Opinion on the motion to introduce certain evidence in the trial of Aaron
Burr, for treason, pronounced Monday, August 31.
The question now to be decided has been argued in a manner worthy of its
importance, and with an earnestness evincing the strong conviction felt by the
counsel on each side that the law is with them.
A degree of eloquence seldom displayed on any occasion has embellished a
solidity of argument, and a depth of research, by which the court has been
greatly aided in forming the opinion it is about to deliver.
The testimony adduced on the part of the United States, to prove the overt
act laid in the indictment, having shown, and the attorney for the United
States having admitted, that the prisoner was not present when the act,
whatever may be its character, was committed, and there being no reason to
doubt but that he was at a great distance and in a different state, it is
objected to the testimony offered on the part of the United States to connect
him with those who committed the overt act, that such testimony is totally
irrelevant, and must, therefore, be rejected.
The arguments in support of this motion respect in part the merits of the
case as it may be supposed to stand independent of the pleadings, and in part
as exhibited by the pleadings.
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
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 object 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 Edward 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
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 accessary, 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 may 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 independent
of that doctrine which attaches to the accessary the guilt of his principal.
If in adjudged cases this question has been taken up and directly decided,
the court has not seen those cases. The arguments which may be drawn from the
form of the indictment, though strong, are 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, 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 party, or was guilty of any thing 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 correctly by
Judge Tucker, in a work, the merit of which is with pleasure acknowledged. But
if a spurious doctrine has been introduced into the common law, and has 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
It is unnecessary to trace this doctrine to its source for another reason.
The terms of the constitution comprise no question respecting principal and
accessary, 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 has 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, cooperating 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 accessary 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
extrajudicial, 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 infinitely 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 extrajudicial. 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 some 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
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 accessaries 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 the 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 indictment 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.
2d. 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
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 manœuvre 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 give the crime a sufficient degree of
malignity to convert it into treason, to render the guilt of any individual
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
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 act." "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
Lord Hale says, (149. 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 colours 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
"Only the general expressions in all the indictments of this nature
that I have seen are more guerrino arraiati, arrayed in a warlike
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 Ievatum, but not
It it 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. Hawk. c. 17. s. 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
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
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
"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 offense.
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, colours, &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 prisoners'
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 afterwards states at large the cases of Damaree and Purchase,
from 8th 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, s. 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, s. 9. "An assembly armed and arrayed in a warlike manlier 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." "It
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
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 of 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 a 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
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 his 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 and 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 pretence 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 practise hostility.
Several judges of the United States have given opinions at their circuits on
this subject, all of which deserve and will receive the particular attention of
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 any 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 Paterson, 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 of 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 with 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, that
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
"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 he 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
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. Our 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 would be sufficient for
the purpose, as to require the actual employment of force to render the object
But it is said, all these authorities have been overruled by the decision of
the supreme court in the case of the United States against Swartwout and
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 endeavour 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 recognised, 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
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 actually
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
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 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 of war against the United
Now 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 Paterson 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 communications 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 mean 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
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 say, "The question, then, is, whether this evidence proves Colonel
Burr to have advanced so far in levying an army as actually to have assembled
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 array 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
"The travelling of individuals to the place of 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 marching from
places of partial to a place of general rendezvous, would be such an
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
"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 Mathew
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 were
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 genera!
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
general place of 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 was intended as a definition of
an assemblage which would amount to levying war, the definition requires an
assemblage at a general place of 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 the 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. It 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 them 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 they ought not to be so understood when they
say, 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 already 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 expressions, 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, they express themselves so as to show that this idea was never
discarded, and they use 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 was 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,
observed, "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 Stales, 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 be 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 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 at tempt it without them. Nor did the
court consider the actual application of the force to the object, 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 thought 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 was 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 levying 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? Is 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 bodies 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 Hawkins, b. 2. c. 25. sect. 84. and c. 23. sect. 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
petty jurors at least shall be summoned from the county where the offence was
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, p. 149. speaking
of the treason of 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 p. 220. Foster repeats this declaration. It is also laid down in Hawk. b.
8. c. 17. sect. 29. 1 Hale, 121. 1 East, 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 of William 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 the 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, 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 accessary 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 accessary 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 accessaries in high treason; all are principals. Every
instance of incitement, aid, or protection, which in the case of felony will
render a man an accessary 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 accessary 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 does 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 his 1st vol. p, 615. says, "Regularly no man can be a
principal in felony unless he be present." In the same page he says,
"An accessary 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 accessary 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
Foster adds, p. 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 this general principle will serve to illustrate it. (See
Hale, 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 p. 449. giving the reason for the decision in the case of the Lord
Dacres, 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. See Hale, 534.
In both the cases here stated, the persons actually set out together, and
were near enough to assist in the commission of the fact. That in the case of
Pudsy 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,
350. plainly supposes the same particular design, not a general design composed
of many particular distinct facts. He supposes them to be cooperating 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 particular 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
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 as
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 the 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 cooperate 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
cooperation 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 accessary, and not a principal.
But in treason, it is said, the law is otherwise, because the theatre of
action is more extensive.
This 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 accessorily, and solely in virtue of the common law
principle, that what will make a man an accessary 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 which 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 Paterson, in Mitchell's Case, has been cited on this
point. 2 Dall. 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 Alleghany, and
the overt act laid 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 Alleghany, for the purpose of
committing acts of violence at Pittsburgh. That there was also an assemblage at
a different time at Couches 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 Couches 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 Couches 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 ran 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 witnessess.
But what was the opinion of the judge in this case? Couches fort and
Neville's house being in the same county, the assemblage having been at Couches
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 Couches, and the marching from thence, and
Mitchell was proved to be guilty by more than two positive witnesses. But
without deciding this to he the law, he proceeded to consider the meeting at
Couches, 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
Couches, 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 Paterson 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 Jefferies 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, and 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 perfectly parallel, and the decisions 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
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 to 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 that 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, 214. 288. and 1 East, 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 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 will 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 the 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 in which he has expressly treated, to
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 Edw. 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 where 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 be insufficient, 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 with himself, and with the general principles of law,
only by permitting the limits which he has himself given to his own dictum, to
remain where he has placed them.
In p. 238. Hale is speaking generally of the receiver of a traitor, and is
stating in what such receiver partakes of an accessary. 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
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 it
"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
Upon this point Keeling, 26. and 1 Hale, 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 accessary 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. Keeling says, an accessary
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, 625. immediately preceding that which has been
cited at the bar. He says, "If A. be indicted as principal, and B. as
accessary before or after, and both be acquitted, yet B. may be
indicted as principal, and the former acquittal as accessary 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 accessary, while an acquittal as accessary
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
accessary, the question recurs, on what legal ground does this distinction
stand? I can imagine only this. An accessary 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 an
accessary must be special. The very allegation that he is an accessary must be
a special allegation, and must show how he became an accessary. 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
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
makes the guilt of the assemblage his guilt, and in the other case the
procurement by the individual makes 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
is 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 or 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 conjectures 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 Keeling, Hale and East are to 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 eighth 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 truly said to be "informed of the nature and cause of the
accusation," unless the indictment shall 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 accessary before the fact into the principal, and
to make the act of the principal his act. The accessary 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 decisions 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 absolutely
requiring it, unless I could center respecting it with the judges of the
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 is within the
definition of levying war, and, independent of the agency of the common law,
does actually levy war, then the advisement or procurement is an overt act of
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 he 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 he 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. It, 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 in the general conspiracy, are to be considered as traitors."
This opinion docs 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. This 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 on 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
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 has 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 was 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
It is a settled principle in the law that the accessary cannot be guilty of
a greater offence than his principal. The maxim is accessorius sequitur
naturam sui principalis; the accessary follows the nature of his principal.
Hence results the necessity of establishing the guilt of the principal before
the accessary 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 accessary to murder unless the fact has
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 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 accessary was originally the
same, and although in many instances it is still the same, the accessary could,
in no case, be tried before the conviction of his principal, nor can he yet be
tried previous to such conviction, unless he requires it, or unless a special
provision to that effect be made by statute.
If, then, this was a felony, the prisoner at the bar could not be tried
until the crime was established by the conviction of the person by whom it was
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 accessary
can never precede the conviction of the principal? Not because the one is
denominated the principal and the other the accessary, 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 accessary 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 criminalty 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 accessary, 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 criminal 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 accessary,
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
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, any where 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
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 operations. 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 accessary; 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 doctrine 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 accessary, rather than on the positive authority of those
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 set 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 relevant 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 not 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 accessaries
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, that all other testimony mast 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 no whore 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 deemed
necessary? If enough is proved to show that the indictment cannot be supported,
and that no testimony, unless it be of that description which the attorney for
the United States declares himself not to possess, can be relevant, why should
a question be taken on each witness?
The opinion of this court on the order of testimony has frequently been
adverted to as deciding this question against the motion.
If a contradiction between the two opinions does exist, the court cannot
perceive it. It was said that levying war is an act compounded of law and fact,
of which the jury, aided by the court, must judge. To that declaration the
court still adheres.
It was said that if the overt act was not proved by two witnesses, no
testimony in its nature corroborative or confirmatory, was admissible, or could
From that declaration there is certainly no departure. It has been asked, in
allusion to the present case, if a general, commanding an army, should detach
troops for a distant service, would the men composing that detachment be
traitors, and would the commander in chief escape punishment.
Let the opinion which has been given answer this question. Appearing at the
head of an army would, according to this opinion, be an overt act of levying
war; detaching a military corps from it for military purposes might also be an
overt act of levying war. It is not pretended that he would not be punishable
for these acts, it is only said that he may be tried and convicted on his own
acts, in the state where those acts were committed, not on the acts of others
in the state where those others acted.
Much has been said in the course of the argument on points, on which the
court feels no inclination to comment particularly, but which may, perhaps, not
improperly, receive some notice.
That this court dares not usurp power is most true.
That this court dares not shrink from its duty is not less true.
No man is desirous of placing himself in a disagreeable situation. No man is
desirous of becoming the peculiar subject of calumny. No man, might he let the
bitter cup pass from him without self-reproach, would drain it to the bottom.
But if he has no choice in the case; if there is no alternative presented to
him but a dereliction of duty, or the opprobium of those who are denominated
the world, he merits the contempt as well as the indignation of his country,
who can hesitate which to embrace.
That gentlemen, in a case the most interesting, in the zeal with which they
advocate particular opinions, and under the conviction in some measure produced
by that zeal, should on each side press their arguments too far, should be
impatient at any deliberation in the court, and should suspect or fear the
operation of motives to which alone they can ascribe that deliberation, is,
perhaps, a frailty incident to human nature; but if any conduct on the part of
the court could warrant a sentiment that they would deviate to the one side or
the other from the line prescribed by duty and by law, that conduct would be
viewed by the judges themselves with an eye of extreme severity, and would long
be recollected with deep and serious regret.
The arguments on both sides have been intently and deliberately considered.
Those which could not be noticed, since to notice every argument and authority
would swell this opinion to a volume, have not been disregarded. The result of
the whole is a conviction as complete as the mind of the court is capable of
receiving on a complex subject, that the motion must prevail.
No testimony relative to the conduct or declarations of the prisoner
elsewhere, and subsequent to the transaction on Blennerhassett's island, can be
admitted, because such testimony, being in its nature merely corroborative, and
incompetent to prove the overt act in itself, is irrelevant, until there be
proof of the overt act by two witnesses.
This opinion does not comprehend the proof by two witnesses that the meeting
on Blennerhassett's island was procured by the prisoner. On that point the
court, for the present, withholds its opinion for reasons which have been
already assigned; and as it is understood from the statements made on the part
of the prosecution, that no such testimony exists, if there be such, let it be
offered and the court will decide upon it.
The jury have now heard the opinion of the court on the law of the case.
They will apply that law to the facts, and will find a verdict of guilty or
not guilty, as their own consciences may direct.
[John Marshall, C.J.
Background of this case, bio of