Applications from different persons suffering prosecution under the act usually called the Sedition act, claimed my early attention to that instrument. our country has thought proper to distribute the powers of it's government among three equal & independent authorities, constituting each a check on one or both of the others, in all attempts to impair it's constitution. to make each an effectual check, it must have a right in cases which arise within the line of it's proper functions, where, equally with the others, it acts in the last resort & without appeal, to decide on the validity of an act according to it's own judgment, & uncontrouled by the opinions of any other department. we have accordingly, in more than one instance, seen the opinions of different departments in opposition to each other, & no ill ensue. the constitution moreover, as a further security for itself, against violation even by a concurrence of all the departments, has provided for it's own reintegration by a change of the persons exercising the functions of those department. Succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who past it. for if it be against that instrument it is a perpetual nullity. uniform decisions indeed, sanctioned by successive functionaries, by the public voice, and by repeated elections would so strengthen a construction as to render highly responsible a departure from it. On my accession to the administration, reclamations against the Sedition act were laid before me by individual citizens, claiming the protection of the constitution against the Sedition act. called on by the position in which the nation had placed me, to exercise in their behalf my free & independent judgment, I took the act into consideration, compared it with the constitution, viewed it under every aspect of which I thought it susceptible, and gave to it all the attention which the magnitude of the case demanded. on mature deliberation, in the presence of the nation, and under the tie of the solemn oath which bindsme to them & to my duty, I do declare that I hold that act to be in palpable & unqualified contradiction to the constitution. considering it then as a nullity, I have relieved from oppression under it those of my fellow-citizens who were within the reach of the functions confided to me. in recalling our footsteps within the limits of the Constitution, I have been actuated by a zealous devotion to that instrument. it is the ligament which binds us into one nation. It is, to the national government, the law of it's existence, with which it began, and with which it is to end. infractions of it may sometimes be committed from inadvertence, sometimes from the panic, or passions of a moment. to correct these with good faith, as soon as discovered, will be an assurance to the states that, far from meaning to impair that sacred charter of it's authorities, the General government views it as the principle of it's own life.[1511]
FOOTNOTES:[1510]See 51-53 of this volume.[1511]Jefferson MSS. Lib. Cong.
[1510]See 51-53 of this volume.
[1510]See 51-53 of this volume.
[1511]Jefferson MSS. Lib. Cong.
[1511]Jefferson MSS. Lib. Cong.
Virginia—Caroline—Decr22ḍ1801
Dear Sir
An absence from home, when your letter arrived, has been the cause which delayed this answer.
I confess that I have not abstracted myself from the political world, but I must at the same time acknowledge, that this kind of world, of which I am a member, is quite distinct from that in which your country has placed you. Mine is a sort of metaphysical world, over which the plastick power of the imagination is unlimited—yours, being only physical, cannot be modulated by fancy. The ways of mine are smooth & soft; of yours, rugged & thorny. And a most prosperous traveller into the political world which I inhabit, generally becomes unfortunate if he wanders into the region of which you are now a resident. Yet, as a solicitation for the continuance of your correspondence, I will venture upon a short excursion out of my own atmosphere, in relation to the subject you state.
By way of bringing the point into plain view, I will suppose some cases. Suppose a congress and president should conspire to erect five times as many courts & judges, as were made by the last law, meerely for the sake of giving salaries to themselves or their friends, and should annex to each office, a salary of 100,000 dollars. Or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes. Or, lastly, suppose a long list of courts and judges to be established, without any ill intention, but meerly from want of intellect in the legislature, which from experience are found to be useless, expensive and unpopular. Are all these evils originating either in fraud or error, remediless under the principles of your constitution?
The first question is, whether theofficethus established, is to continue.
The second, whether the officer is to continue, after the office is abolished, as being unnecessary.
Congress are empowered "fromtime to timeto ordain & establish inferior courts."
The law for establishing the present inferior courts, is a legislative construction, affirming that under this clause, congress mayabolishas well as create thesejudicial offices; because it does expresslyabolishthe then existing inferior courts, for the purpose of making way for the present.
It is probable that this construction is correct, but it is equally pertinent to our object, whether it is or not. If it is, then the present inferior courts may be abolished, as constitutionally as the last; if it is not, then the law for abolishing the former courts, and establishing the present, was unconstitutional, and being so, is undoubtedly repealable.
Thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist.
The second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious.
The constitution declares "that the judge shall hold hisofficeduring good behavior." Could it mean, that he should hold thisofficeafter it wasabolished? Could it mean that his tenure should be limited by behaving well in an office, which did not exist?
It must either have intended these absurdities, or admit of a construction which will avoid them. This construction obviously is, that the officer should hold that which he might hold, namely, an existing office, so long as he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. If therefore congress can abolish the courts, as they did by the last law, the officer dies with his office, unless you allow the constitution to intend impossibilities as well as absurdities. A construction bottomed upon either, overthrows the benefits of language and intellect.
The article of the constitution under consideration closes with an idea, which strongly supports my construction.
The salary is to be paid "during their continuance in office."This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary, when the officer is not in office; and it is undeniably certain, that he cannot be in office, when there is no office. There must have been some other mode by which the officer should cease to be in office, than that ofbad behaviour, because, if this had not been the case, the constitution would have directed "that the judges should hold their officesand salariesduring good behaviour," instead of directing "that they should" hold the salaries duringtheir continuancein office. This could only be an abolition of the office itself, by which the salary would cease with the office, tho' the judge might have conducted himself unexceptionably.
This construction certainly coincides with the public opinion, and the principles of the constitution. By neither is the idea for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals.
Nor is it incompatible with the "good behaviour" tenure, when its origin is considered. It was invented in England, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.
The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of Judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a constitution, because it depends on variable circumstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" tenure.
If this principle should disable congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate.
Whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the constitution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed.
With respect to going into the judiciary system farther at present, the length of this trespass forbids it, and perhaps all ideas tending towards the revision of our constitution would be superfluous, as I fear it is an object not now to be attained. All my hopes upon this question rest I confess with Mr: Jefferson, and yet I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the constitution. He will not leave historians to say "this was a good president, but like a good Roman Emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repetitions of those oppressions after his death, which he had himself felt and healed during his life."
And yet my hopes are abated by some essays signed "Solon" published at Washington, and recommending amendments to the constitution. They are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. Who is the author of these pieces?
Nothing can exceed our exultation on account of the president's message, and the countenance of congress—nothing can exceed the depression of the monarchists. They deprecate political happiness—we hope for the president's aid to place it on a rock before he dies.
It would have given me great pleasure to have seen you here, and I hope it may be still convenient for you to call. I close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. I am, with great regard, Dr Sir
Yr: mo: obt:SevṭJohn Taylor[1513]
FOOTNOTES:[1512]See footnote to 58 of this volume.[1513]Breckenridge MSS. Lib. Cong.
[1512]See footnote to 58 of this volume.
[1512]See footnote to 58 of this volume.
[1513]Breckenridge MSS. Lib. Cong.
[1513]Breckenridge MSS. Lib. Cong.
Holmesvs.Walton (November, 1779, New Jersey), before Chief Justice David Brearly. (See Austin Scott in AmericanHistorical Review,iv, 456et seq.) If Marshall ever heard of this case, it was only because Paterson, who was Associate Justice with Marshall when the Supreme Court decided Marburyvs.Madison, was attorney-general in New Jersey at the time Holmesvs.Walton was decided. Both Brearly and William Paterson were members of the Constitutional Convention of 1787. (See Corwin, footnote to 41-42.)
Commonwealthvs.Caton (November, 1782, 4 Call, 5-21), a noted Virginia case. (See Tyler, I, 174-75.) The language of the court in this case is merelyobiter dicta; but George Wythe and John Blair were on the Bench, and both of them were afterwards members of the Constitutional Convention. Blair was appointed by President Washington as one of the Associate Justices of the Supreme Court.
As to the much-talked-of Rhode Island case of Trevettvs.Weeden (September, 1786; see Arnold:History of Rhode Island,ii, 525-27, Varnum's pamphlet,Case of Trevett vs. Weeden, and Chandler'sCriminal Trials,ii, 269-350), it is improbable that Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident—for it can hardly be called a case—could scarcely have had any circulation outside of New England. It was referred to in the Constitutional Convention at Philadelphia in 1787, but the journals of that convention were kept secret until many years after Marburyvs.Madison was decided.
It is unlikely that the recently discussed case of Bayardvs.Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever reached Marshall's attention except by hearsay.
The second Hayburn case (August, 1792, 2 Dallas, 409; and seeAnnals, 2d Cong. 2d Sess. 1319-22). For a full discussion of this important case see particularly Professor Max Farrand's analysis in theAmerican Historical Review(xiii, 283-84), which is the only satisfactory treatment of it. See also Thayer:Cases on Constitutional Law(1, footnote to 105).
Kampervs.Hawkins (November, 1793, 1 Va. Ca. 20et seq.), a case which came directly under Marshall's observation.
Van Horne's Lesseevs.Dorrance (April, 1795, 2 Dallas, 304), in which Justice Paterson of the Supreme Court said all that Marshall repeated in Marburyvs.Madison upon the power of the Judiciary to declare legislation void.
Caldervs.Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Coopervs.Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.
Whittingtonvs.Polk (Maryland, April, 1802, 1 Harris and Johnson, 236-52). Marshall surely was informed of this case by Chase who, as Chief Justice of Maryland, decided it. The report, however, was not published until 1821. (See McLaughlin:The Courts, the Constitution, and Parties, 20-23.) In his opinion in this case Justice Chase employed precisely the same reasoning used by Marshall in Marburyvs.Madison to show the power of courts to declare invalid legislative acts that violate the Constitution.
The old Court of Appeals, under the Articles of Confederation, denounced as unconstitutional the law that assigned circuit duties to the judges of that appellate tribunal; and this was cited by Thomas Morris of New York and by John Stanley of South Carolina in the judiciary debate of 1802.[1515]
As to the statement of Chief Justice, later Governor Thomas Hutchinson of Massachusetts, in 1765, and the ancient British precedents, cited by Robert Ludlow Fowler in theAmerican Law Review(xxix, 711-25), it is positive that Marshall never had an intimation that any such pronouncements ever had been made.
Neither, in all likelihood, had Marshall known of the highly advertised case of Rutgersvs.Waddington, decided by a New York justice of the peace in 1784 (seeAmerican Law Review,xix, 180), and the case of Bowmanvs.Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controversy, Statevs.——, decided in April, 1794 (1 Haywood, 28-40), and of Lindsayet al vs.Commissioners (South Carolina, October, 1796, 2 Bay, 38-62), the report of which was not printed until 1811.
For a scholarly treatment of the matter from an historical and legally professional point of view, seeDoctrine of Judicial Reviewby Professor Edward S. Corwin of the Department of History and Politics, Princeton University; alsoThe Courts, the Constitution, and Parties, by Professor Andrew C. McLaughlin of the Department of History, University of Chicago. The discussion by these scholars is thorough. All cases are critically examined, and they omit only the political exigency that forced Marshall's opinion in Marburyvs.Madison.
The student should also consult the paper of William M. Meigs, "The Relation of the Judiciary to the Constitution," in theAmerican Law Review(xix, 175-203), and that of Frank E. Melvin, "The Judicial Bulwark of the Constitution," in theAmerican Political Science Review(viii, 167-203).
Professor Charles A. Beard'sThe Supreme Court and the Constitutioncontains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject.
Judicial Power and Unconstitutional Legislation, by Brinton Coxe, although published in 1893, is still highly valuable. AndPower of Federal Judiciary over Legislation, by J. Hampden Dougherty, will be profitable to the student.
Marburyvs.Madison is attacked ably, if petulantly, by Dean Trickett, "Judicial Nullification of Acts of Congress," in theNorth American Review(clxxxv, 848et seq.), and also by James B. McDonough, "The Alleged Usurpation of Power by the Federal Courts," in theAmerican Law Review(xlvi, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of Chief Justice Walter Clark of the Supreme Court of North Carolina, "Government by Judges." (See Senate Document No. 610, 63d Congress, 2d Session.)
With regard to the possible effect on American law of foreign assertions of the supremacy of the Judiciary, particularly that of France, the Address of James M. Beck of the New York Bar, before the Pennsylvania Bar Association on June 29, 1915, and reported in the Twenty-first Annual Report of that Association (222-51), is a careful and exhaustive study.
FOOTNOTES:[1514]See 118-19 of this volume.[1515]See footnote 5 to p. 74 of this volume.
[1514]See 118-19 of this volume.
[1514]See 118-19 of this volume.
[1515]See footnote 5 to p. 74 of this volume.
[1515]See footnote 5 to p. 74 of this volume.
Your letter postmarked thirteenth May, is received. At length I have obtained funds, and have actually commenced. The Eastern detachments, from different points and under different pretences, will rendezvous on the Ohio first of November. Everything internal and external favors our views. Naval protection of England is secured. Truxtun is going to Jamaica to arrange with the admiral on that station. It will meet us at the Mississippi. England, a navy of the United States, are ready to join, and final orders are given to my friends and followers. It will be a host of choice spirits. Wilkinson shall be second to Burr only; Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward first August, never to return. With him goes his daughter; her husband will follow in October, with a corps of worthies. Send forthwith an intelligent and confidential friend with whom Burr may confer; he shall return immediately with further interesting details; this is essential to concert and harmony of movement. Send a list of all persons known to Wilkinson west of the mountains who could be useful, with a note delineating their characters. By your messenger send me four or five commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders given to the contractor to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. Our object, my dear friend, is brought to a point so long desired. Burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country. Burr's plan of operation is to move down rapidly from the Falls, on the fifteenth of November, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, there to meet you; there to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge.On receipt of this send Burr an answer. Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us; their agents, now with Burr, say that if we will protect their religion, and will not subject them to a foreign Power, that in three weeks all will be settled. The gods invite us to glory and fortune; it remains to be seen whether we deserve the boon. The bearer of this goes express to you. He is a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating facts with fidelity, and incapable of relating them otherwise; he is thoroughly informed of the plans and intentions of Burr, and will disclose to you as far as you require, and no further. He has imbibed a reverence for your character, and may be embarrassed in your presence; put him at ease, and he will satisfy you.
FOOTNOTES:[1516]See 307-09, 352-55, of this volume.
[1516]See 307-09, 352-55, of this volume.
[1516]See 307-09, 352-55, of this volume.
Who is Blennerhassett? A native of Ireland, a man of letters, fled from the storms of his own country to find quiet in ours. His history shows that war is not the natural element of his mind. If it had been, he never would have exchanged Ireland for America. So far is an army from furnishing the society natural and proper to Mr. Blennerhassett's character, that on his arrival in America, he retired even from the population of the Atlantic States, and sought quiet and solitude in the bosom of our Western forests.
But he carried with him taste and science and wealth; and lo, the desert smiled! Possessing himself of a beautiful island in the Ohio, he rears upon it a palace and decorates it with every romantic embellishment of fancy. A shrubbery, that Shenstone might have envied, blooms around him. Music, that might have charmed Calypso and her nymphs, is his. An extensive library spreads its treasures before him. A philosophical apparatus offers to him all the secrets and mysteries of nature. Peace, tranquillity, and innocence shed their mingled delights around him. And to crown the enchantment of the scene, a wife, who is said to be lovely even beyond her sex and graced with every accomplishment that can render it irresistible, had blessed him with her love and made him the father of several children. The evidence would convince you, that this is but a faint picture of the real life.
In the midst of all this peace, this innocent simplicity and this tranquillity, this feast of the mind, this pure banquet of the heart, the destroyer comes; he comes to change this paradise into a hell. Yet the flowers do not wither at his approach. No monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him. A stranger presents himself. Introduced to their civilities by the high rank which he had lately held in his country, he soon finds his way to their hearts, by the dignity and elegance of his demeanor, the light and beauty of his conversation and the seductive and fascinating power of his address.
The conquest was not difficult. Innocence is ever simple and credulous. Conscious of no design itself, it suspects none in others. It wears no guard before its breast. Every door and portal and avenue of the heart is thrown open, and all who choose it enter. Such was the state of Eden when the serpent entered its bowers.
The prisoner, in a more engaging form, winding himself into the open and unpractised heart of the unfortunate Blennerhassett, found but little difficulty in changing the native character of that heart and the objects of its affection. By degrees he infuses into it the poison of his own ambition. He breathes into it the fire of his own courage; a daring and desperate thirst for glory; an ardour panting for great enterprises, for all the storm and bustle and hurricane of life.
In a short time the whole man is changed, and every object of his former delight is relinquished. No more he enjoys the tranquil scene; it has become flat and insipid to his taste. His books are abandoned. His retort and crucible are thrown aside. His shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His ear no longer drinks the rich melody of music; it longs for the trumpet's clangor and the cannon's roar. Even the prattle of his babes, once so sweet, no longer affects him; and the angel smile of his wife, which hitherto touched his bosom with ecstasy so unspeakable, is now unseen and unfelt.
Greater objects have taken possession of his soul. His imagination has been dazzled by visions of diadems, of stars and garters and titles of nobility. He has been taught to burn with restless emulation at the names of great heroes and conquerors. His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately permitted not the winds of summer to visit too roughly, we find her shivering at midnight, on the winter banks of the Ohio and mingling her tears with the torrents, that froze as they fell.
Yet this unfortunate man, thus deluded from his interest and his happiness, thus seduced from the paths of innocence and peace, thus confounded in the toils that were deliberately spread for him and overwhelmed by the mastering spirit and genius of another—this man, thus ruined and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender,while he, by whom he was thus plunged in misery, is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd! So shocking to the soul! So revolting to reason! Let Aaron Burr then not shrink from the high destination which he has courted, and having already ruined Blennerhassett in fortune, character and happiness forever, let him not attempt to finish the tragedy by thrusting that ill-fated man between himself and punishment.[1518]
FOOTNOTES:[1517]See 495-97 of this volume.[1518]Burr Trials,ii, 96-98.
[1517]See 495-97 of this volume.
[1517]See 495-97 of this volume.
[1518]Burr Trials,ii, 96-98.
[1518]Burr Trials,ii, 96-98.
The place in which a crime was committed is essential to an indictment, were it only to shew the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence.... 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 committed.
A description of the particular manner in which the war was levied seems also essential to enable the accused to make his defence. The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation and the circumstances which will be adduced against him.
Treason can only be established by the proof of overt acts; and ... those overt acts only which are changed 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....
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.... 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, ... 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 legallypresent, but because in treason all are principals. Yet the indictment, speaking upon general principles, would charge him according to the truth of the case....
If the conspirator had done nothing which amounted to levying of war, and if by our constitution the doctrine that an accessory becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to say that this defect, if it be termed one, may be cured by an indictment stating the case untruly.
In point of law then, the man, who incites, aids, or procures a treasonable act, is not merely in consequence of that incitement, aid or procurement, legally present when that act is committed.
If it do not result, from the nature of the crime, that all who are concerned in it are legally present at every overt act, then each case depends upon its own circumstances; and to judge how far the circumstances of any case can make him legally present, who is in fact absent, the doctrine of constructive presence must be examined.
The whole treason laid in this indictment is the levying of war in Blennerhassett's island; and the whole question to which the inquiry of the court is now directed is whether the prisoner was legally present at that fact.
I say this is the whole question; because the prisoner can only be convicted on the overt act laid in the indictment. With respect to this prosecution, it is as if no other overt act existed.
If other overt acts can be inquired into, it is for the sole purpose of proving the particular fact charged. It is 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 nowexamining, is the constructive presence of the prisoner at the fact charged....
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 coöperate 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 coöperation in the general plan was to be afforded elsewhere, at a great distance, in a different state—if the overt acts of treason to be performed by him were to be distinct overt acts—then he was not of the particular party assembled at Blennerhassett's island, and was not constructively present, aiding and assisting in the particular act which was there committed.
The testimony on this point, so far as it has been delivered, is not equivocal. There is not only no evidence that the accused was of the particular party which assembled on Blennerhassett's island; but the whole evidence shows he was not of that party.
In felony then, admitting the crime to have been completed on the island, and to have been advised, procured, or commanded by the accused, he would have been incontestably an accessory and not a principal.
But in treason, it is said, the law is otherwise, because the theatre of action is more extensive.
The reasoning applies in England as strongly as in the United States. While in '15 and '45 the family of Stuart sought to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legally present at one place, when actually at another; or as aiding in one transaction, while actually employed in another.
With the perfect knowledge that the whole nation may bethe theatre of action, the English books unite in declaring that he, who counsels, procures or aids treason, is guilty accessorially and solely in virtue of the common law principle, that what will make a man an accessory in felony makes him a principal in treason. So far from considering a man as constructively present at every overt act of the general treason in which he may have been concerned, the whole doctrine of the books limits the proof against him to those particular overt acts of levying war with 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.
In conformity with principle and with authority then, the prisoner at the bar was neither legally nor actually present at Blennerhassett's island; and the court is strongly inclined to the opinion that without proving an actual or legal presence by two witnesses, the overt act laid in this indictment cannot be proved.
But this opinion is controverted on two grounds.
The first is, that the indictment does not charge the prisoner to have been present.
The second, that although he was absent, yet if he caused the assemblage, he may be indicted as being present, and convicted on evidence that he caused the treasonable act.
The first position is to be decided by the indictment itself.... The court understands it to be directly charged that the prisoner did assemble with the multitude and did march with them.... 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....
But suppose the law to be as is contended by the counsel forthe 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 general, to charge any individual with the guilt of an assemblage, the fact of his presence must be proved: it constitutes an essential part of the overt act.
If then the procurement be substituted in the place of presence, does it not also constitute an essential part of the overt act? must it not also be proved? must it not be proved in the same manner that presence must be proved?
If in one case the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.
Collateral points may, say the books, be proved according to the course of the common law; but is this a collateral point? Is the fact, without which the accused does not participate in the guilt of the assemblage if it were 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 connected or inferred, can satisfy the constitution and the law.
The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences or of reasoning; the fact must be proved by two witnesses.
Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accusedprocured the assembly, by a train of conjectures of 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....
The 8th amendment to the constitution has been pressed with great force.... The accused cannot be said to be "informed of the nature and cause of the accusation" unless the indictment give him that notice which may reasonably suggest to him the point on which the accusations turns [sic], so that he may know the course to be pursued in his defence.
It is also well worthy of consideration that this doctrine, so far as it respects treason, is entirely supported by the operation of the common law, which is said to convert the accessory before the fact into the principal, and to make the act of the principal his act. The accessory before the fact is not said to have levied war. He is not said to be guilty under the statute, but the common law attaches to him the guilt of that fact which he has advised or procured; and, as contended, makes it his act.
This is the operation of the common law not the operation of the statute. It is an operation then which can only be performed where the common law exists to perform: it is the creature of the common law, and the creature presupposes its creator. To decide then that this doctrine is applicable to the United States would seem to imply the decision that the United States, as a nation, have a common law which creates and defines the punishment of crimes accessorial in their nature. It would imply the further decision that these accessorial crimes are not in the case of treason excluded by the definition of treason given in the constitution....
I have said that this doctrine cannot apply to the United States without implying those decisions respecting the commonlaw which I have stated; because, should it be true as is contended that the constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage.
If the adviser or procurer be within the definition of levying war, and independent of the agency of the common law do actually levy war, then the advisement of procurement is an overt act of levying war. If it be the overt action which he is to be convicted, then it must be charged in the indictment; for he can only be convicted on proof of the overt acts which are charged.
To render this distinction more intelligible let it be recollected, that although it should be conceded that since the statutes of William and Mary he who advises or procures a treason may, in England, be charged as having committed that treason by virtue of the common law operation, which is said so far as respects the indictment to unite the accessorial to the principal offence and permit them to be charged as one, yet it can never be conceded that he who commits one overt act under the statute of Edward can be charged and convicted on proof of another overt act.
If then procurement be an overt act of treason under the constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling, whatever may be the doctrine of the common law in the case of an accessorial offender.[1520]