On the first division of the subject
two points are made:
1st. That, conformably to the constitution
of the United States, no man can be convicted of treason who was not present
when the war was levied.
2d. That if this construction be erroneous,
no testimony can be received to charge one man with the overt acts of others
until those overt acts as laid in the indictment be proved to the satisfaction
of the court.
The question which arises on the construction
of the constitution, in every point of view in which it can be contemplated,
is of infinite moment to the people of this country and to their government,
and requires the most temperate and the most deliberate consideration.
"Treason against the United States shall consist only in levying war against
them." What is the natural import of the words "levying war?" and who may
be said to levy it? Had their first application to treason been made
by our constitution they would certainly have admitted of some latitude
of construction. Taken most literally, they are, perhaps, of the
same import with the words "raising or creating war"; but as those who
join after the commencement are equally the objects of punishment, there
would probably be a general admission that the term also comprehended making
war or carrying on war. In the construction which courts would be required
to give these words, it is not improbable that those who should raise,
create, make, or carry on war, might be comprehended.The various acts which
would be considered as coming within the term would be settled by
a course of decisions; and it would be affirming boldly to say that those
only who actually constituted a portion of the military force appearing
in arms could be considered as levying war. There is no difficulty
in affirming that there must be a war or the crime of levying it cannot
exist; but there would often be considerable difficulty in affirming
that a particular act did or did not involve the person committing
it in the guilt and in the fact of levying war. If, for example,
an army should be actually raised for the avowed purpose of carrying
on open war against the United States and subverting their government,
the point must be weighed very deliberately, before a judge would venture
to decide that an overt act of levying war had not been committed by a
commissary of purchases, who never saw the army, but who, knowing its object,
and leaguing himself with the rebels, supplied that army with provisions,
or, by a recruiting officer holding a commission in the rebel service,
who, though never in camp, executed the particular duty assigned to him.
But the term is not for the first time applied
to treason by the constitution of the United States. It is a technical
term. It is used in a very old statute of that country whose language
is our language, and whose laws form the substratum of our laws.
It is scarcely conceivable that the term was not employed by the framers
of our constitution in the sense which had been affixed to it by
those from whom we borrowed it. So far as the meaning of any terms,
particularly terms of art, is completely ascertained, those by whom they
are employed must be considered as employing them in that ascertained meaning,
unless the contrary be proved by the context. It is, therefore, reasonable
to suppose, unless it be incompatible with other expressions of the constitution,
that the term "levying war" is used in that instrument in the same sense
in which it was understood in England, and in this country, to have been
used in the statute of the 25th of Edw. III. from which it was borrowed,.
It is said that this meaning is to be collected only from adjudged cases.
But this position cannot be conceded to the extent in which it is laid
down. The superior authority of adjudged cases will never be controverted.
But those celebrated elementary writers who have stated the principles
of the law, whose statements have received the common approbation of legal
men, are not to be disregarded. Principles laid down by such writers
as Coke, Hale, Foster, and Blackstone, are not lightly to be rejected.
These books are in the hands of every student. Legal opinions are
formed upon them; and those opinions are afterwards carried to the bar,
the bench and the legislature. In the exposition of terms, therefore,
used in instruments of the present day, the definitions and the dicta of
those authors, if not contradicted by adjudications, and if compatible
with the words of the statute, are entitled to respect. It
is to be regretted that they do not shed as much light on this part of
the subject as is to be wished. Coke does not give a complete definition
of the term, but puts cases which amount to levying war. "An
actual rebellion or insurrection, he says, is a levying of war." In whom?
Coke does not say whether in those only who appear in arms, or in all those
who take part in the rebellion or insurrection by real open deed.
Hale, in treating on the same subject, puts many cases which shall
constitute a levying of war, without which no act can amount to treason;
but he does not particularize the parts to be performed by the different
persons concerned in that war, which shall be sufficient to fix on each
the guilt of levying it. Foster says: "The joining with rebels in
an act of rebellion, or with enemies in acts of hostility, will make a
man a traitor." "Furnishing rebels or enemies with money, arms, ammunition
or other necessaries will prima facie make a man a traitor." Foster
does not say that he would be a traitor under the words of the statute,
independent of the legal rule which attaches the guilt of the principal
to an accessory, nor that his treason is occasioned by that rule.
In England this discrimination need not be made except for the purpose
of framing the indictment; and, therefore, in the English books we
do not perceive any effort to make it. Thus, surrendering a castle
to rebels, being in confederacy with them, is said by Hale and Foster to
be treason under the clause of levying war; but whether it be levying war
in fact, or aiding those who levy it, is not said. Upon this
point Blackstone is not more satisfactory. Although we find among
the commentators upon treason enough to satisfy the inquiry, what
is a state of internal war? yet no precise information can be acquired
from them which would enable us to decide with clearness whether persons
not in arms, but taking part in a rebellion, could be said to levy
war, independently of that doctrine which attaches to the accessory the
guilt of his principal. If in adjudged cases this question have been
taken up and directly decided, the court has not seen those cases.
The argument which may be drawn from the form of the indictment, though
strong, is not conclusive. In the precedent found in Tremaine, Mary
Speake, who was indicted for furnishing provisions to the party of the
Duke of Monmouth, is indicted for furnishing provisions to those who were
levying war, not for levying war herself. It may correctly be argued
that, had this act amounted to levying war, she would have been indicted
for levying war; and the furnishing of provisions would have been
laid as the overt act. The court felt this when the precedent was
produced. But the argument, though strong, is not conclusive, because,
in England, the inquiry, whether she had become a traitor by levying war,
or by giving aid and comfort to those who were levying war, 1
was unimportant; and because, too, it does not appear from the indictment
that she was actually concerned in the rebellion -- that she belonged to
the rebel part, or was guilty of anything further than a criminal speculation
in selling them provisions.
It is not deemed necessary to trace the doctrine,
that in treason all are principals, to its source. Its origin is
most probably stated coreectly by Judge Tucker in a work, the merit of
which is with pleasure acknowledged. But if a spurious doctrine have
been introduced into the common law, and have for centuries been admitted
as genuine, it would require great hardihood in a judge to reject
it. Accordingly, we find those of the English jurists who seem to
disapprove the principle declaring that it is now too firmly settled to
be shaken. It is unnecessary to trace this doctrine to its source
for another reason: the terms of the constitution comprise no question
respecting principal and accessory, so far as either may be truly
and in fact said to levy war. Whether in England a person would be indicted
in express terms for levying war or for assisting others in levying war,
yet if in correct and legal language he can be said to have levied
war, and if it have never been decided that the act would not amount to
levying war, his case may, without violent construction, be brought within
the letter and the plain meaning of the constitution. In examining
these words, the argument which may be drawn from felonies, as, for example,
from murder, is not more conclusive. Murder is the single act of
killing with malice aforethought. But war is a complex operation,
composed of many parts, co-operating with each other. No one man
or body of men can perform them all if the war be of any continuance.
Although, then, in correct and in law language, he alone is said to have
murdered another who has perpetrated the fact of killing, or has been present
aiding that fact, it does not follow that he alone can have levied war
who has borne arms. All those who perform the various and essential
military parts of prosecuting the war, which must be assigned to different
persons, may with correctness and accuracy be said to levy war. Taking
this view of the subject, it appears to the court that those who perform
a part in the prosecution of the war may correctly be said to levy
war and to commit treason under the constitution. It will be observed
that this opinion does not extend to the case of a person who performs
no act in the prosecution of the war -- who counsels and advises
it -- or who, being engaged in the conspiracy, fails to perform his part.
Whether such persons may be implicated by the doctrine that whatever would
make a man an accessory in felony makes him a principal in treason, or
are excluded because that doctrine is inapplicable to the United States,
the constitution having declared that treason shall consist only in levying
war, and having made the proof of overt acts necessary to conviction, is
a question of vast importance, which it would be proper for the supreme
court to take a fit occasion to decide, but which an inferior tribunal
would not willingly determine unless the case before them should require
it.
It may now be proper to notice the opinion
of the supreme court in the case of the United States against Bollman and
Swartwout. It is said that this opinion, in declaring that those
who do not bear arms may yet be guilty of treason, is contrary to law,
and is not obligatory because it is extra-judicial and was delivered
on a point not argued. This court is therefore required to depart
from the principle there laid down. It is true that, in that case,
after forming the opinion that no treason could be committed because no
treasonable assemblage had taken place, the court might have dispensed
with proceeding further in the doctrines of treason. But it is to
be remembered that the judges might act separately, and perhaps at the
same time on the various prosecutions which might be instituted, and that
no appeal lay from their decisions. Opposite judgments on the point would
have presented a state of things in finitely to be deplored by all.It was
not surprising, then, that they should have made some attempt to settle
principles which would probably occur, and which were in some degree connected
with the point before them. The court had employed some reasoning
to show that without the actual embodying of men war could not be levied.
It might have been inferred from this that those only who were so
embodied could be guilty of treason. Not only to exclude this inference,
but also to affirm the contrary, the court proceeded to observe: "It
is not the intention of the court to say that no individual can be guilty
of this crime who has not appeared in arms against his country.On the contrary,
if war be actually levied, that is, if a body of men be actually
assembled for the purpose of effecting by force a treasonable object,
all those who perform any part, however minute, or however remote from
the scene of action, and who are actually leagued in the general conspiracy,
are to be considered as traitors." This court is told that if this opinion
be incorrect it ought not to be obeyed, because it was extra-judicial.
For myself, I can say that I could not lightly be prevailed on to disobey
it, were I even convinced that it was erroneous; but I would certainly
use any means which the law placed in my power to carry the question again
before the supreme court for reconsideration, in a case in which
it would directly occur and be fully argued. The court which gave
this opinion was composed of four judges. At the time I thought them
unanimous, but I have since had reason to suspect that one of them, whose
opinion is entitled to great respect, and whose indisposition prevented
his entering into the discussions, on ssome of those points which were
not essential to the decision of the very case under consideration,
did not concur in this particular point with his brethren. Had the
opinion been unanimous, it would have been given by a majority of the judges.
But should the three who were absent concur with that judge who was present,
and who perhaps dissents from what was then the opinion of the court, a
majority of the judges may overrule this decision. I should, therefore,
feel no objection, although I then thought and still think the opinion
perfectly correct, to carry the point, if possible, again before the supreme
court, if the case should depend upon it. In saying that I still
think the opinion perfectly correct, I do not consider myself as
going further than the preceding reasoning goes. Some gentlemen
have argued as if the supreme court had adopted the whole doctrine
of the English books on the subject of accessories to treason. But
certainly such is not the fact. Those only who perform a part, and
who are leagued in the conspiracy, are declared to be traitors. To
complete the definition both circumstances must concur. They must
"perform a part," which will furnish the overt act; and they must be "leagued
in conspiracy." The person who comes within this description in the opinion
of the court levies war. The present motion, however, does not rest
upon this point; for if under this indictsment the United States might
be let in to prove the part performed by the prisoner, if he did perform
any part, the court could not stop the testimony, in its present stage.
The second point involves the character of the overt act which has been
given in evidence, and calls upon the court to declare whether that
act can amount to levying war. Although the court ought now to avoid
any analysis of the testimony which has been offered in this case, provided
the decision of the motion should not rest upon it, yet many reasons concur
in giving peculiar propriety to a delivery, in the course of these trials,
of a detailed opinion on the question, what is levying war? As this
question has been argued at great length, it may probably save much trouble
to the counsel now to give that opinion.
In opening the case, it was contended by the
attorney for the United States, and has since been maintained on the part
of the prosecution, that neither arms nor the application of force or violence
are indispensably necessary to constitute the fact of levying war.
To illustrate these positions, several cases have been stated, many of
which would clearly amount to treason. In all of them, except that
which was probably intended to be this case, and on which no observation
will be made, the object of the assemblage was clearly treasonable.
Its character was unequivocal, and was demonstrated by evidence furnished
by the assemblage itself. There was no necessity to rely upon information
drawn from extrinsic sources, or, in order to understand the fact, to pursue
a course of intricate reasoning and to conjecture motives. A force
is supposed to be collected for an avowed treasonable object, in a condition
to attempt that object, and to have commenced the attempt by moving towards
it. I state these particulars, because although the cases put
may establish the doctrine they are intended to support -- may prove that
the absence of arms, or the failure to apply force to sensible objects
by the actual commission of violence on those objects, may be supplied
by other circumstances -- yet they also serve to show that the mind requires
those circumstances to be satisfied that war is levied. Their construction
of the opinion of the supreme court is, I think, thus far correct.
It is certainly the opinion which was at the time entertained by myself;
and which is still entertained. If a rebel army, avowing its hostility
to the sovereign power, should front that of the government, should march
and countermarch before it, should manoeuvre in its face, and should then
disperse from any cause whatever without firing a gun -- I confess I could
not, without some surprise, hear gentlemen seriously contend that this
could not amount to an act of levying war. A case equally strong
may be put with respect to the absence of military weapons. If the
party be in a condition to execute the purposed treason without the usual
implements of war, I can perceive no reason for requiring those implements
in order to constitute the crime.
It is argued that no adjudged case can be
produced from the English books where actual violence has not been committed.
Suppose this were true. No adjudged case has, or, it is believed,
can be produced from those books in which it has been laid down that war
cannot be levied without the actual application of violence to external
objects. The silence of the reporters on this point may be readily
accounted for. In cases of actual rebellion against the government,
the most active and influential leaders are generally most actively engaged
in the war; and as the object can never be to extend punishment to extermination,
a sufficient number are found among those who have committed actual hostilities
to satisfy the avenging arm of justice. In cases of constructive
treason, such as pulling down meeting-houses, where the direct and
avowed object is not the destruction of the sovereign power, some act of
violence might be generally required to have to the cirme a sufficient
degree of malignity to convert it into treason, to render the guilt of
any individual unequivocal. But Vaughan's Case is a case where
there was no real application of violence, and where the act was adjudged
to be treason. Gentlemen argue that Vaughan was only guilty of adhering
to the king's enemies, but they have not the authority of the court for
so saying. The judges unquestionably treat the cruising of Vaughan
as an overt act of levying war. The opinions of the best elementary
writers concur in declaring that where a body of men are assembled for
the purpose of making war against the government, and are in a condition
to make that war, the assemblage is an act of levying war.
These opinions are contradicted by no adjudged case, and are supported
by Vaughan's Case. This court is not inclined to controvert them.
But although, in this respect, the opinion of the supreme court has not
been misunderstood on the part of the prosecution, that opinion seems not
to have been fully adverted to in a very essential point in which it is
said to have been misconceived by others. The opinion, I am informed,
has been construed to mean that any assemblage whatever for a treasonable
purpose, whether in force or not in force, whether in a condition to use
violence or not in that condition, is a levying of war. It
is this construction, which has not, indeed, been expressly advanced at
the bar, but which is said to have been adopted elsewhere, that the court
deems it necessary to examine.
Independent of authority, trusting only to
the dictates of reason, and expounding terms according to their ordinary
signification, we should probably all concur in the declaration that war
could not be levied without the employment and exhibition of force.
War is an appeal from reason to the sword; and he who makes the appeal
evidences the fact by the use of the means. His intention to go to
war may be proved by words; but the actual going to war is a fact
which is to be proved by open deed. The end is to be effected
by force; and it would seem that in cases where no declaration is to be
made, the state of actual war could only be created by the employment of
force, or being in a condition to employ it. But the term, having
been adopted by our constitution, must be understood in that sense in which
it was universally received in this country when the constitution was framed.
The sense in which it was received is to be collected from the most approved
authorities of that nation from which we have borrowed the term.
Lord Coke says that levying war against the king was treason at the common
law. "A compassing or conspiracy to levy war, he adds, is no
treason, for there must be a levying of war in fact." He proceeds to state
cases of constructive levying war, where the direct design is not
to overturn the government, but to effect some general object by force.
The terms he employs, in stating these cases, are such as indicate an impression
on his mind that actual violence is a necessary ingredient in constituting
the fact of levying war. He then proceeds to say: "An actual rebellion
or insurrection is a levying of war within this fact." "If any with strength
and weapons invasive and defensive doth hold and defend a castle or fort
against the king and his power, this is levying of war against the king."
These cases are put to illustrate what he denominates "a war in fact."
It is not easy to conceive "an actual invasion or insurrection" unconnected
with force; nor can "a castle or fort be defended with strength and weapons
invasive and defensive" without the employment of actual force. It
would seem, then, to have been the opinion of Lord Coke that to levy war
there must be an assemblage of men in a condition and with an intention
to employ force. He certainly puts no case of a different description.
Lord Hale says (1 Hale, P.C. p. 149, pl. 6:) "What shall be said a levying
of war is partly a question of fact, for it is not every unlawful or riotous
assembly of many persons to do an unlawful act, though de facto they commit
the act they intend, that makes a levying of war; for then every riot would
be treason, &c.," "but it must be such an assembly as carries with
it speciem belli, the appearance of war; as if they ride or march vexillis
explicatis, with colors flying, or if they be formed into companies or
furnished with military officers, or if they are armed with military weapons,
as swords, guns, bills, halberds, pikes, and are so circumstanced that
it may be reasonably concluded they are in a posture of war; which circumstances
are so various that it is hard to describe them all particularly."
"Only the general expressions in all the indictments of this nature
that I have seen are more guerrino arraiati," arrayed in warlike manner.
He afterwards adds: "If there be a war levied as is above declared,
viz, an assembly arrayed in warlike manner, and so in the posture of war
for any treasonable attempt, it is bellum levatum but not percussum." It
is obvious that Lord Hale supposed an assemblage of men in force, in a
military posture, to be necessary to constitute the fact of levying war.
The idea, he appears to suggest, that the apparatus of war is necessary,
has been very justly combated by an able judge who has written a valuable
treatise on the subject of treason; but, it is not recollected that his
position, that the assembly should be in a posture of war for any treasonable
attempt, has ever been denied. Hawkins (chapter 17, @ 23), says "that
not only those who rebel against the king, and take up arms to dethrone
him, but, also, in many other cases, those who, in a violent and forcible
manner, withstand his lawful authority, are said to levy war against him,
and therefore those that hold a fort or castle against the king's forces,
or keep together armed numbers of men, against the king's express command,
have been adjudged to levy war against him." The cases put by Hawkins are
all cases of actual force and violence. "Those who rebel against
the king, and take up arms to dethrone him." In many other cases those
"who, in a violent and forcible manner, withstand his lawful authority."
"Those that hold a fort or castle against his forces, or keep together
armed numbers of men against his express command." These cases are obviously
cases of force and violence. Hawkins next proceeds to describe
cases in which war is understood to be levied under the statute, although
it was not directly made against the government.This Lord Hale terms an
interpretative or constructive levying of war; and it will be perceived
that he puts no case in which actual force is dispensed with. "Those
also, he says, who make an insurrection in order to redress a public grievance,
whether it be a real or pretended one, and of their own authority
attempt with force to redress it, are said to levy war against the king,
although they have no direct design against his person, inasmuch as they
insolently invade his prerogative by attempting to do that by private authority
which he, by public justice, ought to do; which manifestly tends to a downright
rebellion. As where great numbers by force attempt to remove certain
persons from the king." &c. The cases here put by Hawkins, of
a constructive levying of war, do in terms require force as a constituent
part of the description of the offence.
Judge Foster, in his valuable treatise on
Treason, states the opinion which has been quoted from Lord Hale, and differs
from that writer so far as the latter might seem to require swords, drums,
colors, &c., what he terms the pomp and pageantry of war, as
essential circumstances to constitute the fact of levying war. In
the Cases of Damaree and Purchase, he says: "The want of those circumstances
weighed nothing with the court, although the prisoner's counsel insisted
much on that matter." But he adds: "The number of the insurgents supplied
the want of military weapons; and they were provided with axes, crows,
and other tools of the like nature, proper for the mischief they intended
to effect. Furor arma ministrat." It is apparent that Judge Foster
here alludes to an assemblage in force, or, as Lord Hale terms it, "in
a warlike posture;" that is, in a condition to attempt or proceed upon
the treason which had been contemplated. The same author after wards
states at large the Cases of Damaree and Purchase from 8 State Trials;
and they are cases where the insurgents not only assembled in force,
in the posture of war, or in a condition to execute the treasonable design,
but they did actually carry it into execution, and did resist the guards
who were sent to disperse them. Judge Foster states (section 4) all
insurrections to effect certain innovations of a public and general concern,
by an armed force, to be, in construction of law, high treason within the
clause of levying war. The cases put by Foster of constructive levying
of war all contain, as a material ingredient, the actual employment of
force. After going through this branch of his subject, he proceeds
to state the law in a case of actual levying war: that is, where the war
is intended directly against the government. He says (section 9):
"An assembly armed and arrayed in a warlike manner for a treasonable purpose
is bellum levatum, though not bellum percussum. Listing and marching
are sufficient overt acts, without coming to a battle or action.
So cruising on the king's subjects under a French commission, France being
then at war with us, was held to be adhering to the king's enemies, though
no other act of hostility be proved." "An assembly armed and arrayed in
a warlike manner for any treasonable purpose" is certainly in a state
of force: in a condition to execute the treason for which they assembled.
The words, "enlisting and marching." which are overt acts of levying
war, do, in the arrangement of the sentence, also imply a state of force;
though that state is not expressed in terms; for the succeeding words,
which state a particular event as not having happened, prove that event
to have been the next circumstance to those which had happened; they are
"without coming to a battle or action." "If men be enlisted and march,"
(that is, if they march prepared for battle or in a condition for action:
for marching is a technical term applied to the movement of a military
corps,) it is an overt act of levying war, though they do not come to a
battle or action. This exposition is rendered the stronger by what
seems to be put in the same sentence as a parallel case with respect to
adhering to an enemy.It is cruising under a commission from an enemy without
committing any other act of hostility. Cruising is the act of sailing in
warlike form and in a condition to assail those of whom the cruiser is
in quest. This exposition, which seems to be that intended
by Judge Foster, is rendered the more certain by a reference to the case
in the State Trials from which the extracts are taken. The words
used by the chief justice are: "When men form themselves into a body and
march rank and file with weapons offensive and defensive, this is
levying of war with open force, if the design be public." Mr. Phipps, the
counsel for the prisoner, afterwards observed: "Intending to levy war is
not treason unless a war be actually levied." To this the chief justice
answered: "Is it not actually levying cf war if they actually provide arms
and levy men, and in a warlike manner set out and cruise and come with
a design to destroy our ships?" Mr. Phipps still insisted "it would not
be an actual levying of war unless they committed some act of hostility."
"Yes, indeed," said the chief justice, "the going on board and being in
a posture to attack the king's ships." Mr. Baron Powis added: "But for
you to say that because they did not actually fight it is not a levying
of war! Is it not plain what they did intend? that they came with
that intention? that they came in that posture? that they came armed, and
had guns and blunderbusses, and surrounded the ship twice? They came
with an armed force; that is strong evidence of the design."
The point insisted on by counsel in the Case
of Vaughan, as in this case, was, that war could not be levied without
actual fighting. In this the counsel was very properly overruled;
but it is apparent that the judges proceeded entirely on the idea that
a warlike posture was indispensable to the fact of levying war. Judge
Foster proceeds to give other instances of levying war: "Attacking the
king's forces in opposition to his authority upon a march or in quarters
is levying war." "Holding a castle or fort against the king or his forces,
if actual force be used in order to keep possession, is levying war. But
a bare detainer, as, suppose, by shutting the gates against the king or
has forces, without any other force from within, Lord Hale conceiveth
will not amount to treason." The whole doctrine of Judge Foster on this
subject seems to demonstrate a clear opinion that a state of force
or violence, a posture of war, must exist to constitute technically as
well as really the fact of levying war.
Judge Blackstone seems to concur with his
predecessors. Speaking of levying war, he says: "This may be done
by taking arms, not only to dethrone the king, but under pretense to reform
religion or the laws, or to remove evil counsellors or other grievances,
whether real or pretended. For the law does not, neither can it,
permit any private man or set of men to interfere forcibly in matters of
such high importance." He proceeds to give examples of levying war, which
show that he contemplated actual force as a necessary ingredient in the
composition of this crime. It would seem, then, from the English
authorities, that the words "levying war" have not received a technical
different from their natural meaning, so far as respects the character
of the assemblage of men which may constitute the fact. It must be
a warlike assemblage, carrying the appearance of force, and in a situation
to practice hostility.
Several judges of the United States have given
opinions at their circuits on the subject, all of which deserve,
and will receive the particular attention of this court.
In his charge to the grand jury, when John
Fries was indicted in consequence of a forcible opposition to the
direct tax, Judge Iredell is understood to have said: "I think I
am warranted in saying that if, in the case of the insurgents who may come
under your consideration, the intention was to prevent by force of
arms the execution of an act of the congress of the United States altogether,
any forcible opposition, calculated to carry that intention into effect,
was a levying of war against the United States, and, of course, an act
of treason." To levy war, then, according to this opinion of Judge Iredell,
required the actual exertion of force. Judge Patterson, in
his opinions delivered in two different cases, seems not to differ
from Judge Iredell. He does not, indeed, precisely state the employment
of force as necessary to constitute a levying war, but in giving his opinion,
in cases in which force was actually employed, he considers the crime
in one case as dependent on the intention; and in the other case he says:
"Combining these facts and this design," (that is, combining actual force
with a treasonable design,) "the crime is high treason." Judge Peters has
also indicated the opinion that force was necessary to constitute the crime
of levying war. Judge Chase has been particularly clear and explicit.
In an opinion which he appears to have prepared on great consideration,
he says: "The court are of opinion that if a body of people conspire
and meditate an insurrection to resist or oppose the execution of a statute
of the United States by force, they are only guilty of a high misdemeanor;
but if they proceed to carry such intention into execution by force, that
they are guilty of the treason of levying war; and the quantum of the force
employed neither increases nor diminishes the crime; whether by one
hundred or one thousand persons is wholly immaterial. The court are
of opinion that a combination or conspiracy to levy war against the United
States is not treason unless combined with an attempt to carry such combination
or conspiracy into execution; some actual force or violence must be used
in pursuance of such design to levy war; but that it is altogether immaterial
whether the force used be sufficient to effectuate the object. Any
force connected with the intention will constitute the crime of levying
of war." In various parts of the opinion delivered by Judge Chase, in the
case of Fries, the same sentiments are to be found. It is to be observed
that these judges are not content that troops should be assembled in a
condition to employ force. According to them some degree of force
must have been actually employed. The judges of the United States,
then, so far as their opinions have been quoted, seem to have required
still more to constitute the fact of levying war than has been required
by the English books. Out judges seem to have required the actual
exercise of force, the actual employment of some degree of violence.
This, however, may be, and probably is, because, in the cases in which
their opinions were given, the design not having been to overturn the government,
but to resist the execution of a law, such an assemblage as would be sufficient
for the purpose would require the actual employment of force to render
the object unequivocal.
But it is said all these authorities have
been overruled by the decision of the supreme court in the case of U.S.
v. Swartwout [4 Cranch (8 U.S.) 75]. If the supreme court have indeed extended
the doctrine of treason further than it has heretofore been carried by
the judges of England or of this country, their decision would be submitted
to. At least this court could go no further than to endeavor again
to bring the point directly before them. It would, however, be expected
that an opinion which is to overrule all former precedents, and to establish
a principle never before recognized, should be expressed in plain and
explicit terms. A mere implication ought not to prostrate a principle
which seems to have been so well established. Had the intention been
entertained to make so material a change in this respect, the court ought
to have expressly declared that any assemblage of men whatever, who had
formed a treasonable design, whether in force or not, whether in a condition
to attempt the design or not, whether attended with warlike appearances
or not, constitutes the fact of levying war. Yet no declaration to
this amount is made. Not an expression of the kind is to be found
in the opinion of the supreme court. The foundation on which
this argument rests is the omission of the court to state that the assemblage
which constitutes the fact of levying war ought to be in force, and some
passages which show that the question respecting the nature of the assemblage
was not in the mind of the court when the opinion was drawn; which passages
are mingled with others which at least show that there was no intention
to depart from the course of the precedents in cases of treason by levying
war. Every opinion, to be correctly understood, ought to be considered
with a view to the case in which it was delivered. In the case of
the United States against Bollman and Swartwout, there was no evidence
that even two men had ever met for the purpose of executing the plan
in which those persons were charged with having participated. It
was, therefore, sufficient for the court to say that unless men were assembled,
war could not be levied. That case was decided by this declaration.
The court might indeed have defined the species of assemblage which would
amount to levying of war; but, as this opinion was not a treatise
on treason, but a decision of a particular case, expressions of doubtful
import should be construed in reference to the case itself, and the mere
omission to state that a particular circumstance was necessary to the consummation
of the crime ought not to be construed into a declaration that the
circumstance was unimportant. General expressions ought not to be
considered as overruling settled principles, without a direct declaration
to that effect. After these preliminary observations, the court will proceed
to examine the opinion which has occasioned them.
The first expression in it bearing on the
present question is, "To constitute that specific crime for which the prisoner
now before the court has been committed, war must be actually levied against
the United States. However flagitious may be the crime of conspiracy
to subvert by force the government of our country, such conspiracy
is not treason. To conspire to levy war and actually to levy war
are distinct offences. The first must be brought into operation by
the assemblage of men for a purpose treasonable in itself, or the fact
of levying war cannot have been committed." Although it is not expressly
stated that the assemblage of men for the purpose of carrying into operation
the treasonable intent which will amount to levying war must be an assemblage
in force, yet it is fairly to be inferred from the context; and nothing
like dispensing with force appears in this paragraph. The expressions
are, "to constitute the crime, war must be actually levied." A conspiracy
to levy war is spoken of as "a conspiracy to subvert by force the
government of our country." Speaking in general terms of an assemblage
of men for this or for any other purpose, a person would naturally be understood
as speaking of an assemblage in some degree adapted to the purpose.
An assemblage to subvert by force the government of our country, and amounting
to a levying of war, should be an assemblage in force. In a subsequent
paragraph the court says: "It is not the intention of the court to say
that no individual can be guilty of this crime who has not appeared in
arms against his country. On the contrary, if war be actunally levied,
that is, if a body of men be actually assembled in order to effect by force
a treasonable purpose, all those who perform any part, however minute,
&c., and who are actually leagued in the general conspiracy, are traitors.
But there must be an actual assembling of men for the treasonable purpose
to constitute a levying of war." The observations made on the preceding
paragraph apply to this. "A body of men actually assembled, in order
to effect by force a treasonable purpose," must be a body assembled
with such appearance of force as would warrant the opinion that they were
assembled for the particular purpose. An assemblage to constitute
an actual levying of war should be an assemblage with such appearance of
force as would justify the opinion that they met for the purpose.
This explanation, which is believed to be the natural, certainly not a
strained explanation of the words, derives some additional aid from the
terms in which the paragraph last quoted commences: "It is not the
intention of the court to say that no individual can be guilty of treason
who has not appeared in arms against his country." These words seem intended
to obviate an inference which might otherwise have been drawn from the
preceding paragraph. They indicate that in the mind of the court
the assemblage stated in that paragraph was an assemblage in arms; that
the individuals who composed it had appeared in arms against their country;
that is, in other words, that the assemblage was a military, a warlike
assemblage.The succeeding paragraph in the opinion relates to a conspiracy,
and serves to show that force and violence were in the mind of the
court, and that there was no idea of extending the crime of treason by
construction beyond the constitutional definition which had been given
of it.
Returning to the case actually before the
court, it is said: "A design to overturn the government of the United States
in New Orleans by force would have been unquestionably a design which
if carried into execution would have been treason; and the assemblage of
a body of men for the purpose of carrying it into execution would amount
to levying to war against the United States." New what could reasonably
be said to be an assemblage of a body of men for the purpose of overturning
the government of the United States in New Orleans by force? Certainly
an assemblage in force; an assemblage prepared, and intending to act with
force; a military assemblage. The decisions theretofore made by the
judges of the United States are, then, declared to be in conformity with
the principles laid down by the supreme court. Is this declaration
compatible with the idea of departing from those opinions on a point within
the contemplation of the court? The opinions of Judge Patterson and
Judge Iredell are said "to imply an actual assembling of men, though they
rather designed to remark on the purpose to which the force was to be applied
than on the nature of the force itself." This observation certainly indicates
that the necessity of an assemblage of men was the particular point the
court meant to establish, and that the idea of force was never separated
from this assemblage.
The opinion of Judge Chase is next quoted
with approbation. This opinion in terms requires the employment of
force. After stating the verbal communication said to have been made
by Mr. Swartwout to General Wilkinson, the court says, "If these words
import that the government of New Orleans was to be revolutionized by force,
although merely as a step to, or a means of, executing some greater
projects, the design was unquestionably treasonable; and any assemblage
of men for that purpose would amount to a levying of war." The words
"any assemblage of men." if construed to affirm that any two or three of
the conspirators who might be found together after this plan had been formed
would be the act of levying war, would certainly be misconstrued.
The sense of the expression, "any assemblage of men," is restricted by
the words "for this purpose." Now, could it be in the contemplation of
the court that a body of men would assemble for the purpose of revolutionizing
New Orleans by force, who should not themselves be in force? After
noticing some difference of opinion among the judges respecting the import
of the words said to have been used by Mr. Swartwout, the court proceeds
to observe: "But whether this treasonable intention be really imputable
to the plan or not, it is admitted that it must have been carried into
execution by an open assemblage for that purpose, previous to the arrest
of the prisoner, in order to consummate the crime as to him." Could the
court have conceived "an open assemblage" "for the purpose of overturning
the government of New Orleans by force," to be only equivalent to a
secret, furtive assemblage without the appearance of force?After quoting
the words of Mr. Swartwout, from the affidavit, in which it was stated
that Mr. Burr was levying an army of 7,000 men, and observing that the
treason to be inferred from these words would depend on the intention
with which it was levied, and on the progress which had been made
in levying it, the court says: "The question, then, is whether this evidence
prove Colonel Burr to have advanced so far in levying an army as actually
to have assembled them." Actually to assemble an army of 7,000 men is unquestionably
to place those who are so assembled in a state of open force. But
as the mode of expression used in this passage might be misconstrued so
far as to countenance the opinion that it would be necessary to assemble
the whole army in order to constitute the fact of levying war, the court
proceeds to say: "It is argued that since it cannot be necessary that the
whole 7,000 men should be assembled, their commencing their march by detachments
to the place of rendezvous must be sufficient to constitute the crime.
This position is correct with some qualification. It cannot be necessary
that the whole army should assemble, and that the various parts which
are to compose it should have combined. But it is necessary there
should be an actual assemblage; and therefore this evidence should
make the fact unequivocal.The travelling of individuals to the place or
rendezvous would, perhaps, not be sufficient. This would be an equivocal
act, and has no warlike appearance. The meeting of particular
bodies of men, and their march from places of partial to a place of general
rendezvous, would be such an assemblage." The position here stated by the
counsel for the prosecution is that the army "commencing its march by detachments
to the place of rendezvous (that is, of the army) must be sufficient to
constitute the crime." This position is not admitted by the court to be
universally correct. It is said to be "correct with some qualification."
What is that qualification? "The travelling of individuals to the
place of rendezvous (and by this term is not to be understood one individual
by himself, but several individuals, either separately or together, but
not in military form) would perhaps not be sufficient." Why not sufficient?
Because, says the court, "this would be an equivocal act and has no warlike
appearance." The act, then, should be unequivocal and should have a warlike
appearance. It must exhibit, in the words of Sir Matthew Hale, speciem
belli, the appearance of war. This construction is rendered in some
measure necessary when we observe that the court is qualifying the position,
"that the army commencing their march by detachments to the place of rendezvous
must be sufficient to constitute the crime." In qualifying this position
they say, "the travelling of individuals would perhaps not be sufficient."
Now, a solitary individual travelling to any point, with any intent, could
not, without a total disregard of language, be termed a marching
detachment. The court, therefore, must have contemplated several
individuals travelling together, and the words being used in reference
to the position they intended to qualify, would seem to indicate
the distinction between the appearances attending the usual movement of
a company of men for civil purposes, and that military movement which might,
in correct language, be denominated "marching by detachments." The
court then proceeded to say: "The meeting of particular bodies of men,
and their marching from places of partial to a place of general rendezvous,
would be such an assemblage."
It is obvious from the context that the court
must have intended to state a case which would in itself be unequivocal,
because it would have a warlike appearance. The case stated is that
of distinct bodies of men assembling at different places, and marching
from these places of partial to a place of general rendezvous. When
this has been done an assemblage is produced which would in itself be unequivocal.
But when is it done? What is the assemblage here described? The assemblage
formed of the different bodies of partial at a place of general rendezvous.
In describing the mode of coming to this assemblage the civil term "travelling"
is dropped, and the military term "marching" is employed. If this
were intended as a definition of an assemblage which would amount
to levying war, the definition requires an assemblage at a place of general
rendezvous, composed of bodies of men who had previously assembled at places
of partial rendezvous. But this is not intended as a definition;
for clearly if there should be no places of partial rendezvous, if troops
should embody in the first instance in great force for the purpose of
subverting the government by violence, the act would be unequivocal; it
would have a warlike appearance; and it would, according to the opinion
of the supreme court, properly construed, and according to English authorities,
amount to levying war. But this, though not a definition, is put
as an example, and surely it may be safely taken as an example. If
different bodies of men, in pursuance of a treasonable design, plainly
proved, should assemble in warlike appearance at places of partial rendezvous,
and should march from those places to a place of general rendezvous, it
is difficult to conceive how such a transaction could take place without
exhibiting the appearance of war, without an obvious display of force.At
any rate, a court in stating generally such a military assemblage as would
amount to levying war, and having a case before it in which there
was no assemblage whatever, cannot reasonably be understood, in putting
such an example, to dispense with those appearances of war which seem to
be required by the general current of authorities. Certainly it ought
not to be so understood when it says in express terms that "it is more
safe as well as more consonant to the principles of our constitution
that the crime of treason should not be extended by construction to doubtful
cases; and that crimes not clearly within the constitutional definition
should receive such punishment as the legislature in its wisdom may provide."
After this analysis of the opinion of the
supreme court, it will be observed that the direct question, whether
an assemblage of men which might be construed to amount to a levying
of war must appear in force or in military form, was not in argument
or in fact before the court, and does not appear to have been in terms
decided. The opinion seems to have been drawn without particularly
adverting to this question; and, therefore, upon a transient view of particular
expression, might inspire the idea that a display of force, that appearances
of war, were not necessary ingredients to constitute the fact of
levying war. But upon a more intent and more accurate investigation
of this opinion, although the terms force and violence are not employed
as descriptive of the assemblage, such requisites are declared to be indispensable
as can scarcely exist without the appearance of war and the existence of
real force. It is said that war must be levied in fact; that
the object must be one which is to be effected by force; that the assemblage
must be such as to prove that this is its object; that it must not be an
equivocal act, without a warlike appearance; that it must be an open assemblage
for the purpose of force. In the course of this opinion, decisions
are quoted and approved which require the employment of force to constitute
the crime. It seems extremely difficult, if not impossible, to reconcile
these various declarations with the idea that the supreme court considered
a secret, unarmed meeting, although that meeting be of conspirators,
and although it met with a treasonable intent, as an actual levying of
war. Without saying that the assemblage must be in force or in warlike
form, it expresses itself so as to show that this idea was never discarded;
and it uses terms which cannot be otherwise satisfied. The opinion
of a single judge certainly weighs as nothing if opposed to that of the
supreme court; but if he were one of the judges who assisted in framing
that opinion, if while the impression under which it was framed was yet
fresh upon his mind he delivered an opinion on the same testimony, not
contradictory to that which had been given by all the judges together,
but showing the sense in which he understood terms that might be differently
expounded, it may fairly be said to be in some measure explanatory of the
opinion itself. To the judge before whom the charge against
the prisoner at the bar was first brought the same testimony was offered
with that which had been exhibited before the supreme court; and he was
required to give an opinion in almost the same case. Upon this occasion
he said "war can only be levied by the employment of actual force.
Troops must be embodied, men must be assembled, in order to levy
war." Again he observed: "The fact to be proved in this case is an act
of public notoriety. It must exist in the view of the world, or it
cannot exist at all. The assembling of forces to levy war is a visible
transaction; and numbers must witness it." It is not easy to doubt what
kind of assemblage was in the mind of the judge who used these expressions;
and it is to be recollected that he had just returned from the supreme
court, and was speaking on the very facts on which the opinion of that
court was delivered. The same judge, in his charge to the grand jury
who found this bill, boserved: "To constitute the fact of levying war it
is not necessary that hostilities shall have actually commenced by engaging
the military force of the United States, or that measures of violence
against the government shall have been carried into execution. But
levying war is a fact, in the constitution of which force is an indispensable
ingredient. Any combination to subvert by force the government of
the United States, violently to dismember the Union, to compel a change
in the administration, to coerce the repeal or adoption of a general law,
is a conspiracy to levy war; and if the conspiracy be carried into effect
by the actual employment of force, by the embodying and assembling of men
for the purpose of executing the treasonable design which was previously
conceived, it amounts to levying of war. It has been held that arms
are not essential to levying war, provided the force assembled to sufficient
to attain, or, perhaps, to justify attempting the object without
them." This paragraph is immediately followed by a reference to the opinion
of the supreme court.
It requires no commentary upon these words
to show that, in the opinion of the judge who uttered them, an assemblage
of men which should constitute the fact of levying war must be an assemblage
in force, and that he so understood the opinion of the supreme court.
If in that opinion there may be found in some passages a want of precision,
and an indefiniteness of expression, which has occasioned it to be differently
understood by different persons, that may well be accounted for when it
is recollected that in the particular case there was no assemblage whatever.
In expounding that opinion the whole should be taken together, and in reference
to the particular case in which it was delivered. It is, however,
not improbable that the misunderstanding has arisen from this circumstance:
The court unquestionably did not consider arms as an indispensable requisite
to levying war. An assemblage adapted to the object might be in a
condition to effect or to attempt it without them. Nor did the court consider
the actual application of the force to the object as at all times an indispensable
requisite; for an assemblage might be in a condition to apply force, might
be in a state adapted to real war, without having made the actual application
of that force. From these positions, which are to be found
in the opinion, it may have been inferred, it is though too hastily,
that the nature of the assemblage was unimportant, and that war might be
considered as actually levied by any meeting of men, if a criminal
intention can be imputed to them by testimony of any kind whatever.
It has been thought proper to discuss this
question at large, and to review the opinion of the supreme court, although
this court would be more disposed to leave the question of fact, whether
an overt act of levying war were committed on Blennerhassett's Island to
the jury, under this explanation of the law, and to instruct them
that unless the assemblage on Blennerhassett's Island was an assemblage
in force, was a military assemblage in a condition to make war, it was
not a hevying of war, and that they could not construe it into an act of
war, than to arrest the further testimony which might be offered to connect
the prisoner with that assemblage, or to prove the intention of those who
assembled together at that place. This point, however, is not to
be understood as decided. It will, perhaps, constitute an essential
inquiry in another case.
Before leaving the opinion of the supreme
court entirely, on the question of the nature of the assemblage which
will constitute an act of levying war, this court cannot forbear to ask,
why is an assemblage absolutely required? It it not to judge in some
measure of the end by the proportion which the means bear to the end? Why
is it that a single armed individual entering a boat, and sailing down
the Ohio for the avowed purpose of attacking New Orleans, could not be
said to levy war? Is it not that he is apparently not in a condition to
levy war? If this be so, ought not the assemblage to furnish
some evidence of its intention and capacity to levy war before it can amount
to levying war? And ought not the supreme court, when speaking of
an assemblage for the purpose of effecting a treasonable object by force,
be understood to indicate an assemblage exhibiting the appearance of force?
The definition of the attorney for the United States deserves notice in
this respect. It is, "When there is an assemblage of men, convened
for the purpose of effecting by force a treasonable object, which
force is meant to be employed before the assemblage disperses, this is
treason." To read this definition without adverting to the argument, we
should infer that the assemblage was itself to effect by force the treasonable
object, not to join itself to some other dodies of men and then to effect
the object by their combined force. Under this construction, it would
be expected the appearance of the assemblage would bear some proportion
to the object, and would indicate the intention; at any rate, that it would
be an assemblage in force. This construction is most certainly not
that which was intended; but it serves to show that general phrases
must always be understood in reference to the subject-matter and to the
general principles of law.
On that division of the subject which respects
the merits of the case connected with the pleadings, two points are also
made: 1st. That this indictment, having charged the prisoner with levying
war on Blennerhassett's Island, and containing no other overt act, cannot
be supported by proof that war was levied at that place by other persons
in the absence of the prisoner, even admitting those persons to be connected
with him in one common treasonable conspiracy. 2dly. That admitting
such an indictment could be supported by such evidence, the previous
conviction of some person, who committed the act which is said to amount
to levying war, is indispensable to the conviction of a person who advised
or procured that act.
As to the first point, the indictment contains
two counts, one of which charges that the prisoner, with a number of persons
unknown, levied war on Blennerhassett's Island, in the county of Wood,
in the district of Virginia; and the other adds the circumstance of their
proceeding from that island down the river for the purpose of seizing New
Orleans by force. In point of fact, the prisoner was not on Blennerhassett's
Island, nor in the county of Wood, nor in the district of Virginia.
In considering this point, the court is led first to inquire whether
an indictment for levying war must specify an overt act, or would be sufficient
if it merely charged the prisoner in general terms with having levied war,
omitting the expression of place or circumstance. The place in which
a crime was committed is essential to an indictment, were it only to show
the jurisdiction of the court. It is, also, essential for the purpose
of enabling the prisoner to make his defence. That at common law
an indictment would have been defective which did not mention the
place in which the crime was committed can scarcely be doubted. For
this, it is sufficient to refer to Hawk. P.C. bk. 2, c. 25, @ 84, and Id.
chapter 23, @ 91. This necessity is rendered the stronger by the
constitutional provision that the offender "shall be tried in the state
and district wherein the crime shall have been committed," and by the act
of congress which requires that twelve petit jurors at least shall be summoned
from the county where the offence was committed. A description of
the particular manner in which the war was levied seems, also, essential
to enable the accused to make his defence. The law does not expect
a man to be prepared to defend every act of his life which may be suddenly
and without notice alleged against him.In common justice, the particular
fact with which he is charged ought to be stated, and stated in such a
manner as to afford a reasonable certainty of the nature of the accusation
and the circumstances which will be adduced against him. The general
doctrine on the subject of indictments is full to this point. Foster
(Crown Law, p. 194), speaking of the treason for compassing the king's
death, says: "From what has been said, it followeth that in every indictment
for this species of treason, and, indeed, for levying war and adhering
to the king's enemies, an overt act must be alleged and proved. For the
overt act is the charge to which the prisoner must apply his defence."
In page 220 Foster repeats this declaration. It is, also, laid down
in Hawk. P.C. bk. 8, c. 17, @ 29; 1 Hale, P.C. 121; 1 East, P.C. 116, and
by the other authorities cited, especially Vaughan's Case. In corroboration
of this opinion, it may be observed that treason can only be established
by the proof of overt acts, and that by the common law as well as by the
statute of 7 Wm. III. those overt acts only which are charged in the indictment
can be given in evidence, unless, perhaps, as corroborative testimony after
the overt acts are proved. That clause in the constitution, too, which
says that in all criminal prosecutions the accused shall enjoy the right
"to be informed of the nature and cause of the accusation," is considered
as having a direct bearing on this point. It secures to him such
information as will enable him to prepare for his defence. It seems,
then, to be perfectly clear that it would not be sufficient for an
indictment to allege generally that the accused had levied war against
the United States. The charge must be more particularly specified
by laying what is termed an overt act of levying war. The law relative
to an appeal as cited from Stamford, is strongly corroborative of this
opinion.
If it be necessary to specify the charge in
the indictment, it would seem to follow, irresistibly, that the charge
must be proved as laid. All the authorities which require an overt
act, require also that this overt act should be proved. The
decision in Vaughan's Case is particularly in point. Might it be
otherwise, the charge of an overt act would be a mischief instead of an
advantage to the accused. It would lead him from the true cause and
nature of the accusation, instead of informing him respecting it.
But it is contended on the part of the prosecution that, although
the accused had never been with the party which assembled at Blennerhassett's
Island, and was, at that time, at a great distance, and in a different
state, he was yet legally present, and, therefore, may properly be charged
in the indictment as being present in fact. It is, therefore, necessary
to inquire whether in this case the doctrine of constructive presence can
apply. It is conceived by the court to be possible that a person
may be concerned in a treasonable conspiracy, and yet be legally as well
as actually absent while some one act of the treason is perpetrated.
If a rebellion should be so extensive as to spread through every state
in the Union, it will scarcely be contended that every individual concerned
in it is legally present at every overt act committed in the course of
that rebellion. It would be a very violent presumption indeed, too violent
to be made without clear authority, to presume that even the chief of the
rebel army was legally present at every such overt act. If the main
rebel army, with the chief at its head, should be prosecuting war
at one extremity of our territory, say in New Hampshire; if this chief
should be there captured and sent to the other extremity for the purpose
of trial; if his indictment, instead of alleging an overt act which was
true in point of fact, should allege that he had assembled some small party
which in truth he had not seen, and had levied war by engaging in
a skirmish in Georgia at a time when, in reality, he was fighting a battle
in New Hampshire; if such evidence would support such an indictment by
the fiction that he was legally present, though really absent, all
would ask to what purpose are those provisions in the constitution, which
direct the place of trial and ordain that the accused shall be informed
of the nature and cause of the accusation? But that a man may be
legally absent who has counselled or procured a treasonable act is proved
by all those books which treat upon the subject, and which concur in declaring
that such a person is a principal traitor, not because he was legally present,
but because in treason all are principals. Yet the indictment, speaking
upon general principles, would charge him according to the truth of the
case. Lord Coke says: "If many conspire to levy war, and some of
them do levy the same according to the conspiracy, this is high treason
in all." Why? because all were legally present when the war was levied?
No. "For in treason," continues Lord Coke, "all be principals, and
war is levied." In this case the indictment, reasoning from analogy, would
not charge that the absent conspirators were present, but would state the
truth of the case. If the conspirator had done nothing which amounted
to levying of war, and if by our constitution the doctrine that an accessory
becomes a principal be not adopted, in consequence of which the conspirator
could not be condemned under an indictment stating the truth of the case,
it would be going very far to say that this defect, if it be termed one,
may be cured by an indictment stating the case untruly.
This doctrine of Lord Coke has been adopted
by all subsequent writers, and it is generally laid down in the English
books that whatever will make a man an accessory in felony, will make him
a principal in treason; but it is nowhere suggested that he is by construction
to be considered as present when in point of fact he was absent.
Foster has been particularly quoted, and certainly he is precisely in point.
"It is well known," says Foster, "that in the language of the law there
are no accessories in high treason; all are principals. Every instance
of incitement, aid, or protection, which in the case of felony will render
a man an accessory before or after the fact, in the case of high treason,
whether it be treason at common law or by statute, will make him a principal
in treason." The cases of incitement and aid are cases put as examples
of a man's becoming a principal in treason, not because he was legally
present, but by force of that maxim in the common law, that whatever
will render a man an accessory at common law will render him a principal
in treason. In other passages the words "command" or "procure" are
used to indicate the same state of things; that is, a treasonable assemblage
produced by a man who is not himself in that assemblage. In point
of law, then, the man who incites, aids, or procures a treasonable act,
is not, merely in consequence of that incitement, aid, or procurement,
legally present when that act is committed. If it do not result,
from the nature of the crime, that all who are concerned in it are legally
present at every overt act, then each case depends upon its own circumstances;
and to judge how far the circumstances of any case can make him legally
present, who is in fact absent, the doctrine of constructive presence must
be examined.
Hale in volume 1, p. 615, says: "Regularly
no man can be a principal in felony unless he be present." In the same
page he says: "An accessory before is he that, being absent at the
time of the felony committed, doth yet procure, counsel, or command another
to commit a felony." The books are full of passages which state this
to be the law. Foster, in showing what acts of concurrence will make
a man a principal, says: "He must be present at the perpetration, otherwise
he can be no more than an accessory before the fact." These strong distinctions
would be idle, at any rate they would be inapplicable to treason, if they
were to be entirely lost in the doctrine of constructive presence. Foster
adds (page 349): "When the law requireth the presence of the accomplice
at the perpetration of the fact in order to render him a principal, it
doth not require a strict actual immediate presence, such a presence
as would make him an eye or ear witness of what passeth." The terms used
by Foster are such as would be employed by a man intending to show
the necessity that the absent person should be near at hand, although from
the nature of the thing no precise distance could be marked out.
An inspection of the cases from which Foster drew that general principle
will serve to illustrate it. Hale, P.C. p. 439. In all
these cases, put by Hale, the whole party set out together to commit the
very fact charged in the indictment; or to commit some other unlawful act,
in which they are all to be personally concerned at the same time and place,
and are, at the very time when the criminal fact is committed, near
enough to give actual personal aid and assistance to the man who perpetrated
it. Hale, in page 449, giving the reason for the decision in the
case of the Lord Dacre, says: "They all came with an intent to steal the
deer; and consequently the law supposes that they came all with the intent
to oppose all that should hinder them in that design." The original case
says this was their resolution. This opposition would be a personal
opposition. This case, even as stated by Hale, would clearly not
comprehend any man who entered into the combination, but who, instead of
going to the park where the murder was committed, should not set out
with the others, should go to a different park, or should even lose his
way. In both these cases stated in Hale, P.C. p. 534, the persons
actually set out together, and were nearenough to assist in the commission
of the fact. That in the Case of Pudsey the felony was, as
stated by Hale, a different felony from that originally intended, is unimportant
in regard to the particular principle now under consideration; so far as
respected distance, as respected capacity to assist in case of resistance,
it is the same as if the robbery had been that which was originally designed.The
case in the original report shows that the felony committed was in fact
in pursuance of that originally designed. Foster (page 350) plainly
supposes the same particular design, not a general design composed of many
particular distinct facts. He supposes them to be co-operating with
respect to that particular design. This may be illustrated by a case
which is, perhaps, common. Suppose a band of robbers confederated
for the general purpose of robbing. They set out together,
or in parties, to rob a particular individual; and each performs
the part assigned to him. Some ride up to the individual, and demand
his purse. Others watch out of sight to intercept those who might
be coming to assist the man on whom the robbery is to be committed.
If murder or robbery actually take place, all are principals; and all in
construction of law are present. But suppose they set out at the
same time or at different times, by different roads, to attack and rob
different individuals or different companies; to commit distinct acts of
robbery. It has never been contended that those who committed one
act of robbery, or who failed altogether, were constructively present at
the act of those who were associated with them in the common object of
robbery, who were to share the plunder, but who did not assist at the particular
fact. They do, indeed, belong to the general party; but they are
not of the particular party which committed this fact. Foster concludes
this subject by observing that "in order to render a person an accomplice
and a principal in felony, he must be aiding and abetting at the fact,
or ready to afford assistance if necessary:" that is, at the particular
fact which is charged. He must be ready to render assistance to those
who are committing that fact. He must, as is stated by Hawkins, be
ready to give immediate and direct assistance. All the cases
to be found in the books go to the same point. Let them be applied
to that under consideration.
The whole treason laid in this indictment
is the levying of war in Blennerhassett's Island; and the whole question
to which the inquiry of the court is now directed is whether the prisoner
was legally present at that fact. I say this is the whole question;
because the prisoner can only be convicted on the overt act laid
in the indictment. With respect to this prosecution, it is as if
no other overt act existed. If other overt acts can be inquired into,
it is for the sole purpose of proving the particular fact charged.
It is an evidence of the crime consisting of this particular fact, not
as establishing the general crime by a distinct fact. The counsel
for the prosecution have charged those engaged in the defence with considering
the overt act as treason, whereas it ought to be considered solely
as the evidence of the treason; but the counsel for the prosecution seem
themselves not to have sufficiently adverted to this clear principle; that
though the overt act may not be itself the treason, it is the sole act
of that treason which can produce conviction. It is the sole point
in issue between the parties. And the only division of that point,
if the expression be allowed, which the court is now examining, is the
constructive presence of the prisoner at the fact charged.
To return, then, to the application of the
cases. Had the prisoner set out with the party from Beaver for Blennerhassett's
Island, or perhaps had he set out for that place, though not from Beaver,
and had arrived in the island, he would have been present at the fact.
Had he not arrived in the island, but had taken a position near enough
to co-operate with those on the island, to assist them in any act of hostility,
or to aid them if attacked, the question whether he was constructively
present would be a question compounded of law and fact, which would be
decided by the jury, with the aid of the court, so far as respected the
law. In this case the accused would have been of the particular party
assembled on the island, and would have been associated with them in the
particular act of levying war said to have been committed on the island.
But if he was not with the party at any time before they reached the island;
if he did not join them there, or intend to join them there; if his
personal co-operation in the general plan was to be afforded elsewhere,
at a great distance, in a different state; if the overt acts of treason
to be performed by him were to be distinct overt acts -- then he
was not of the particular party assembled at Blennerhassett's Island, and
was not constructively present, aiding and assisting in the particular
act which was there committed. The testimony on this point, so far
as it has been delivered, is not equivocal. There is not only no
evidence that the accused was of the particular party which assembled on
Blennerhassett's Island, but the whole evidence shows he was not of that
party. In felony, then, admitting the crime to have been completed
on the island, and to have been advised, procured, or commanded by the
accused, he would have been incontestably an accessory and not a
principal. But in treason, it is said, the law is otherwise, because
the theatre of action is more extensive. The reasoning applies in
England as strongly as in the United States. While in '15 and
'45 the family of Stuart sought to regain the crown they had forfeited,
the struggle was for the whole kingdom, yet no man was ever considered
as legally present at one place, when actually at another; or as aiding
in one transaction while actually employed in another. With
the perfect knowledge that the whole nation may be the theatre of action,
the English books unite in declaring that he who counsels, procures, or
aids treason, is guilty accessorially, and solely in virtue of the
common law principle that what will make a man an accessory in felony
makes him a principal in treason. So far from considering a man as
constructively present at every overt act of the general treason in which
he may have been concerned, the whole doctrine of the books limits the
proof against him to those particular overt acts of levying war with he
is charged. What would be the effect of a different doctrine? Clearly that
which has been stated. If a person levying war in Kentucky may be said
to be constructively present and assembled with a party carrying on war
in Virginia at a great distance from him, then he is present at every overt
act performed anywhere. He may be tried in any state on the continent,
where any overt act has been committed.He may be proved to be guilty of
an overt act laid in the indictment in which he had no personal participation,
by proving that he advised it, or that he committed other acts. This
is, perhaps, too extravagant to be in terms maintained. Certainly
it cannot be supported by the doctrines of the English law.
The opinion of Judge Patterson in Mitchell's
Case has been cited on this point, 2 Dall. [2 U.S.] 348. The indictment
is not specially stated, but from the case as reported, it must have been
either general for levying war in the county of Allegany, and the overt
act must have been the assemblage of men and levying of war in that county,
or it must have given a particular detail of the treasonable transactions
in that county. The first supposition is the most probable, but let
the indictment be in the one form or the other, and the result is the same.
The facts of the case are that a large body of men, of whom Mitchell was
one, assembled at Braddock's field, in the county of Allegany, for the
purpose of committing acts of violence at Pittsburg; that there was also
an assemblage at a different time at Couch's fort, at which the prisoner
also attended. The general and avowed object of that meeting was
to concert measures for resisting the execution of a public law.
At Couch's fort the resolution was taken to attack the house of the inspector,
and the body there assembled marched to that house and attacked it.
It was proved by the competent number of witnesses that he was at Couch's
fort armed; that he offered to reconnoitre the house to be attacked;
that he marched with the insurgents towards the house; that he was with
them after the action attending the body of one of his comrades who was
killed in it. One witness swore positively that he was present at
the burning of the house; and a second witness said that "it run in his
head that he had seen him there." That a doubt should exist in such a case
as this is strong evidence of the necessity that the overt act should
be unequivocally proved by two witnesses.
But what was the opinion of the judge in this
case? Couch's fort and Neville's house being in the same county,
the assemblage having been at Couch's fort, and the resolution to
attack the house having been there taken, the body having for the avowed
purpose moved in execution of that resolution towards the house to
be attacked, he inclined to think that the act of marching was in itself
levying war. If it was, then the overt act laid in the indictment
was consummated by the assemblage at Couch's and the marching from thence;
and Mitchell was proved to be guilty by more than two positive witnesses.
But without deciding this to be the law, he proceeded to consider the meeting
at Couch's, the immediate marching to Neville's house, and the attack and
burning of the house, as one transaction. Mitchell was proved by
more than two positive witnesses to have been in that transaction, to have
taken an active part in it; and the judge declared it to be unnecessary
that all should have seen him at the same time and place. But suppose
not a single witness had proved Mitchell to have been at Couch's, or on
the march, or at Neville's. Suppose he had been at the time
notoriously absent in a different state. Can it be believed by any
person who observes the caution with which Judge Patterson required the
constitutional proof of two witnesses to the same overt act, that he would
have said Mitchell was constructively present, and might, on that
straining of a legal fiction, be found guilty of treason? Had he
delivered such an opinion, what would have been the language of this country
respecting it? Had he given this opinion, it would have required
all the correctness of his life to strike his name from that bloody list
in which the name of Jeffreys is enrolled.
But to estimate the opinion in Mitchell's
Case, let its circumstances be transferred to Burr's Case. Suppose the
body of men assembled in Blennerhassett's Island had previously met at
some other place in the same county; that Burr had been proved to be with
them by four witnesses; that the resolution to march to Blennerhassett's
Island for a treasonable purpose had been there taken; that he had been
seen on the march with them; that one witness had seen him on the island;
that another thought he had seen him there; that he had been seen with
the party directly after leaving the island; that this indictment had charged
the levying of war in Wood county generally -- the cases would, then, have
been precisely parallel; and the decision would have been the same.
In conformity with principle and with authority, then, the prisoner at
the bar was neither legally nor actually present at Blennerhassett's Island;
and the court is strongly inclined to the opinion that without proving
an actual or legal presence by two witnesses, the overt act laid in this
indictment cannot be proved.
But this opinion is controverted on two grounds:
The first is, that the indictment does not charge the prisoner to have
been present. The second, that although he was absent, yet
if he caused the assemblage, he may be indicted as being present, and convicted
on evidence that he caused the treasonable act. The first position is to
be decided by the indictment itself. The court understands the allegation
differently from the attorney for the United States. The court understands
it to be directly charged that the prisoner did assemble with the multitude,
and did march with them. Nothing will more clearly test this construction
than putting the case into a shape which it may possibly take. Suppose
the law be that the indictment would be defective unless it alleged the
presence of the person indicted at the act of treason. If, upon a
special verdict, facts should be found which amounted to a levying of war
by the accused, and his counsel should insist that he could not be condemned
because the indictment was defective in not charging that he was himself
one of the assemblage which constituted the treason, or because it alleged
the procurement defectively, would the attorney admit this construction
of his indictment to be correct? I am persuaded he would not,
and that he ought not to make such a concession. If, after a verdict,
the indictment ought to be construed to allege that the prisoner was one
of the assemblage at Blennerhassett's Island, it ought to be so construed
now. But this is unimportant; for if the indictment alleges
that the prisoner procured the assemblage, that procurement becomes part
of the overt act, and must be proved, as will be shown hereafter.
The second position is founded on 1 Hale, P.C. 214, 288, and 1 East,
P.C. 127.
While I declare that this doctrine contradicts
every idea I had ever entertained on the subject of indictments, (since
it admits that one case may be stated, and a very different case may be
proved,) I will acknowledge that it is countenanced by the authorities
adduced in its support. To counsel or advise a treasonable
assemblage, and to be one of that assemblage, are certainly distinct acts,
and, therefore, ought not to be charged as the same act. The great
objection to this mode of proceeding is, that the proof essentially varies
from the charge in the character and essence of the offence, and
in the testimony by which the accused is to defend himself.
These dicta of Lord Hale, therefore, taken in the extent in which they
are understood by the counsel for the United States, seem to be repugnant
to the declarations we find everywhere that an overt act must be laid,
and must be proved. No case is cited by Hale in support of them,
and I am strongly inclined to the opinion that had the public received
his corrected instead of his original manuscript, they would, if not expunged,
have been restrained in their application to cases of a particular description.
Laid down generally, and applied universally to all cases of treason, they
are repugnant to the principles for which Hale contends, for which all
the elementary writers contend, and from which courts have in no case,
either directly reported or referred to in the books, ever departed.
These principles are, that the indictment must give notice of the
offence; that the accused is only bound to answer the particular charge
which the indictment contains, and that the overt act laid is that particular
charge. Under such circumstances, it is only doing justice to Hale
to examine his dicta, and if they admit of being understood in a limited
sense, not repugnant to his own doctrines nor to the general principles
of law, to understand them in that sense. "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." This is laid down as applicable singly
to the treason of counterfeiting the coin, and is not applied by Hale to
other treasons. Had he designed to apply the principle universally
he would have stated it as a general proposition; he would have laid it
down in treating on other branches of the statute as well as in the chapter
respecting the coin; he would have laid it down when treating on indictments
generally. But he has done neither. Every sentiment bearing
in any manner on this point, which is to be found in Lord Hale while on
the doctrine of levying war or on the general doctrine of indictments,
militates against the opinion that he considered the proposition as more
extensive than he has declared it to be. No court could be justified
in extending the dictum of a judge beyond its terms to cases which he had
expressly treated, in which he has not himself applied it, and on which
he, as well as others, has delivered opinions which that dictum would overrule.
This would be the less justifiable if there should be a clear legal
distinction indicated by the very terms in which the judge has expressed
himself between the particular case to which alone he has applied the dictum
and other cases to which the court is required to extend it.There is this
clear legal distinction: "They may," says Judge Hale, "be indicted for
counterfeiting generally." But if many conspire to levy war, and
some actually levy it, they may not be indicted for levying war generally.
The books concur in declaring that they cannot be so indicted. A
special overt act of levying war must be laid. This distinction between
counterfeiting the coins and that class of treasons among which levying
war is placed is taken in the statute of Edward III. That statute
requires an overt act of levying war to be laid in the indictment, and
does not require an overt act of counterfeiting the coin to be laid.
If in a particular case, in which a general indictment is sufficient, it
be stated that the crime may be charged generally according to the legal
effect of the act, it does not follow that in other cases, where a general
indictment would not be sufficient, where an overt act must be laid,
that this overt act need not be laid according to the real fact.
Hale, then, is to be reconciled to himself and with the general principles
of the law only by permitting the limits which he has himself given to
his own dictum to remain where he has placed them. In page 238, Hale
is speaking generally to the receiver of a traitor, and is stating in what
such a receiver partakes of an accessory: 1st. "His indictment must be
special of the receipt, and not generally that he did the thing, which
may be otherwise in case of one that is procurer, counsellor, or consenter."
The words "may be otherwise" do not clearly convey the idea that
it is universally otherwise. In all cases of a receiver, the indictment
must be special on the receipt, and not general. The words "may be
otherwise in case of a procurer," &c., signify that it may be otherwise
in all treasons, or that it may be otherwise in some treasons. If
it may be otherwise in some treasons without contradicting the doctrines
of Hale himself as well as of other writers, but cannot be otherwise in
all treasons without such contradiction, the fair construction is, that
Hale used these words in their restricted sense; that he used them in reference
to treasons in which a general indictment would lie, not to treasons
where a general indictment would not lie, but an overt act of the treason
must be charged. The two passages of Hale thus construed may, perhaps,
be law, and may leave him consistent with himself. It appears to
the court to be the fair way of construing them.
These observations relative to the passages
quoted from Hale apply to that quoted from East, who obviously copies from
Hale and relies upon his authority. Upon this point, J. Kelyng, 26,
and 1 Hale, P.C. p. 626, have also been relied upon. It is stated
in both that if a man be indicted as a principal and acquitted, he cannot
afterwards be indicted as an accessory before the fact -- whence it is
inferred, not without reason, that evidence of accessorial guilt may be
received on such an indictment. Yet no case is found in which the
question has been made and decided. The objection has never been
taken at a trial and overruled, nor do the books say it would be overruled.
Were such a case produced its application would be questionable.
Kelyng says an accessory before the fact is quodam modo in some manner
guilty of the fact. The law may not require that the manner should
be stated, for in felony it does not require that an overt act should
be laid. The indictment, therefore, may be general; but an overt
act of levying war must be laid. These cases, then, prove in their
utmost extent no more than the cases previously cited from Hale and East.
This distinction between indictments which may state the fact generally,
and those which must lay it specially, bear some analogy to a general and
a special action on the case. In a general action the declaration
may lay the assumpsit according to the legal effect of the transaction,
but in a special action on the case the declaration must state the material
circumstances truly, and they must be proved as stated. This distinction
also derives some aid from a passage in Hale (page 625) immediately preceding
that which has been cited at the bar. He says: "If A be indicted as principal
and B as accessory before or after, and both be acquitted, yet B
may be indicted as principal, and the former acquittal as accessory
is no bar." The crimes, then, are not the same, and may not indifferently
be tried under the same indictment.But why is it that an acquittal as principal
may be pleaded in bar to an indictment as accessory, while an acquittal
as accessory may not be pleaded in bar to an indictment as principal?
If it be answered that the accessorial crime may be given in evidence on
an indictment as principal, but that the principal crime may not be given
in evidence on an indictment as accessory, the question recurs, on what
legal ground does this distinction stand? I can imagine only this:
an accessory being quodam modo a principal in indictments where the law
does not require the manner to be stated, which need not be special, evidence
of accessorial guilt, if the punishment be the same, may possibly be received;
but every indictment as accessory must be special. The very allegation
that he is an accessory must be a special allegation, and must show
how be became an accessory. The charges of this special indictment,
therefore, must be proved as laid, and no evidence which proves the crime
in a form substantially different can be received. If this be the
legal reason for the distinction, it supports the exposition of these dicta
which has been given. If it be not the legal reason, I can conceive
no other.
But suppose the law to be as is contended
by the counsel for the United States. Suppose an indictment charging
an individual with personally assembling among others, and thus levying
war, may be satisfied with the proof that he caused the assemblage.
What effect will this law have upon this case? The guilt of the accused,
if there be any guilt, does not consist in the assemblage, for he was not
a member of it. The simple fact of assemblage no more affects one
absent man than another. His guilt, then, consists in procuring the
assemblage, and upon this fact depends his criminality. The proof
relative to the character of an assemblage must be the same whether a man
be present or absent. In the general, to charge any individual with
the guilt of an assemblage, the fact of his presence must be proved; it
constitutes an essential part of the overt act. If, then, the procurement
be substituted in the place of presence, does it not also constitute an
essential part of the overt act? Must it not also be proved?
Must it not be proved in the same manner that presence must be proved?
If in one case the presence of the individual make the guilt of the assemblage
his guilt, and in the other case the procurment by the individual make
the guilt of the assemblage his guilt, then presence and procurement are
equally component parts of the overt act, and equally require two witnesses.
Collateral points may, say the books, be proved according to the course
of the common law; but is this a collateral point? Is the fact, without
which the accused does not participate in the guilt of the assemblage if
it was guilty, a collateral point? This cannot be. The presence
of the party, where presence in necessary, being a part of the overt act,
must be positively proved by two witnesses. No presumptive evidence,
no facts from which presence may be conjectured or inferred, will
satisfy the constitution and the law. If procurement take the place
of presence and become part of the overt act, then no presumptive evidence,
no facts from which the procurement may be conjectured or inferred,
can satisfy the constitution and the law. The mind is not to be led
to the conclusion that the individual was present by a train of conjectures,
of inferences, or of reasoning; the fact must be proved by two witnesses.
Neither, where procurement supplies the want of presence, is the mind to
be conducted to the conclusion that the accused procured the assembly
by a train of cojectures or inferences, or of reasoning; the fact itself
must be proved by two witnesses, and must have been committed within the
district. If it be said that the advising or procurement of treason
is a secret transaction, which can scarcely ever be proved in the manner
required by this opinion, the answer which will readily suggest itself
is, that the difficulty of proving a fact will not justify conviction without
proof. Certainly it will not justify conviction without a direct
and positive witness in a case where the constitution requires two.
The more correct inference from this circumstance would seem to be, that
the advising of the fact is not within the constitutional definition of
the crime. To advise or procure a treason is in the nature of conspiring
or plotting treason, which is not treason in itself. If, then, the
doctrines of Kelyng, Hale, and East, be understood in the sense in which
they are pressed by the counsel for the prosecution, and are applicable
in the United States, the fact that the accused procured the assemblage
on Blennerhassett's Island must be proved, not circumstantially, but positively,
by two witnesses, to charge him with that assemblage. But there are
still other most important considerations which must be well weighed before
this doctrine can be applied to the United States.
The 8th amendment to the constitution has
been pressed with great force, and it is impossible not to feel its
application to this point. The accused cannot be said to be
"informed of the nature and cause of the accusation" unless the indictment
give him that notice which may reasonably suggest to him the point on which
the accusation turns, so that he may know the course to be pursued in his
defence. It is also well worthy of consideration, that this doctrine,
so far as it respects treason, is entirely supported by the operation of
the common law, which is said to convert the accessory before the fact
into the principal, and to make the act of the principal his act.
The accessory before the fact is not said to have levied war.
He is not said to be guilty under the statute, but the common law attaches
to him the guilt of that fact which he has advised or procured; and, as
contended, makes it his act. This is the operation of the common
law, not the operation of the statute. It is an operation, then,
which can only be performed where the common law exists to perform it.
It is the creature of the common law, and the creature presupposes its
creator. To decide, then, that this doctrine is applicable to the
United States would seem to imply the decision that the United States,
as a nation, have a common law which creates and defines the punishment
of crimes accessorial in their nature. It would imply the further
decision that these accessorial crimes are not, in the case of treason,
excluded by the definition of treason given in the constitution.
I will not pretend that I have not individually an opinion on these points;
but it is one which I should give only in a case which absolutely
required it, unless I could confer respecting it with the judges of the
supreme court.
I have said that this doctrine cannot apply
to the United States without implying those decisions respecting the common
law which I have stated; because, should it be true, as is contended, that
the constitutional definition of treason comprehends him who advises or
procures an assemblage that levies war, it would not follow that such adviser
or procurer might be charged as having been present at the assemblage.
If the adviser or procurer be within the definition of levying war, and,
independent of the agency of the common law, do actually levy war,
then the advisement or procurement is an overt act of levying war.
If it be the overt act on which he is to be convicted, then it must be
charged in the indictment; for he can only be convicted on proof of the
overt acts which are charged. To render this distinction more intelligible,
let it be recollected that, although it should be conceded that since the
statute of William and Mary he who advises or procures a treason may, in
England, be charged as having committed that treason, by virtue of the
common law operation, which is said, so far as respects the indictment,
to unite the accessorial to the principal offence and permit them to be
charged as one, yet it can never be conceded that he who commits
one overt act under the statute of Edward can be charged and convicted
on proof of another overt act. If, then, procurement be an overt
act of treason under the constitution, no man can be convicted for the
procurement under an indictment charging him with actually assembling,
whatever may be the doctrine of the common law in the case of an
accessorial offender.
It may not be improper in this place again
to advert to the opinion of the supreme court, and to show that it contains
nothing contrary to the doctrine now laid down. That opinion is,
that an individual may be guilty of treason "who has not appeared in arms
against his country; that if war be actually levied, that is, if a body
of men be actually assembled for the purpose of effecting by force a treasonable
object, all those who perform any part, however minute, or however remote
from the scene of action, and who are actually leagued in the general conspiracy,
are to be considered as traitors." This opinion does not touch the case
of a person who advises or procures an assemblage, and does nothing further.
The advising, certainly, and perhaps the procuring, is more in the nature
of a conspiracy to levy war than of the actual levying of war. According
to the opinion, it is not enough to be leagued in the conspiracy, and that
war be levied, but it is also necessary to perform a part: that part is
the act of levying war. That part, it is true, may be minute, it
may not be the actual appearance in arms, and it may be remote from the
scene of action, that is, from the place where the army is assembled; but
it must be a part, and that part must be performed by a person who is leagued
in the conspiracy. This part, however minute or remote, constitutes
the overt act of which alone the person who performs it can be convicted.
The opinion does not declare that the person who has performed this remote
and minute part may be indicted for a part which was, in truth, performed
by others, and convicted on their overt acts. It amounts to this
and nothing more, that when war is actually levied, not only those who
bear arms, but those also who are leagued in the conspiracy, and who perform
the various distinct parts which are necessary for the prosecution of war,
do, in the sense of the constitution, levy war. It may possibly
be the opinion of the supreme court that those who procure a treason and
do nothing further are guilty under the constitution. I only say
that opinion has not yet been given, still less has it been indicated that
he who advises shall be indicted as having performed the fact.
It is, then, the opinion of the court that
this indictment can be supported only by testimony which proves the accused
to have been actually or constructively present when the assemblage took
place on Blennerhassett's Island; or by the admission of the doctrine that
he who procures an act may be indicted as having performed that act.
It is further the opinion of the court that
there is no testimony whatever which tends to prove that the accused was
actually or constructively present when that assemblage did take place;
indeed, the contrary is most apparent. With respect to admitting proof
of procurement to establish a charge of actual presence, the court is of
opinion that if this be admissible in England on an indictment for levying
war, which is far from being conceded, it is admissible only by virtue
of the operation of the common law upon the statute, and therefore is not
admissible in this country unless by virtue of a similar operation -- a
point far from being established, but on which, for the present,
no opinion is given. If, however, this point be established, still
the procurement must be proved in the same manner and by the same kind
of testimony which would be required to prove actual presence.
The second point in this division of the subject
is the necessity of adducing the record of the previous conviction of some
one person who committed the fact alleged to be treasonable.
This point presupposes the treason of the accused, if any have been committed,
to be accessorial in its nature. Its being of this description,
according to the British authorities, depends on the presence or absence
of the accused at the time the fact was committed. The doctrine on
this subject is well understood, has been most copiously explained, and
need not be repeated. That there is no evidence of his actual or
legal presence is a point already discussed and decided.It is, then,
apparent that but for the exception to the general principle which is made
in cases of treason, those who assembled at Blennerhassett's Island,
if that assemblage were such as to constitute the crime, would be principals,
and those who might really have caused that assemblage, although in truth
the chief traitors, would in law be accessories. It is a settled principle
in the law that the accessory cannot be guilty of a greater offence than
his principal. The maxim is "Accessorius sequitur naturam sui
principalis" -- "The accessory follows the nature of his principal." Hence
results the necessity of establishing the guilt of the principal before
the accessory can be tried; for the degree of guilt which is incurred by
counselling or commanding the commission of a crime depends upon the actual
commission of that crime. No man is an accessory to murder unless
the fact has been committed. The fact can only be established in
a prosecution against the person by whom a crime has been perpetrated.
The law supposes a man more capable of defending his own conduct than any
other person, and will not tolerate that the guilt of A shall be
established in a prosecution against B. Consequently, if the guilt
of B depends on the guilt of A, A must be convicted before B can be tried.
It would exhibit a monstrous deformity indeed in our system, if B might
be executed for being accessory to a murder committed by A, and A should
afterwards, upon a full trial, be acquitted of the fact. For this
obvious reason, although the punishment of a principal and accessory was
originally the same, and although in many instances it is still the
same, the accessory could in no case be tried before the conviction of
his principal, nor can he yet be tried previous to such conviction, unless
he require it, or unless a special provision to that effect be made
by statute. If, then, this were a felony, the prisoner at the bar
could not be tried until the crime were established by the conviction of
the person by whom it was actually perpetrated.
Is the law otherwise in this case, because
in treason all are principals? Let this question be answered by reason
and by authority. Why is it that in felonies, however atrocious,
the trial of the accessory can never precede the conviction of the principal?
Not because the one is denominated the principal and the other the accessory;
for that would be ground on which a great law principle could never stand.
Not because there was, in fact, a difference in the degree of moral guilt;
for in the case of murder committed by a hardy villain for a bribe, the
person plotting the murder and giving the bribe is, perhaps, of the two,
the blacker criminal; and were it otherwise, this would furnish no argument
for precedence in trial. What, then, is the reason? It has
been already given. The legal guilt of the accessory depends on the
guilt of the principal; and the guilt of the principal can only be established
in a prosecution against himself. Does not this reason apply in full
force to a case of treason? The legal guilt of the person who planned
the assemblage on Blennerhassett's Island depends not simply on the criminality
of the previous conspiracy, but on the criminality of that assemblage.
If those who perpetrated the fact be not traitors, he who advised the fact
cannot be a traitor. His guilt, then, in contemplation of law, depends
on theirs; and their guilt can only be established in a prosecution against
themselves. Whether the adviser of this assemblage be punishable
with death as a principal or as an addessory, his liability to punishment
depends on the degree of guilt attached to an act which has been
perpetrated by others; and which, if it be a cirminal act, renders them
guilty also. His guilt, therefore, depends on theirs; and their guilt
cannot be legally established in a prosecution against him.
The whole reason of the law, then, relative
to the principal and accessory, so far as respects the order of trial,
seems to apply in full force to a case of treason committed by one body
of men in conspiracy with others who are absent. If from reason we pass
to authority, we find it laid down by Hale, Foster, and East, in the most
explicit terms, that the conviction of some one who has committed the treason
must precede the trial of him who has advised or procured it.
This position is also maintained by Leach in his notes on Hawkins, and
is not, so far as the court has discovered, anywhere contradicted.
These authorities have been read and commented on at such length that it
cannot be necessary for the court to bring them again into view.
It is the less necessary because it is not understood that the law is controverted
by the counsel for the United States. It is, however, contended that
the prisoner has waived his right to demand the conviction of some
one person who was present at the fact, by pleading to his indictment.
Had this indictment even charged the prisoner according to the truth of
the case, the court would feel some difficulty in deciding that he had,
by implication, waived his right to demand a species of testimony essential
to his conviction. The court is not prepared to say that the
act which is to operate against his rights did not require that it
should be performed with a full knowledge of its operation. It would
seem consonant to the usual course of proceeding in other respects in criminal
cases, that the prisoner should be informed that he had a right to refuse
to be tried until some person who committed the act should be convicted;
and that he ought not to be considered as waiving the right to demand the
record of conviction, unless with the full knowledge of that right he consented
to be tried. The court, however, does not decide what the law would
be in such a case. It is unnecessary to decide it; because pleading
to an indictment, in which a man is charged as having committed an act,
cannot be construed to waive a right which he would have possessed had
he been charged with having advised the act. No person indicted as
a principal can be expected to say, "I am not a principal. I am an
accessory. I did not commit, I only advised the act."
The authority of the English cases on this
subject depends, in a great measure, on the adoption of the common law
dectrine of accessorial treasons. If that doctrine be excluded, this
branch of it may not be directly applicable to treasons committed within
the United States. If the crime of advising or procuring a levying
of war be within the constitutional definition of treason, then he who
advises or procures it must be indicted on the very fact; and the question
whether the treasonableness of the act may be decided in the first instance
in the trial of him who procured it, or must be decided in the trial of
one who committed it, will depend upon the reason, as it respects the law
of evidence, which produced the British decisions with regard to the trial
of principal and accessory, rather than on the positive authority of those
decisions. This question is not essential in the present case; because
if the crime be within the constitutional definition, it is an overt act
of levying war, and, to produce a conviction, ought to have been charged
in the indictment.
The law of the case being thus far settled,
what ought to be the decision of the court on the present motion?
Ought the court to sit and hear testimony which cannot affect the prisoner,
or ought the court to arrest that testimony? On this question much has
been said -- much that may perhaps be ascribed to a misconception of the
point really under consideration. The motion has been treated as
a motion confessedly made to stop irrelevant testimony; and, in the course
of the argument, it has been repeatedly stated, by those who oppose the
motion, that irrelevant testimony may and ought to be stopped. That
this statement is perfectly correct is one of those fundamental principles
in judicial proceedings which is acknowledged by all, and is founded in
the absolute necessity of the thing. No person will contend that,
in a civil or criminal case, either party is at liberty to introduce what
testimony he pleases, legal or illegal, and to consume the whole term in
details of facts unconnected with the particular case.Some tribunal, then,
must decide on the admissibility of testimony. The parties cannot
constitute this tribunal; for they do not agree. The jury cannot
constitute it; for the question is whether they shall hear the testimony
or not. Who, then, but the court can constitute it? It is of
necessity the peculiar province of the court to judge of the admissibility
of testimony. If the court admit improper or reject proper testimony,
it is an error of judgment; but it is an error committed in the direct
exercise of their judicial functions. The present indictment charges
the prisoner with levying war against the United States, and alleges 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
witnesses. It is proved by a single witness. 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
accessories should render it unnecessary; and there is not only no
witness who has proved his actual or legal presence, but the fact of his
absence is not controverted. The counsel for the prosecution offer
to give in evidence subsequent transactions at a different place and in
a different state, in order to prove -- what?The overt act laid in
the indictment? That the prisoner was one of those who assembled
at Blennerhassett's Island? No: that is not alleged. It is
well known that such testimony is not competent to establish such a fact.
The constitution and law require that the fact should be established by
two witnesses; not by the establishment of other facts from which the jury
might reason to this fact. The testimony, then, is not relevant.
If it can be introduced, it is only in the character of corroborative or
confirmatory testimony, after the overt act has been proved by two witnesses
in such manner that the question of fact ought to be left with the
jury. The conclusion that in this state of things no testimony can
be admissible is so inevitable that the counsel for the United States could
not resist it. I do not understand them to deny that, if the overt
act be not proved by two witnesses so as to be submitted to the jury, all
other testimony must be irrelevant; because no other testimony can
prove the act. Now, an assemblage on Blennerhassett's Island is proved
by the requisite number of witnesses; and the court might submit it to
the jury whether that assemblage amounted to a levying of war; but
the presence of the accused at that assemblage being nowhere alleged except
in the indictment, the overt act is not proved by a single witness; and,
of consequence, all other testimony must be irrelevant. The only
difference between this motion as made, and the motion in the form which
the counsel for the United States would admit to be regular, is this: It
is now general for the rejection of all testimony. It might be particular
with respect to each witness as adduced. But can this be wished,
or can it be