mistaken zeal and prejudice. We look up to the judiciary to guard us. One thing I am certain of, that you will not look at consequences; that you will determine "fiat justitia," let the result be what it may.

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