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WPPl!HPi"iJIU
BURR's TRIAL.
OPINION OF THE COVRt
On the, motion to arrest the evidence, ddi-
t)tred Aumist 3l. —Continued
In'both the cas.es here stated, the persons
actually set out together and were near
enough to assist in the commission of the
lact. 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 asiit in case of re-
sistance, it is the same as if the robbery had
been that originally designed. The case in
the original report shows that the felony
c^cimittvd was in fact in pursuance of that
originally designed. Foster 350, plainly
supposes tit*; same particular design, not a
general design composed of many particular
distinct facts. He supposes them to be co-
operating *tith respect to that particular de-
sign. This may be illustrated by a Case
which is perhaps common. Suppose a band
of robbers confederated for the general pur-
pose of robbing. They set out together or
in parties, to rob a particular individual, and
each performs the part assigned 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 commit-
ted. If muid-r or robbery actually take
place, all are pi inci those particular overt acts of
lelying war v>ith which he is charged.
What would be the effect of a different
doctrine ? Clearly that which has been
ties. And the only
of that point if
the expression be allowed, which the court
is now examining, is the constructive pre-
sence of the prisoner at the fact charged.
To return then to the application of the
oases.
Had the prisoner set out with the party
from Beaver for Blannerhassett's island-, or
peihaps had he set out for that place though
not from Beaver, and had arrived in the
island, he would have been present at the
fact : had he not arrived in the island, but
had taken a position near enough to co-
operate with th se 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 fart, which would
be decided by the jury, with the aid of the
court, so far as resptc:ed the law. In this
ease, the accused would have been of the
particular party assembled on ihe island, and
¦w uld have been associated v ith them in
the particular act of levying war, said to
Save been committed on the island.
But if he was not with the party at any
time before they reached the island; it he
did not join t!~em there, or infnd t<> join
them there ; it his personal co-operation in
the general plan was to be afforded else-
where at a great distance, in a different
state ; if the overt acts of treason to be per-
t rmed by him were in be distinct overt
acts J then* he was n t of the particular par-
ty assembled^! Blannerhassett's island, and
was not constructively present, aiding and
assisting in the particular act which was
there committed.
¦'Tb* ww4«4tty on this point, to far as it
Jta* been delivered, Is Hot equivocal. There
stated. If a person levying war in Kentuc-
ky, may be said to be constructively present
and assembled *ith a party carrying on war
in Virginia at a great distance from him ;
then he is present at every overt act perform-
ed any where ; 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
supoorted by the doctrines of the English
law.
The opinion of judge Patterson in Mitch-
ell's case has been cited on this point. 2
Dal. 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 suppositi n 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 Braddoek's field, in the county of Allegh-
any, for the purpose of committing acts of
violence at Pittsburgh. That there was al-
so an assemblage at different times at Couch-
es fort, at 'hich the prisoner aLo attended.
The general and avowed object of that meet-
ing 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 assem-
bled marched to that house and attacked it.
It was proved by a competent number of
witnesses, that he was at Couches fort
armed, that he offered to reconoitre 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 witnesses.
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 resolu-
tion to attack the house having been there
taken, the body having for the avowed pur-
poses moved In execution of that resolution
towards the house to be attacked, he inclined
to think that the act of marching was ir»
itself levying war. If it was, then, the overt
act laid in the indictment was consummated
by the assembly at Couches and the march-
ing from thence, and Mitchell was proved
to be guilty by more than two positive wit-
nesses. But without deciding this to be the
law, he proceeded to consider the meeting
at Couches the-immediate marching to Ne-
v'lle'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 ta-
ken an active part in it, and the judge de-
clared it to be unnecessary that all should
have seen him at the same time and place.
But suppose not a single witness had prov-
ed 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. Caw it be believed by any
person who observes the caution with which
Judge Patterson required the constitutional
proof of two witnesses to the same overt
act, that he would have said Mitchell was
constructively present, and might on that
straining of a legal fiction, be found guilty
of treason ? Had he delivered such an opini-
on, 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 lite to strike his name from
that bloody list in which the name of Jeffries
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 as-
sembled in Blannerhassett's Island had pre-
viously 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 Blannerhassett's In-
land 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 direr ly after leaving the island ;
that this indictment had charged the levy-
ing of war in Wood county generally : the
cases would then have been precisely pa-
rallel, 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 Blan-
nerhassett's island ; and the court is strongly
inclined to the opinion that without proving
an actual or legal presence by two witnesses,
the overt act laid in this indictment cannot
be proved.
But this- opinion is controverted on two
grounds.
The first is, that the indictment does not
charge the prisoner to have been present.
The second, that although he was absent^
yet, if he caused the assemblage, he may be
indicted as being present, and convicted on
evidence that he caused the treasonable act.
The first position is to be decided by the
indictment itself. The court understands
the allegation differently from the attorney
for the United States. The court understands
it to be directly charged, that the prisoner
did assemble with the multitude and did
march with them. Nothing will more clear-
ly test this construction than putting the
case into a shape which it may possibly
take. Suppose the law to be, that the in-
dictment would be defective unless it alledg-
ed the presence of the person indicted at
the act of treason. If upon a special ver-
dict facts should be found which amounted
to a levying of war bv the accused, and his
counsel should insist that he could not be
condemned boc«i»;e the indictment was de
fecfive in not charging that he was himself
one of the assemblage which constituted
the treason, or because it alledged the pro-
curement 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 verdcit, the indict
ment ought to be construed to alledcre that
the prisoner was one of the assemblage 8'
Blannerhassett's i-land, it ought to be so
construed now. But this is unimportant,for
if the indictment ailed ges that the prisoner
procured the assemblage, that procurement
becomes part of the overt act, and must be
proved, as will be shown hereafter.
The 2d position is founded on 1 Hale.-214,
238 and 1 East 127.
While I declare that this doctrine contra-
dicts every idea I had ever entertained on
the subject of indictments, since it admits
that one case may be stated and a veiy dif-
ferent case may be proved I will acknow-
ledge that it is countenanced by the autho-
rities adduced in its snpjKirt. To counsel
or advise a treasonable assemblage, and to
be one of that assemula,_e, are certainly
distinct acts, and therefore ou^ht not t-> be
charged as the same act. The great ob-
jection 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 ¦ hich the accus-
ed is to defend himself. These dicta of
Lord Hale theiefore, taken in the extent in
which they are understood by the counsel
for the United Stales seem to be repugnant
to the declarations we find every where, that
an overt act must be laid, and must be
proved. No case is cited by Hale in sup-
port of them, and I am strongly inclined
to the opinion that, had the public received
his corrected, instead of his original manus-
cript, they would, if not expunged, have
been restrained in their application to cases
of a particular description. Laid do * n gene-
rally, and applied universally to all cases of
treason, they are repugnant to the principles
for ^hich Hale contends, for which all the
elementary writers contend, and from which
courts have in no case, either directly re-
ported or referred to in the books, ever de-
parted. These principles are, that the in-
dictment must give notice of the offence,
that the accused is only bound to answer
the particclar charge which the indictment
contains, and that the overt act laid is that
particular charge. Under such circumstan-
ces, it is only doing justice to Hale to ex-
amine his dicta, and if they will admit of
being understood in a limited sense, not re-
pugnant to his own doctrines, nor to the
geneial 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 in-
dicted for counterfeiting generally within
this statute, for in such case, in treason, all
are principals."
This is laid down as applicable singly to
the treason of counterfeiting the coin, and
is not applied by Hale to other treasons.—
Had he designed to apply the principle uni-
versally he would have stated it as a general
proposition, he would have laid it down in , The crimes then are not the same, and
treating on ther branches of the statute, as-j may not indifferently be tried undei
well as in the chapter respecting the coin,
he would have laid it down when treating
on indictments generally. But ha has done
neither. ' Every sentiment bearing in any
manner on this point which is to be found
in L rd Hale, while on the doctrine of le-
vying war, or on the general doctrine of in-
dictments, militates against the opinion that
be considered the preposition as more ex-
tensive than he has declared it to be. No
court could be justified in extending the dic-
tum of a judge beyond its terms, to cases in
which he has expressly treated, to which he
has not himself applied it, and on *hich he
as well as others has delivered Opinions which
that dictum would overrule- Thin would
be the less justifiable if there should be a
clear legal distinction indicated by the very
terms in which the judge has expressed him-
self between the particular caae to which
alone he has applied the dictum, and other
cases to which the court is required to ex-
tend it.
There isthisclearlegaldistinction. " They
may, says judge Hale, be indicted for coun-
terfeiting generally. But if many conspire
to levy war, and some actually levy it, they
may not be indicted for levying war general
ly. Th« books concur in declaring that
they cannot be so indicted. A special overt
act of levying war must be laid. This dis-
tinction between counterfeiting the coins,
and that class of treasons among which le-
vying war is placed, is taken in the statute
of Edward 3d. That statute requires an
overt act of levying war to be laid in the in-
dictment, and does not require an overt act
of counterfeiting the coin, to be laid. If in
a particular case where e 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 per-
mitting the limits which he has himself
given to his own dictum, to remain where
he has placed them.
In page 238, Hale is speaking generally
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
o e that is procurer, counsellor or consent
ter."
The words " may be otherwise" do not
clearly convey the idea that it is universally
otherwise. I 1 all cases of a receiver the
indictment must be special on the receipt,
and not general. The words it " nuy be
Otherwise in case of a procurer, he" signify
that it may be otherwise in all treasons, or
that it may be otherwise in some treasons.
li it may be otherwise in some treasons
without contradicting the doctrines of Malt
himself, as well as of other writers, but
cannot be otherwise ill all treasons without
such contradiction, the fair construction is,
tlAit Hale used these words in their restrict-
ed 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 he, but an overt act
of the treason must be charged The two
passages of Hale thus construed, may per-
haps be law, and may leave him consistent
with himself. It appears to the court to be
the fair way of construing them.
These observations relative to the passages
quoted from Hale, apply to that quoted from
East, who obviously copies from Hale, and
relies upon his authority.
Upon this point Keeling 26, and 1st
Hale 626, have also been relied upon. It is
stated in both, that if a man be indicted as
a principal and acquitted, lie cannot after-
wards 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 hi felony it does not require
that an overt act should be laid. The in-
dictment therefore may be general. But an
overt act of levying war must be laid.—
These cases then prove in their utmost ex-
tent no more than the cases previously cit-
ed from Hale and East. This distinction
between indictments which may state the
fact generally, and those which must lay
specially, bear some analogy to a general: j
and a special action on the case. In a gene,
ral action, the declaration may lay the as-
sumpsit according to the legal effect of the
transaction, but in a special action on the
case, the declaraVon must state the material
circumstances truly, and they must be prov-
ed as stated. This distinction also derives j
some aid, from a passage in Hale, 6*5, im-
mediately preceding that which has h>en
cited at the bar. He says, <* If A. be in- j
dieted as principal and B. asaceessary before \
ox after, and both be acquitted, yet B. may |
be indicted as principal, and the former ac
quittai as accessary is no bar."
same indictment. But why is it that an
acquittal as principal may be pleaded in bar
to au indictment as accessary, while an ac-
quittal 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 prin-
cipal, but that the principal crime may not
be given in evidence on an indictment as ac-
cessary, the question recurs, on what legal
ground does the distinction st and ? I can
imagine only this. An accessaiy being
qio'dam modo a principal, in indictments
where the law does not require the manner
to be stated, which need not be special, evi-
dence of accessorial guilt, if the punish-
ment 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, &
must show how he becaiffle an accessary,—
The charges of this special indictment
therefore must be proved as laid, and no evi-
dence which proves the ci ime in a form Sub-
stantially different can be received If this
be the legal reason for the distinction it sup-
ports the exposition of these dicta which
has been given. If it be not the legal rea-
son, I can conceive no other.
[To be continued."]
BY THIS DAY's LS.
BOSTONTSept. II.
Arrived, ship George Augustus, Jack-
son, 44 days from Liverpool, salt, iron &
crates.
Brig Commerce, Robins, of Plymouth,
62 days from Lisbon, salt and fruit. Spoke
August 19th, lat. 43, long. 47, ship Julia,
19 days from No;folk, for Cork.
Ship Nancy, Hale, of Newburyport, 82
days from Gronstadt (Russia.) hemp, iron,
duck, &c. Brig Robert, ot Boston, .was
at Copenhagen 3d July- 47 days from San-
ta Croix, bound to Boston. Spoke, June
13Jth, 3 leagues W. of the island c( Hog-
land, brig Industry, of New-York, fiom
Nar.tz, for Petersburg ; ship Mary, Hol-
land, from Amsterdam for Peteisburg—saw
shipHesper, Cushing, but not near enough
to speak him. July 16th, lat. 6o, long. 5,
ship Eliza-Ann, Cox, 28 daysfr in Peters-
burg for New-York. Aug. ,-th, lat. 44,
long. 35, ship Fair American, Marshal, 15
days from New-York. Aug. 23d, on the
Grand Bank, ship, Augustus of Boston,
15 days from Norfolk, for London. Aug.
31st, lat. 42, long. 6fi, brig Shepheidess,
Purber, 5 days from Boston, for Liverpool.
(Via quarantine) brig Rose, Rankid, cf
Kennebunk, 28 days fiom St. Vincents,
rum, &c. Schr. Vuican, Atkins, 25 days
from Havana, sugar.
Arrived, ship Lucy, of Portland, capt.
Curtis, 47 dayi from Liverpool, salt, crates,
&c. Spoke, Aug. 26, lat. 41', 49, long.
59, brig Telegraph, Edes, 50 days fiom
Amsterdam, for Boston. 31st, lat. 41,
21, long 59, brig President Jefferson, Bar-
nard, 50 days from Cadiz far New-York,
with her topmast gone.
Schr. Mary, Huxford, 8 days from Ha-
lifax, salmon and mackerel.
(Via quarantine) brig Rubicon, Thomas,
25 days trom Havana, sugars, &c.
Arrived, (via quarantine) brig Return,
Do vning. ot Kennebunk, 25 days from
Tobago, rum. Left, brig Nancy, Hall,
to sail in 5 or 6 days ; brig Bellona, Patten,
of Kennebunk, to sail in 10 days. Spoke
Aug. 19th, brig Aurora, of New-York, 3,
days from Trinidad. Aug. 20th, brig-
Merchant, Thompson, of Kennebunk, 4
days from Trinidad, for Kennebunk.
Quarantine list.
7th, ship Columbia, Games, 18 days
from Havana. Brig Hazard, Donnel, 25
days from Antigua.
8th, brig Susan, Howard, so days from
Havana.
9th, schr. Fortune, Foster;- from Bay of
Honduras.
Cleared brigs Creole, Newell, Isle of
France ; Evelina, Twycross, St. Croix ;
$chn>. Industry, Collin, St. Johns, N. F. j
Eleanor, Rider,Halifax; Commerce, Gard-
ner, Jamaica ; Maria, Windsor ; Holland,
Bay of Biscay ; Regulator Hobbs, New-
fundland; Hoton Packet, Crane, Wind-
sor.
from
NEW-YORK, September 14.
Arrived,
Ship Amiable, Rinker, 61 days
London, in ballast—4 days ago, spoke brig
Hannah, Irom St. Croix, for Boston.—
Next day, spoke a schooner from Havana
for Boston. On Saturday, off Barnegat,
sch'r Margaret, Ferguson, 7 days from Ha-
lifax for Philadelphia.
Ship Fanny, Galloway, 56 days from Li-
verpool, with dry g odo, paints, crates and
coal. Aug. 29, in lat. 41, 31, long. 63,
30 experienced a heavy gale at E. handed
all the light sails and struck all the top-gal-
lant mast ; a heavy sea struck her forward,
and carried away a part of her figure head
—the gala increasing, at 8 A. M. was ly-
ing too, with nine streaks of the ship un-
der water, and the sea making a fair breach
over her ; and in order to save the ship, car-
go and lives, concluded to cut away the niii-—
zenmast, and the maintopmast went with it;
the gale still increasing, cut a<\ ay tJia fore-
mast, winch eased her very much ; several
of! her quarter boards were knocked away
by the sea. At half past 9 A. M. the wea-
: ther moderated, and all hands were e.mploy-
I ed in clearing the i reck, and secu,ri»g the
j things on deck. The gale lasted 12 hours,
j (It is. remarkable that a similar accident Jfep-
peue4 to this fin& ship,' 011 the same day, a
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