The enquirer — Richmond, Va., 1807-09-26 00:00:00, page 2

** At the fame time, in order to prevent in
convenience to the merchants from the faid de
termination not having heeu fooner made known
to them, I hep leave to recommend to your
Grate to give Hired ions for admitting to entry
loch American fhips of the above description
as m iv arrive in the ports of Ireland prior to
the 81ft of Odnbcr; after whichday, the rule
that ft»ips being American property, hut not
of the built of America, and failing under fea
letters, (hoitld not be confidered as entitled to
import under the ad 37th Geo. III. cap. 27.
Should be invariably adhered to.
“ I have the honor to b«-, Scr. Sec.
“ HAWKESBURY.”
...iv
(ftfie <8^nr|turcr*
—ess=rj.~:.-— - — —
RICHMOND, 26tb Sf.ftfmufr,
TRIAL OF AARON BURR.
SKETCH of the celebrated ARCUMfcNT held,
oti the propofitions fuhmitted to the Court
receding tie charge of Treafon.
[CONTINUED ]
Mr. Wirt's Speech Continued.
I proceed, Sirs, to the geuth man’s third
point, in which he f.ys he cannot poflibly fail:
it is this : “ becaufe if *he prifoner be a principa*
in the treafon at all lie is a principal in the fe
cond degree and his guilt being of that kind
which is termed derivative, r.o farther parol e\ i
dence can be let in to charge him until we Ihew
a record of the convidon of the principals in
the firft degree.” By this pofition the gentle
man is underftood to advance in other term«
the common law dodrine, that when a man is
rendered a principal in treafon by ads which
Would make him an acccftary in felony, he cac
liot be tried before the principal in the fitft de
£ree. I believe this to he, indeed, the dodrine
of the common law. But it ha* no manner of
application to this cafe ;
1ft. Becaufe it is the there creature of the
common law of England.
2dly. Becaufe if the common law of England
be our law-, this polbion aflumes what is de
nied, that the condsd of the prifoner in this
i-dic 13 ui hii accexuona: nature.
1. Brcaufc this pofition is the mere creature
of the common law. Neither our conftitution
nor aft of congrefs diftinguifh between prii.ci
pa'siu the firft fc fecond degree ; all who levy
war againft the U. S. whether prefent or abfent,
all who are leagued in the confpiracy whether
on the fp»t of the aftemblage, or performing
fome minute & inconfidcraMe part in it, a thou
fand miles from the feene of aftion, incur equal
ly the fentenre of the law : they are all equally
traitors. This fcale, therefore, which graduates
the guilt of the offenders and eftablifties the or.
der of their refpeftive trials, if it ever cxifted
litre, i; compleatly abrogated by the hight ft au
thorities in this country :—The convention
which formed the conftitution and defined trea
fon ; congrefs which legiflated npon that defini
tion, and the fupreme judiciary of the country
expounding the conftitution and the law have u
rited in its abrogation. B it let us for a mo
ment put the convention, congrefs and judici
ary a fide and examine how the cale will ftanrf :
ft ill this fcale of moral guilt which Mr. Wick
ham ha; given us, is the creature of the common
law; hut he himfeif in another branch of his
argument has emphatically told u» that the
common law docs not exill in this country ;
has ftated that the creature prefuppofes the
creator ; and that where the creator does not
cx’ft, the creature cannot. The common law,
then, being the creator of the rule which Mr.
Wickham has given us, and that common law
not exifting in this country, neither can the rule
which is the mere creature of it, exifl in this
country. So that the gentleman has himfeif
furniftied the argument which refutrs this infal
lible point of his, on which he lias fo much re
lied. But to try his pofition to its utmofl ex
tent, let us not only put afidc the conftitution,
aft of Congrefs, and decifion of the fupreme
court, hut let us admit that the common law
docs exift litre ; ftill, hrforethe principle could
app'y, it would remain to be proven that the
conduft of the prifoner in this cafe has been ac
cent) rial or in other words, to give it its
bro- d. ft footing, that his afts in relation to this
treafon arc of fuch a nature as would make him
an acceftbry in felony.
Beir g now on the general doftrine of princi
pal and acceftbry, as they txlft at common law,
1 will follow the gentleman through the whole
range of bis remarks on the fubieft, and notice
fome which he advanced under 'his firft held.— i
He faul that acceftbries are the mere creatures
of the common law : hence, faid he, when a
ftatK’c is made in affirmance of common law or
in aid of it, all common law confrquences fob
low ; as when a ftatntc is merely declaratory
of a common law felony, whether the ftatute
lays any thing about acceftbries or not, they
are embraced by it, becaufe they ex'fted in the
offence at common law : but where the ftatute
creates a new felony, not known at common
law, as the ftatute of Henry 8, mikin.' piracy!
? ft|ony* acceftbries arc not comprehended by
it. Upon this ground-work lie tns hnilt the argu- :
rnent that as we have no common law, the con
ftitution and aft of Congrefs which define trea
lO", ftand alone ; and as they merely embrace
tub who aftuaily levy war and are therefore
the principals, thole who procure or arc olher
e acceftbry <o it, are not comprehended:
and hence he concludes that the prifoner who
merely brought about this trrr.fon by procure
ment, is not within the conftitution and aft of
Congrefs. This argument is pc; feftly charac
ter.ft.c of the ingenuity and fubtlety of the mind
which produced it ; but let us try the ftrcgih
of this cunouOy woven web. The firft reruaik
ab.e feature ahoirt it is, that the whole of it Is
an emanation of that common law, upon whof
rrm-exiftcuce in this country the gentleman
founds his coodufiop. His prrrnifes are laid in
the common law ; and be derives from the com
mon law of interpreting the Britilh ftatutcB, a
pt’ncip'f which he applies analogically to the
j lerp-etatinn of our conftitution; and which
'ves him his refutt, otilf upon the t>or,„latum
atiat there is no common law in the U. S. But
tet u. ware th-s ohjeftion and examine his pre
Imifes themfelves.
rnrr, mu true that a Ratnte made in affir
mance of common Jaw or in aid of if, carries a
long all common law cnnfequencr* > The
hook referred to by the gentleman, dor* not
prove it: lo'h Sc. Tr. 4*6, which he cited as
authority without producing it, is mrrrly the
argument of Hume Campbell one of the conn,
frl in the note, and againft whom that cattfe
wa t determined : I believe, fir, it is not ufual
lor a genilaman cifit'K an ahfent anther in fnp
port ,,f hi, doflrine to refer to the argument of
count* I as the opinion a>t the court. Hut ad
fni’ting that the dictum of ilurne Campbell
were awherity, be d• es not fiate the dodrine
avhich be is ritrrl to fnpport. He fays merely
that 44 If a ft-itu'c fpeak- of mattrrj known at
corrmontaw, it itiufl aj to that matter, be con
flriirdsnil eg.‘ended according to tf e common
law." I i fnpport of bis pofvon Hume C*mp
l.rll cite* Cok ■ Lit. 3*1, Hobart 93 and 6 mod
j-if. Of ifufc three r-uthoritic* Mr. Wickham
conceded to the gentleman as relates \o attain
der, it would not avail him ; becaufe in order
to eX'rart from tbe common law the rule which
he applies analogically to the conftrurtion »f our
conftitution and art of Congrcfs, he muft fliew
that when a ftatr.tc creates an offence, and is fi
lent as to acceffories, no accederies are embrac
ecf the by ftitute. It r- ill perplex the grntleman
to ihew t•'ii8 ; at all events the refearch neceffary
to it would require more time than they have
allowed us to difeover the authorities which
would fupport the pofition. The dort.ine up
on this fubjert fo far as I have htftn able to trace
it, is this ; that when an art of parliament '
makes an offence and fays nothing of accrffo
ries, they are nevertheless embraced ; although
'l is true that the peculiar wording of a
ftafute may prrverit that confequenec. ]
Hale’s P. C. Cl 3. “ It remains therefore
that the bufinefs of this title of principal
ami accefTiry refers only to felonies whe
thtr by the common law, or by art of par
liament.—As to felonies by art of pirha- i
merit, regularly of an art of parliament marts
an offence, tho’ it mentions nothing of aece(furies
before oi after, yet virtually and confequcnlially
thole that connlel or command the offence arc
a ce dories before, and thofe that knowingly re
ceive the offender are accefTories after: — Id.
614. “ Though generally an art of parliament
creating a felony renders eenfequcntial/y accef
lorie< before and after within the fame penalty,
vet the fpecial penning of the art of parliament
in fuch cafes fometirnm varies the eafe.” Hence j
it is, that is from the fpreial penning, that the
lUtute of pyracy cx'.endi only to principal?, j
1 >1
fcieAtfd Ilobart as auxiliary to the StateTriali.
Hobart is an ancient book not frequently found
ill modern libraries: ire is not in mine; and
from the abrupt manner in which lids motion
has been flirted upon us and the extent of legal
ground which it covers, 1 have not had time to
hunt for tint author through the town : whe
ther he fupport? even Hume Campbell I am,
therefore unable to lay, 1 fliall luggeft a reafon
prefently to render it probable that he dues not.
The other two authorities to which he ufeis
do not fupport him. Coke Littleton has no
thing like it: he gives, indeed, in the page re
ferred to, three rules for theconflrultion uf lla
tutes, a* 1(1. That one par' of it is to be ex
pounded by another : 2d. That the words of
an a{l of parliament muit be taken in a lawful .
and righful fenfe, and thirdly, that conJlruSlion
| mnfl he made of a flatute in fupprcjion of the
! mtfchief and in advancement of the remedy, rt
<7 ui hat ret in lit era haeret in cortice. ’I his i< all
lie fays upon the fubjefl ; and in all this we
have nothing which referable8 Mr. Hume C-imp
bsll’s pofilion. The other authority to which
he rtf.-re, s mod. M3, it is .remarkable, it alfo
the argument of counfel, fergeaut Pcngelly ;
this learned fergeant afl'trts indeed, a princi
ple which I believe to be true; but it is one
much more reftri{ted and materially variant
from that of Hume Campbell, ,md of couffe
fli'l more variant from that <>fMr. Wickhati. r
fpeaking of the phrafe arrrfl of judgment whi-*h
h d been ufed in a flatute of William tlie 3d,
as being a phrafe known to the common law,
he fays, “ when snsA of parliament makes ufe
of fuch a term generally, it fliall receive the
fame fenfe that the common law takes it in and
no other:” in fupport of which Penerlly cites
Hobart 97, 98, the very author and page cited
by Hume Campbell to fupport his duiHrine :
hence I think it probable that Hobart flops at
the limits given by feijeant Per.gelly. 1 he rr
fu'.t of the invefligation is, that Mr. Wickham’s
broad principle, that a flatute nude in aid or
affirmance of the common law oarrira with it
all common la w confequences is reduced to this ;
that when a flatute ufes a common law phrafe.
that phrafe fhall receive the fame fenfe in the
(latiile which it had at common law ; a prtn
ciple to which lie is very welcome, but which
will do him no manner of good—fo that down
comes one of the pillars which fupported this
air-drawn aigumctit.
JL.et ns examine anotfier : •* it a new felony
be created by ftetute no common law ronfe
quences follow In fupport of this doCtrinc
the gentleman refers to l Hale’s P. C. S54-5,
and the authority, at firlt view, ferrns to coun
tenance hisdoClrine ; it requires, however, hut
to he more clofely and extenfively* examined to
perceive that the pnfifage, in the light in which
Mr. Wickham unrierftane’. it, is not law : the
paffage is this, “ If a man he attaint of piracy
before commiffioncrs of Oyer and Terminer
grounded upon the ftatute of 28 H. 8, chap. 15
by indictment and vrrdiCl of twelve men accor
ding to the courfe of the common law, he for
feits h:s lands and goods by the ftatute of 28
H. 8, chap. 15. but this woiks no corruption
of blood, becaufe it is an offence whereof the
the common law takes no notice, and though it
be enacted they (hall fuffer and forfeit as in cafe
of lelony, yet it alters not the offence.” In
fHppoit of this Ilale cites Co. P. C. cap. 49,
P- 112 :—but he adds, 4‘ vide tamen contra Co.
Litt. fee. 745, p. 391. The paffige in the lat
ter author is thus : 4‘ There is alfo a felony pit
nifhable by the civil law becaufe it is done upon
the high fea as piracy, robbe;y. or murder,
whereof the common law did take no notice,
becaufe it could not be tried by twelve men.
If thispyracy be tried before the L rd Admiral
in the court c. toe Admiralty according to the
civil law, and the delinquent there .attainted
yet fhall >t wotk i.ocorrup'ion of blood nor for
feiture of bis lands ; otberwife it is, if he be at
tainted brfore conunifftoners by force of the ftatute
of 28, //. 8 ” Hence it appears that the com
mon law coiifcquence ofattaint'er depended on
the tribunal, the form of trial, and the law
under which the pirate was tried : fince if tri
ed before com mi Hi >ners under the f.atute, the
common law cnnfcqoence of attainder did fol
low, a though the felony did not cxift at com.
nmn law but was newly created by ftatute.
Hale himfelf in the page *55, qualifies the ge
nerality of his expreffions in the paffagejuft read.
In the par agraph immediately fucreeding it, he
takes up the firrt branch of the pofiiion juft read
from Coke : “ if a man he attainted before the
admiral of treafon or felony committed upon
the fea, Sec. according to the courfe of the civil
law, yet it works no corruption of blood. See,
the manner of the trial being arcordng to the
courfe of the civil law, &c.” He proceeds—
“ It therein an attainder of treafori or felony
done Upon the fea, upon thisJlatute of 28th H.
8, according to the courje of the common law,
it fee ms that the judgment thereupon works cor
ruption of blood ; becaufe the concrnijfton itfclf is
under the great feal warranted by ail of parlia
ment, and the trial is according to the courfe of
tve ccn,>non law, fife. 44 and with this agrees
Co. Litt. fee. 745, p. 391, nay, I think farther,
that if the in diit men t of piracy before fitch com
miflioners, upon the ftatute of 28, H, 8, be
formed as an indictment at rommon law, to
wit, vi etarmisandfelonice, &c. that he might
he !hereupon attainted and the blood corrupt
ed.” Hence in the opinion of Hale himfelf, it
depended upon the form of the indictment and
the tribunal, whether the common law confe
qucuce of attainder would follow a conviction
fur piracy on this ftaiute. The refult is, that
although ftatute do create a felony unknown to
the common law, yet common law confcquen
cc8 may follow a conviction upon it ; which Is
prccifely the reverfe of the pofition contended
for by Mr. Wickham. But if this Doint were
9 II lie’s P. C. 18—HcTe 632, " A* in other
felonies fo in this, theie are or may be accrflo
ries before ami after; for though thisbeafelo
n>' by aft of parliament that /peaks only of tbofe
that commit the offence, yet confccjurntially and
incidentally aceetloiies Kf>r<* and after are in.
eluded, and fo in every ne'o/latute making a fe
lony without fpeakir.g of aert Iforics before or af
ter.” The hatute of 5, H. 4, eap. 4, was a
ll i'ute to prohibit the mulplication of gold or
filver, that is alchymy, (vid. Wilfon’s edition of
Hale’s P. C. 614 and note a.) This was an of
fenbe not exifting in any fliapc at common law,
and in truth, never exifting any where but in
imagination. Hale in the page juft referred to,
fpcak'ng of Ibis ftatutc.fiys, “And altbo' thejla
te-te mentions not accejfaries before or after, yet
this dilute making the f.ift felony, doth confe
qianlimVy I 'J ' j e ft iccclfories before & after to the
penalty ; though this he made a quaere by Dyer
83 in Eden’s Cafe, yet it feems now Jett ed ac
cording t o the opinion of my Lord Coke P. C. cap.
20, that there may be acctjforiej before if after.”
Here the authority is conclufive of the point,
that although a (lalute creates a new felony un
known to the common law, and although it
fays nothing about acccITories tliry arc never
■ thelcfs comprehended as a neceflary confc
J quence or incideitf. I refer you alfo, fir, to
page 704 of the fame author, where the doc*
i irine is refuted : and where on the authority ot
Sir Edward C<>ke, it is carried fo far as to ftate,
that when a ftatute makes a felony and exprefsly
[comprehends acceflories before the faft, being
Client as to thofr after it, yet, notwithftanding
j t he maxim exprtffiim facit teffdre taciturn, accef
i faries after are virtually included. From this
examination two conclulions are fairly deduci
ble.
l- rii, that when a nature creates a new felony
unknown to the common law, although filch
ftatute fays nothing about accefTbries to that
felony, yet they txift and are pumfliable under
the act.
Secondly. That accefTbries are not the mere
creatures of the common law ; they may de
rive their exiltrnre from a ftatute folely% and
t; at by mere implication under that Itatutr.
What, then, becomes of the gentleman’s nice
tiflue, his web fo delicately put together and
waving and glittering in the fun? It breaks
and vanifhas at the touch.
Since then accefTbries are not the creatures
merely and folcly of the common law, it makes
no difference whether the common law exifts
here or not : accefTbries may neverthelcfs cxift.
Since a ftatute creating an offence, impliedly
embraces accefTbries, not by the operation of
common law, but by the reafon and nature of
things ; an american ftatute may impliedly em
brace accefTbries fince whatever we may think
of the exillcnce of the common law in thi6
country, no American, I hope, will doubt that
reafon and its deduXions may exift here.
But let u- admit for the fake of argument
what is certainly difproved : that acceflorii-s
are the mere creatirres of the common law ;
and let us alfo admit that our conftitution and
! aift of congrefs do not embrace accefTbries : is
it fo very clear that we have no right to refort
to the common, in thii cafey to implicate ac
ccflbrial traitors. I do not, myfelf, think this
enquiry nrct ffary : but it may appear fo to
you ; and I would leave no fuhjeX untouched
which the court may confidcr as involved in the
debate.
It would not be very bold in me, fir, to
argue for the exiftence of the common law m
majpr in this country. Do not let it for a mo
ment be underftood that I meant to argue for
this ; I fay only that it would not be very bold
in me to do this ; and I fay fo becaufe a ma
jority of the federal judges, fo far a; their opi
nions have been made known have held that
opinion. In Worrels cafe cited from Dallafs,
the court wa9 divided ; Judge Chafe thought
the common law in force, judge Peters thought
otherwife. In a fuhfrquent cafe and that a
criminal one, I mean the cafe of Williams, judge
Ellfwmth held that the whole of the common
law was in full force, and even that unnatural
and abfurd idea that a man is forever the fubjeX
of that country in which it is the pleafure ot
his parents that he fnall he born. Kir. Tucker
informs us that judge Wafhington was alfo of
opinion that the common law of England is in
force here. Theft* are all the opinions of which
I have heard: Having thus the majority of the
fed* ral judges in favor of the opinion that the
common law of England is in force here, I re
peat that it would not be very bold in me Hand
ing before a federal court to infift on the full
operation of the common law together with all
its confequcnces, and it3 imputed ofTTpring, ac
cefTbries among the reft. But I wdl not avail
myfelf of this “vantage ground.” My own
opinion is a different one. I take the principle
with much greater rcftriXion and on this head
fubmit tliefc rcfleXions to the coniidcralion of
the court.
When a technical term is borrowed from any
art or fcience, we look to that art or fcience to
afccrtain its import a».d lignification. This is
a rule of reafon. It is the foundation of the
principle cited by fcrjeant P mgelly from Ho
bart, that when a ftatutc adopts a common law
term, you take that term in its common law
meaning. It isthe foundation, too of a para
graph in one of the moft luminous and malter
ly ftate papers that ever ft II from the pen of
man : I mean the celebrated report of the Vir
ginia commitfe in 1799 1800 from which I beg
leave to read a fhort exiradt relative to our pre
fent enquiery s—“ Deeply imprefied with thefe
opinions, the general aflcmbly of Virginia, in
ftrudl the fenators and rcquell t'ne reprefenta
tives from this ftate in congrefs to ufe their belt
efforts : to oppofe the paffing of any law found
ed on or recognizing the principle lately ad
vanced that the common law of England is in
force under the government of the U. S. except
ing from fuch oppofition, fuch particular parts
of the common law as may have a fandtion from
the conftitution, fo fir as they are unnect (Tartly
comprehended in the technical phrafes which
exprefs the powers delegated to the govern
ment ; aud excepting alfo fuch other parts
thereof as may be adopted by congrefs as ne
ccfTary and proper for carrying into execution
the power exprefidy) delegated.” Here we
find the recognition of the principle which
common law phrafes takes in the common
law fenfe. Upon the fame ground Judge
Iredell in the cafe of Fries dates in efTcdt
that the cooftitutional terms of our definition of
treafon being borrowed from the Mritifli ftatute,
the framers of our conftitution intended to a
dopt the meaning of tbofe terms as expounded
in the parent country.
Ivft iis apply thru: principles. Whence do
we derive the particular trcafon of levying war ?
l'rom the llritifh ftatute immediately { but ori
entally from the common law. Sir Edward!
Coke in hi* third inftitutc giv< § us a commrnta
ry on th* ftatnte of Edward Ilf. lie divides it1
into members and expounds each of them as he
goes along «—when he comes to the words of1
tne natnte** ou fi horn eleva guerre encounter no- \
Ire frignior le roy"—if a man levy war again ft !
our lord the king, he fays '• this was high trra
fou by the common law ’—although then the
toords ot our definition be derived Immediately
f-orn the ftatute, yet as the fpecies of trea/on
levying war, is tranfplanted from the common
laW| have we not a light to go to the fountain
head, and afcrrfi\in t?iere how much ground it
covered : whit >vrs the nature of the treafon,
what its extent a"d limits ? I do not fpe.ik of
common law ticafons at large, hut this particu
lar treafon of levying war : if we have a right to
; go to the common law for this ptlrpofe, we
' lliall dif over that it comprehended ail who were
leagued in the genera! coufpiraty, whether they
. themfelve* actually levied the war or cat:fed it
I to be levied by others.—I fobmit this idea to
the court not as one which I have had time to
; weigh 5c d’grtl; hut as one which they may per
haps find no: unworthy of confederation. Hat
let me go liiil farther in my admidions : let -ne
admit not only that acut fiorieK are the crratu «s
, of the common law, but aifo that the common
law is not in for e in this country, and further
; that our ftatu'e does not comprehend ncceffo
ries ; ffill before the prifoner cm avail himfelf
ot thefe ad mi Hi oils, it n»u(t be fiiewn that he
is an accrflbry : or in other words that the part
which he bare in this treafon is fu h as would
\bave made him an acceffary in felony. Gen
tlemen Gy that aU are aceeffaries who are
I not aftuaily prefent at the offence : We on
, the contraiy contend that even in inferior felo
n'es a man may he a principal without aftnal
prefenee. Let us examine this; qtieft'on. The
la v takes adiftinftion between aftual and legal
prefence. A man may be legally prefent, al
though aftuaily abl'ent ; and, even in felony, /e
gal prefenee makes a man as much a principal
as aftutrl prefence. I beg leave to introduce a
f ries of cafes which go to unfold and ellahlifh
this dininftion ; and I will preface them with
this remark,, that von will f ad, in the prog■ eG
of tlirfe cafes, the fphere of legal pref nee per
petually extending itfelf in propnrion t<* the
W.c evmrnce tp have occn actually and explHt
ly entered mto, or may be rrafonably collated
| from their number, arm<>, or behaviour at or he
I forethefeene of action, fuch refolutions fo prov
ed have always been confideredas ftronginj-redi
i e".tB.,n c ,^'s °f this kind. And in cafes of h».
I micde committed in confrquenre of them, eve
ry perfon prefent in the ftnfe of the law, when
the homicide hath been committed, hath been
nvolved in the guilt of him that ra,c the mor
w \ J < £f* of Lurd Dacrtfi mentioned
* ij / fey rrpor,eH hY Crompton
and cited by Hale, turned upon this point. The
offences they refp< Vtivcly Rood charged with as
principals, were committed far out of t Mr fig/, t
nud bearing ; and yet hnfh were liolden to Ve
pieteot. It was ficffitient that at the in ft ant the
jaflj nuere com nutted they were of the fame par
ty and upon the fame put/uih and under the fame
engagement and expedition of mutual defence 31
fuff or t UUP tbtje who did thefu(lt ” I
the crime ami the extent of theatre'
which it require* for it* perpetration. I ••ro
ceed to lay the cafes before you. l Hale’s P.
c. 459—“ if divers perfuns come to mate an af
fray. Sec. and are of the fame party and come
into the fame houfe, hut are in feveral rooms of
the fame houfe and one he killed in one of the
rooms, thofe that arc of that party and that,
come for that purpofe, tho* in the ether room*
of the fame houfe, fhall he faitl to he prefent.”
Here the houfe is the theatre, and it is requited
that thofe who are to he implicated as princi
pals fhall be in the other rooms of the fame
houfe. The next i* the cafe of the lord Dacre,
ftated in the fame page : it is this : “ The lord
Dacre acd divers others came tafteal deer in the
park of one Pelham ; Rayden one of the com
pany killed the keeper in the park, the lord D i
cre and the red of the company being in other
parts of the parts, it was ruled that it was mur
der in them all, and they died for it.” Here as
the park was the theatre of the meditated crime
the fcalc of proximity is enlarged, and it was
enough that the lord Dacre and his affociates
were in the fame park to implicate them in the
guilt. The next is Pud fey’s cafe which is thus
ftated, J Hale’s P. c. 534 : Pudfey and two
others, viz. A and B aflault C to retvhim in the
high way, but C efcapes by flight, and as they
were afl'aultinp him, A rides from Pudft-y and
B and aftaultsD, out of the view of Pudfey and
B, and takes from him a dagger by robbery, and
came back to Pudfey and B, and for this Pud
fey was indicted and convicted of robbery;
though be ajfented not to the robbery of D, nei
ther was it done in his view; becanfe they
were all there alfembled to commit a robbery,
and this taking of the dagger was in the mean
time.” Here as the highway and the whole
foreft were the fccne of aftion, a (kill lefs degree
of proximity was required than in either of the
proceeding cafes, and indeed no limit of proxi
mity is ftated at all. Blit this cafe of Pudfey is
irrefiftibly ftrong in another point of view and
contains a principle which covers the cafe at
bar completely ; that principle is this : Pudfey
and his colleagues were leagued for the general
purpofe of robbing; they went out upon this
purpolc ; and although Pudfey was not only ab
fent at the particu/ t abl of robbing U, but gave
no ajfent to that particular »bl, yet he was in
volved in tile guilt of it and fuffered according- j
\y. The fame author, page 537, contains a cafe
which is, if poflible, ft ill ftrnnger lo the fame
purpofe : it is the cafe of two men who go out
for the purpofe of robbing on the high-vruy or
committing a burglary, although one only com
mit the offence, and the other, fo far from being
prefent, is actually engaged in the perpetration
of a different crime at a different place, yet this
other is equally involved in the offence commit
ted by the firft. Hence it is not ablual prefence
which makes a principal in felony : it is merely
their going forth leagued in the famrgener.il
deffgn, arid the willingntfs to co-operate for ef
fecting the common purpofe. Fuller 313-50,
thus treats the fulJ- <f>—** When the law requir
eth the prefence of the accomplice at the per
pretation of the faCt in order to render him a
principal, it doth r.ot r< quire a ftriCt, actual, im
mediate prefence, fu'-h a prefence as would
make him an eye or ear wit net's of what paffeth.
Several perfons fet out together upon one com
mon defign, be it murder or other felony or for
any other purpofe unlawful in itfelf, and each
taketb the pojl afigr.ed him ; fume to commit
the fad, others to watch at proper diftances oc
ftafions to p event a furprize, or to favour if
need be, the efcape of thofe who are more imme
diately engaged: They are ail, provided the faCt
be commuted, in the eye of the law prefent at
*t i for it tv as made a common caufe with them,
each man operated in his Jlation towards the
fame common end ; and the part each man took,
j tended to give countenance, encouragement, and
\ proteSlion to the whole gang, and to enfure the
fnccefs of their common enterprife.” The reafon
I of the law is the foul of the law. What is the
reafon then which according to Fuller, confti
tutes this legal prefence ?—It ij, that the caufe
is a common caufe; that each man operates in
his ftation towards the fame common end ; that 1
the part each man takes, tends to give counte
nance, encouragement, and protection to the
whole* gang, and to enfure the fuccefs of their
common enterprise. Whomever, in any crime,
performs a part within this defeription, is legal- 1
ly prefent and a principal in that crime. Fof- I
t r proceeds “ I will not here multiply cafes
upon the head of conflruflive prefence. This
may be fnfficicnt hy way of illuftration. Others
founded m the fame principle of mutual concert
aid and protetlion, will fall i„, in their proper
placet): In page $5.3-4, he keeps this pro-1
mife “ A genera refolution againft all oppo-1
fers whether filch refolution appeareth upon
/• . »P°P",ar''’" of the Atlantic Hate,, and
fought quiet and folitnde in the hofim. „f rif
welcrn fore As But he carried with him lafte
a..di feiencc and wealth} fand the d,f„r?
■ 19 '* w,(h rvery romantic < mbellif)„n-nt
SlvJ envied l !ft,r"!’bfry ,hHt ShenA ,„e might
ml!l .bloom' *'"*'”<» I'i n ; mufic. t!:-t
| ir.igl.t hare charmed Culyopr and her nymph
! 'os ; an rxtenfive library fpreads its tr iflire.
him*all "the f* Ph:,,,f,pbk3' W*'*'" offtrsf
hi n all the fccreti and myll i.e* „f nature:
peace, tranquility and inn, ten. e Aud tl eir
.II.,,.,, .7o„7J’
Wdlott'l""' Ih.Hcnr, , .v,f„ J
l« d to he lovely even beyond hrr A x and -rac
= eil l 7eV aficompl,fh.aent ,i,xt ( rc.,J, J
^rcfiA.hle, had hleflVd him with her lore anil
made him the lath, r of her cnHd». ... ,
would convince you, hr, tnatibi* i„ | i,, ‘
Let us apply the reafonmg and principle* of
thofe cafes to the cafe at bar. It order to do
lh'8 with propriety, we mult coofi »er the na
ture of the crime charged upon the prloner •
the theatre rcquifite for its perprtratinn and the
various parts to he performed in promotion of
the general purpofe. The charge in the in,lift,
ment is treafon in levying war ngainft the U. S. ;
the objrfts imputed to the pi ilontr ;*rr the »'ci
*ure of Orleans and the reparation of :: c Hate*.
We (hall make a miftaken application of the
doftrinesjuft inveftigated, it \ve apply them to
the overt aft on Blannerhaflitt’s .fl .nd. That
aficmblagc wa* not the ohjrft, the end, the <;a
tafirophe and confummatioi. of the treafon { it
was a mere tranfient and incidental tffcft of it.
At the time then of this afTembiage we are to
conlider the prifoner’s local pofition, not in re
ference to the afTemblage, but to the general and
giand objeft of the treafon ; not in reference
to the ifland, blit to the great theatre which the
trenfim required Sc on which it was afting, from
1 I '<-7 Lhe gentlemen on tHe
«) her fide win u t complain ,,f this as a new
Jdea. Mr, Wickham biiTifelt urged ir and re
iterated it for a different pinpofe, :h,i» the o.
overt zft was n »t the treafon but merely rvi.
deuce or it. Wien then, in the language of the
ealeb juft read, we enquire whether the prifon
cr and the men on the II md were of the fame
party and upon the fame purfuit, t!:e fl .•ftipr*
relates not to the iflmd, which was certainly
not then-purf .it, but to the great and folendid
purpofe of leizmg Orleans, and rending ?be u
f^rctb!y afundcr ; and in this light the,
.771 % .ih* gmc party axd r'ou t hr fame pur
7 ' ,n !h» ''oht t"“y wrn- “ ruder the
-JT 'n'W'”'»t and exfatten cf mutual
defence andfuppert ; it was common caufe
„ q-U't/j thew) eacb m»n operated in his /iutiox,
at one and the fame injlant towards the
„ Jamf ^mmsn end, and the part eacb man
lock, tended to ,<p-ye countenance, entourape
ment and protection to the whole g/.we, and
‘ to enfure the /W, tU. _*__ _
prize : fo that within every renfon and prin
cip t alltgued lor the conflitution of legal pre
tence, they were all equally prefeut. What
though the prifoner give nr> « xr»rtf* .-fTt-nt to
Part:'cllar meeting on the ill.ml; neither
did 1 udfey, in the cafe cited, afTcnt to the par
ticular robbery „f D hy A ;-h„t rhe pu.pofeof
Pm.tcy and A was the fame con»:ron pnrpofe
which involved them in the fame common guilt.
So the pnrpofe of the prifoner and the men up
on the ill ind was a common pnrpofe, and there
fore their guilt is the fame. The part, there
lore, which the prifoner lias in this tranfafiion,
is Inch an one, as in the c.ife ol felony would
make him a principal and not an accrjiry as. the
gentlemen contend.
Tiic lefult is in perfect harmony with the de
cilion of thefupreme court in the cafe of B .li
man and Swartwout. Then we have fe<m that
remotenefs from the feene of the treafon makes
no odds : it is the be'mg leagued in the fame
common caufe, and co-operating towards the
lame general purpofe which gives to each man
a legal prefence although thoufands of miles off
and makes him 33 much a principal as thofe
who are actually prefent.
. Having ascertained that the prifoner can in no
view of the Jmiu be confidercd as an accefiary in
this cafe, let us enquire whether he can be fo
conGderedin reafon.
A plain man who knew nothing of the curi
ous tranfmutations which the wit of man can
work, would be very apt to wonder hy what
kind of legerdemain Aaron Burr had contrived
to fliuffle himfelf down to the bottom of the
park ns an acceflbry, and turned up poor Blan
nerhafiettas principal in this lieafon. Itisau
honor, I dare fay, for which Mr. Blannerhaf
lett is by no means anxious ; one which he,
has never difputed with Col. Burr, and
which I am perfuaded, he would be as little
inclined todifpute on this occafion a? or. any o
ther. Since, however, the modefty of Colonel
Burr declines the fir ft rank and feems difpofed
to force Mr. Bl.iiinerhafTett into it in fpite of
his bin flies, let us compare t!ip eafes of the two
men am! fettle this queltion of precedence be
tween them. It may fave a good deal of trou
blef.rne ceremony hereafter.
In making this comparifon, fir, I fit all fpi*ak
of the two men and of the part they bore as
I believe it to exift and to be fuhtlnntially capa
ble of proof: although the court has already
’ told us that as this is a motion to exclude all
evidence, generally, we have a righ», in refilling
if, *ofuppofe the evidence which is behmd, ftrong
enough to prove my thing and every thing com
oitible will the fift of Bin r’s abfence lio-n l lie
ifland. If it will he more agreeable to the feel
iogs of the prifoner to confider the p.ral'el
w neb I am about lo run, or rather the contrail
which I anr. about to exhibit, as a fiction, hen
at libert y to do fo ; 1 believe it to be a fa<fl.
Who then is A iron Burr and what the part
which he has borne in this tranfaiflion ? He is
its author; its projector; its active executor.
Bold, ardent, refllefsand afpiriug bis bnin con
ceived it ; h'8 hand brought it info a<5tion. Be
ginning I,is operations in New-Ymk be afToci
ates with him men whofe vcVth is to fupply
the necciriry funds. PofTtfTcd of the main
fpring, liis perlonal labour coni rives all the ma
cliinery. Pervading the continent from New
York to New Orleans l.e draws into his plan
by every allurement whir.li he can contrive men
of all rankj and all deferiptions. To yonthful
ardour he prefents dang- r anti glory ; 10 ambi»
mm, ran* aou imej ana noflfttfvs; to avarice If id
mines of Mexico. To each perfon whom he
f it™ k? hc Pr<|c.nl« ,,b.iea adapted to hi.
a te * "* recruiting officers me appointed.
n?t,n arc engag-,1 throuhout the continent;
civil life is indeed qtsiet Upr.n its fiiifaret but*
in its boiom this man his contrived to depofit'
the materials with which fl-e flighted touch of
his match produces an explodon to /hike the
continent. All this hi. refttefs ambition has
contrived ; and in the autumn of tens he curs
forth for the lad time to app'v this match. Oa
this excurfion lie meet•< with Blanocrhafi'ett,
Who is BlannerhaffUt ? A native of * , .
a man of letters, who fi d from th * irc,i,nd*
his own country to find quiet in '*
tory /hews that war is no* fh * , \ H,J ,,,f*
of his mind * if i, h . ' * l“{,tUraI *iemrnt
« , ir ii n-.,j been, he would ni vrr
h«,e*cbw ra.,,,1 for Wim. s„
an army from fmnillnn, the f.„i.,y
and pr0ptr to Mr. Ii annchalT,,, ci.a.aiicr
1' hl> »'"»al in America, hr r, lirrl