itfort
Ours je. the plans of fLirdeliehtful peace,
thiwarp'd by party ra, to live like BfoOiCfj,
rrg- 1 "' 1 1 - " .t - I'tjy November 5, IR07 44-
V" Vol. IX. . ' , . t " -rM '' 1 ' 1 " ' ' ,1 ''''''''."&
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.,;lf
OPINION OF THECOlRT
On the'mytion -jxtil
o arrest the Evidence ,
1
in
burr's Crtat
delivered August 31, loOf.
CONCLUDED.
iim ::"",W' in touch the
1 r .whoadvUes ..rnro-:'ouitu? naturum sui principalis ; the
vase of a person
cures an assemblage, and does 1.0- ,
thins: further. The advising certainly,
ill a l ;t j
and perhaps the procuring, is more
in the nature cf a conspiracy to levy
Avar, than of . the actual levying ol
war. According to the 'pinion, it
is not enough to be leagued in the
conspiracy, and that vfar be levied,
but it is also necessary to perforin a
part ; that part is the act of levying
war. This part, it is triie, may be
minute, it may not be the actual ap
pearance in arms ; alid it may be
remote from the scene of action, th,t
is from the place where the army is
assembled ; but 'it must brs a part,
and that part must t?e performed by
a person who is leagued in the con -
spiracy. This part, however minv.te
or re mote, ccnstitines the overt act,
on which alone the person Who per
iorms if can be convicted;
Tiie opinion does not declare that
the" person who has performed this
remote and minute part, may be in
die led for a part which was In truth
performed by others, and convicted
orutheir overt icts. It amounts to
this and nothing more, that when war
is actually levied, not only those
who bear arms, but thftse also who
are leagued in the conspiracy, and
who perform the various distinct
parts winch are necessary for the
prosecution ot war, do in the sense
of tne constitution levy war. It tn'
possibly be the opinion of the su
preme court, that: those, who procure
a treasurr, and d6 "nothing further,
are guilty under the constitution ; 1
only sa that Opinion has not yet
been given ; still less has it been in
' dicatcd that he who adv'ucfc shall
be indicted having performed the
iact.
It is then the opinion of the court
that this indictment can be support
ed oidy by testimony which prove
the accused to have ben actually or
const ructtvdy piesent when the as
sem!)lage took pUce Of. BLmnerhus
seti's isiandr, or by the admission of
.the doctrine that he who proctrts
an act may be indicted as having
performed that actc
It is further the opinion of the
court, tiia! tnere is no tt.stim my
v.t tever which tends to prove that
the accused vus actually or con
structively present Vh;eh that assen
blage did take place.: Indeed tht
contra! y is most apfparerU. With
respect to atlmitt'ihg proof cf p;o
cu.f iirei. to establish a charge at
actual pre'iencvj the court is of opi
nion that if ttiisbe' admissible in Eng
land on au mdictmfrrt for !tvyi',g
war vfhich rs tar trom beinf co.i
reded, it is admissible Only by vir
tue of the operation cf the common
law upr.i he statute, and therefore
. is not admissible in ibis cocntry ui
less by yt tue of a similar operation ;
a pwnt lai from being eiiiablished,
but on Which, for the preSeot, no
o-vin-.on is given, If, however, this
point be established, still the f r1 -cirremcnt
must be proved in the same
nmanaer and by the same kind of -,es-timony
which would be required to
prove actual pTcseico,
The second point in this division
the subjec, is t!ie iiecessi y ol
tul'dcing tne record of the previous
couietkm of some one person who
committed tne fact ailedged to be
This jxin ptesuposcs the treV
tea i& the accused, if any has been
cmttfjit?&d? lo be accessorial in its.
Katui-e Its bemg of this descrio-
jt
siot, accord to the Emisii smtho
rities, deptftde on cite presence or
bsecc ot the accused at the trme
the fiici waa commifvd. The doc
triri on- this subjci is vsell rjrrder
U&xfy ha been most copiously t'x
ptatf?4 and n&t not be .repeated.
lha!te is bo evidence- ol his ac
ttrai or tega! presence is a point al
rra4y dhcysed and decided. It is
thr jparTiC that, ljut tor the ex
y SqKon to ?he general principle whh
iWho assembled at Blannerhassett's
j island, if that assemblage was such
! as to constitute the crime, would be
o r.ciials, U those who might really
have caused that assemblage, altho'
in truth the chiet traitors, wouia in
law be accessaries.
It is a settled principle in the law
that the accessary cannot be guilty
of a greater nfftnee than his princi
rial.
1 he maxim rs acaDuim
accessary toHows the nature of his
principal. Hence rcsuus me neces.
si'y of esta'. dishing the guilt of the
principal b-.fore the accessary can be
tried For the degree of guilt which
is incurred by counselling .or com
manding the commission of a crime,
depends upon the actual commis
sion of that crime No man is an
accessary to mmder unless the fact
has been committed.
The fact can only be established
in a prosecution against the person
by whom a crime has been ptrpe
trated. The law supposes a man
more capable of defending his wn
conduct than any other person, and
will net tolerate that the guilt of A
fehall be established in a prosecutio
against p. Consequently, if the guil
of B depcr.ds on the guilt cf A, A
must be convicted betore B can be
can be tru-d- It would exhibit
monstrcrus deformity, indeed, ir, on
system, if B might be executed for
being accessary to a murder co o
tviitted by A, and A should afts
wards, upon a full trial, be -"acepjitter
of the fret. Tor this obvious rea
son, altho' the pnnishmerrt of a prin
cipal and accessary was originally
the same, and although in many in
stances it 11 still the same, the ac
cessary could m no case be tried be
fore the conviction of his principal,
nor can he yet he tried previous to
such conviction, unless he require
it, or unless a special provision t
'that effect be made by statute.
If then thia was a felony, the pr
soner at the bar could not be trie
un il the crime was established b
the!con1ct'lonoTthe person by who
it was actually perpetrated. .
Is -the iavv otherwise in this ca-.',
because, in treason all are principal-
Let this question be answered n
reason and "by authority.
Why is It that in lel-r.ies. how
ever atrocious, 'the trial of the ac
cessary can never precede the con
viction of the principal ? Not because
the one is denominated the principal .
an:S the other thi? accessary, for thut j
woi!d be ground jen which a great 1
lav principle could never stand Not I
because there was in fact a differ j
ence in tsue degree of moral vxui.t,
for in the case of murder committed
by a hardy villain for a bribe, the
person plotting the murd.-r and giv
ing the bribe, is, perhaps, of the two
the blanker criminal and, were it o
therwise, this Would furnish no ar
gument for. precedence in trial8
VV hat then is the reason ?
It has been already eiven; The
, - 4 - J
legal guilt of the accessary depen Is
! on the guilt of 'he principal , k t,i -
guilt of the principal CB only be es
tablished in a: picsecution agai is.
himself.
Does riot this reason apply in fu
orce to a case ot trea&on ?
, The legal guilt ol the person vh .
planned the assemblage on Blanner
hassett'a iland depends, not simpl
on the criminality of the previous
Conspiracy, but on tr.e criminality oi
that assemblage. !f those who per
oetrated the fact b not traitors, ne
who advised the" fact cannot be ..
traitor. His guilt then, in contem
plation of law-j depends On theirs,
their guilt can only be establis.icu
in a prosecution against themselvv-.
Whether the adviser of this assem
blage be punishable with death js
principal or as an accessary, hit lia
bility to punishment depends on tht
degree oj" guilt attached to an act
which has been perpetrated by tither
and which, if it be a criminal a:
tenders iheKj guilfy also, fhs guilt
theref.re depends on theirs, 8c thir
gurU cannot be legally established u
a prosecution against liim
The whole reason of the law then
relative to the principal anci accessa
try, so far a& respects the orde ol
the -triiil, seems to apply in lull lore-:
to a case of treason -committed b
one body of n,?h in conspiracy wuu
ptiiers who are absent
II from leason we pass to autho
rity, we find it laid down by Hale,
Foster and East, in the most expli-!
cit terms, that the conviction cfi
some one w"ho has committed, the
treasOii rnust precede the trial of;
! him who has advised or procured it.
i This position '1s also maintained by
Leach, in his notes on Hawkins, St
s not, so far as the court -has disco
vered, any where contradicted.
Th se authorities have been resd
r.nd commented on at such length
that it cannot be necessary for the
co irt to bring them again into viw.
It is the less necessary because it is
i:ot understood that the law. is con
troverted by the counsel for the U.
States.
It is, Irow ever, contended, toat the
prisoner has waved his right to de
' mand the conviction ot some one
j person who was present at the fact,
i by pleading to his indictment
Had this indictment even charged
the prisoner according to the truth
the case, the ccurt Would feel
j s me difiiculty in deciding that he
h'.d by implication waved his rtgln
to demand-"a species of testimony
essential to his conviction. The
cVurt is not prepared to say that the
art which is to operate against his
r'i his, did not require that it should
be perfortotd with a full knowledge
ot its opera on, it would sem con
sa'iant to the usual course of pro
ceeding it': other respects in criminal
ccxsy that the prisoner should be
informed that he had a right to re
fuse to be tried untvrsome persoi
v!io commuted the r.ct should bt
convicted, and that ke ought not to
be 3nsidettd as waring the right
tm demand the record of 'conviction,
unless w'uli the full knowledge of
that right lie consented to be tried.
Tfcs court, 'however, does not decide
wh, the law would he in such a
cas t. It h unnecessary to decide it,
bee atse pleading to an indictmen'
j in vhich a man is charged as having
c 1 omitted an act cannot be con
! stn-ed to Wave a ricrht which he
wo'. Id have possessed, had he teen
charged with having advised the act.
No person indicted as a principal
c.-n be expected to say I am not a
.ui. cipl, I am an accessary ; I did
nut commit, I only advised the act.
t he authority ot the English ca
ses -"bject depends in a great mea
sure o the adoption of the common
law d ctrihe of accessorial treasons.
If that doctrine he excluded, this
bran:h of it may not be directly ;ip
plic hie tc "treasons committed with
in v : U. States. If the crime ot
ad', ing or procuring a levying of
vva ie within the constitutional de
fin i: on of treason, then he who ad-vis.-
or procures it must be indicted
o . ihe very act, and the question
w aether the treasonableness of the
ac may be decided in the first in-
stuice in the tri 1 of hi'ni who pro
cured it, or must be decided in the
trial of ciVe who committed it, will
depend upon the . rtnson, as it res
pect? the law of evidence, Which!
prod'.:CKl the British decisions With
regard to the trial of principal and
-accessary, rather than on the posi
tive . ithority of those decisions.
This question is not essential in
j the present case, because if the crime
ne wilhin me consiiiu'-iunm ileum
i t:on, it is an overt act ot levying
I war, md to produce a conviction,
ought to have been chirged in the
indictment.
Thw la w of the cas; being thus far
eettlec'-, what ought to he the deci
sion o the court on the present mo
lion ? Ought the court to set c hear
testimony which cannot affect the
prisoner, r ought t(i court to ai
rest that tes imony t On this ques
tioivmuch has been said much that
may perhaps b'ascribed 10 a mis
conception of the point really undei
consideration. The motion hasb.:et
treats as a motion confessedly made
to stop relevant testimony, and in
the course-, of the arguments it Jias
been rtpeatedly statea by those who
rifppo'ie the motion, that irrelevant
testfmojjy. may & ought to be stop
ped, 'j.'hat this statement is pei
fectly correct, is one f tho&e funda
mental principles irt judicial proceed
ings which is acknowledged by all
and is founded in the absolute neces-j
uy c-1 the thing No person will
.contend that in a civil or crimina
p casej ei Jier jart is at liberty to in.
troduce what testimony he pleases, j j
tegaX or illegal, and "to consume tlic j I
whole term in details of facts uncon- ;
nected Avith the particular case.
Some tribunal then m'ust decide on
the admissibility of testimony. The
parties cannot constitute tfcis tribu
nal, for ihey do not agree. The jury
cannot constitute, tt, for fhe ques-
tion is whether they shall hear the
testimony gt not. Who hen but
the court chn constitute it ? tl is cf
necessrty the peculiar province w ,;
the covrt to jud-e of the admissibi- jj
lity of testimony. 5f the court ad '
mit improper, or reject proper tes- ij
timony, it is an error of judgment,
hut it is an rror committed in the
direct exercise of their judicial func
tions. The present indictment charges
he prisoner with levying war against
the U. States, and alltdge's. an overt
act of levying war. That overt act
must be proved, according to the
mandates of the constitution and of
the act of congress, by two witness
es. It is not proved by a single wit
ness. The presence of the accused
has been stated to be an essential
"component part of the overt act in
this indictment, unless the common
law principle respecting accessaries
should render it unnect'ssar? ? and
there is not only, no witness who "has
proved Ms ac.uai or legal presence,
but fhe fact of his absence rs not con
troverted. T he counsel fer the pro
secution offTr to give m evidence
subsequent transactions, at a d;ffer
ent place, and in a different ate,
in order to prove what ? The overt
act laid in the indictment ? That the
prisoner was one of those who as
se'mbled at Blannerbas tt's isi-md ?
No ; that is not ailedged. . It is wejl
known tnat such testimony is not
competent to establish such a fact.
The constitution and law r quire
that the fact should be established
by two witnesses, not by the estab
li hment of o'her facts from which
the jury might reason to 'his fact
The testimony then is not relevant
If it can be introduced. It is only in
the characer of corroborative or con
firrnatory testimony, after the overt
act has been proved by two witness
es, in such manner that the ques
tion of fact ought to be left with tht
jury. . The conclusion that in this
state of things no te-'timony can bt
admissible, is so ihevitaLle, that the
counsel for the U, States could not. !
resist it. I do not understand them
to deny, that if the owrt act be not
proved by two witnesses, so as to
be submitted o the jury, that all o-
ther testimony must, he irrelevant,'
because no btht r testimony can provt
tne act. is'ow an assemblage or.
Bla'Rnerhasseli's island is proved by
the rttjuisite number of witneUes,
and the court might submit it to the
jury, whether that assemblage a-
mounted to a levying of war, but the
presence of the accused at that as
semblage being no where ailedged
except in the incHurnent, the overt
act is not proved by a single witness,
nd of consequence all other tetti
mqrty must be irrelevant.
The only diHerence between this
motion as made, arid the motion in
the form which the counsel for the
U. S. would admit to be regular, is
this. It is now general for the re
jection of all testimony. It might
be particular with respect to each
witness as adduced. But can this
be wished, or can it be deemed ne
cessary ? If enough h proved to
snov7 that the indictment cannot be
supported, shd that n6 testimony,
unless it be of that description which
tire attorney tor the IT. S. d-eclares
himself not to possess, can be rele
vant, why should a question be ta-
1 fcen on each witness?
The opinion of the court tin the
order of testimony has frequently
been adverted to as deciding the
questien ag&in&t the motion.
If a contradict ion between the two
opinions dots exist, the cs'urt cannot
perceive it. It was sai that levying-
war is an act compounded of law &
fact, of which the iury aided hy the
court must fudge. To that declara4i
I tion me court still adheres
It Was said that if the overt act
wars not proved by two witnesses, no
testimony, in Us nature corrobora
tive m confirmatory,' was admissible
or could be relevant;
l-rcrja thj; Jaratioa there
cerainlv no d 3arture. It has beer.
allied, in illusion to tire rr$ent c se
if a treneral c mmandinp- an arn'
I I Q
should detach troops Tor it distant
service, would the men.icerh bsmg
that detachiru nt be traitors St Would
the commander in tliief escape' puf
nishment i
Let the opinion Which haa beeii
j; given answer this qWst'on. Appca -
j sing at tfee bead of an arrfiy otjl 1,
accordm'g to this opinion-, be an o-
vtrt act of levying war 5 detaching
a mditary corps from it for military:
prposes 'might Stlso be an overt tctj
of levying war. It is not pretended
j that he would n&t be punishaEle
uisse arts, uis oniy saiu-Taa ne may
be tried and convicted on his own
acts- in "'the State where those acts
were conrmitted. not on the acts of
others in the State Where thse
thers acted. '
fvluch has been said in the eenrsp
ef the argument on points on which
the court feeh ho inclination to com-,
ment particularly,' but Which may
perhaps not improperly, receive
some notice.
That thi3 court dares n&t iisurp
iower is most true.
That t h i s court dares not s ri ot?
from its riuty is rvot less true.
No.. man' is, desirous C? placing
hiWiself m a disagreeable situation
No man is desirous of becoming the
pe- uliar feaibject of calumny No
man, might Ke let the bitter cu
pass from him. without self-reproach
would d?ain it to the bott,ora But i
he has no choice in the case j i
there is no alternative presented to
him but a dereliction of duty on thc
j opprobrium of those who arc cfeno
minated the world, he merits the
contempt as well as he iidignatioii
of his country Who caa hesitato
which to emb ace.
Tliat gentlemen., in a case the ut
most interesting, in the seal with
which they advocate particular opi
nions, and under the conviction irv
some measure produced by that 2eal
should on each side press their ar-
guments too far, should he impa
tient a, any deliberation in the court
and shou'd suspect or fear the ope
ration of m 'ves to which alone they
can ascribe that deliberation, is per
haps a frailty incident to human na
ture ; hui if any conduct 01a the part
of the court could warrant a senti
m'e'nt that tluv would deviate to the
-ne side of. the other from the liner
prescribed by duty anf by law, that
conduct would be viewed by the
judges themselves with an eve of
extreme severity, and would long
be recollected rrith deep and serious
regret.
The arguments on both sides have
beetj intently ih 1 deliberately consi
dered Those which coulo not be
noticed, since to notice every argu
ment and authority would swell this
opinion to a volume, have not been.
disregarded The result of the whole
is a conviction as complete as the
rhind of the court is capable of re
ceiving on a complex subject, that
the motion must prevail. ,
, Sfo testimony relative to the con
dact or declarations of the prisoner
elsewhere & subsequent to the trans
anctiori on B ahnerhssett's Island
can be admiited, because such te$
timony, being in its nature merel.
corrob ralive, and incompetent
prove the overt act in itseif,, it' irre
levant, until there be proof of the
overt act by two witnesses.
This pinion does net comprei
.iifs jiivm uj kwv vKiiocsses t .iai tjfc
j meeting on Blanrubrhassett ijja
it was procured bf the prise iT,'- ir
that point the court, for the present
. itwu ii. vpuluiv tdt reasons
which have been aleady ssiged r
and as it 1S unentooI from the
statements maJe on tht jaTt of the
prosecution, that no such testimony
exists. If there be such, let it be
offered ?,Yid ths coutt will decide
upon u
The jcrhavebw'nefird the opi- "
Tiion of fhe couri 00 the law of the
case. They will apply that law t6
the facts, and will fisd a terdict of
guilty or not guilty as ihctr own
consciences nK-y dUct.
Military
Exercise
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