will observe that if the previous conviction of the principal offender be not necessary, then the government may wait till the death of the principal, when the accessory may thus be deprived of the main chance of his defence and unjustly oppressed. No man will believe that our government is capable of any thing of the sort, but there may be a time hereafter, when these oppressions may be practised; they should therefore never be tolerated, but prevented from the first from being attempted. If the accessory may be convicted without the principal, then the accessory may be brought to trial after the death of the principal and convicted on evidence, which if used in the life of the principal could easily have been disproved or repelled. Will you put it in the power of your government thus to trample on the rights of your fellow citizens? The chief of the government may persecute the man who is the principal object of his hatred. If he can avail himself of a difference of principle and render him suspected and hated, he may destroy him. These observations may not apply to the present times, but what you may now do may be drawn into precedent.

In England, if the principal stand mute, the accessory cannot be convicted, because one chance in favour of his innocence and acquittal is thereby taken away. Would you wish to have our privileges less secure or our liberties more liable to invasion here than in England? Would you suffer the accessory to be tried, without a previous trial of the principal, except in cases where the acts of the legislature had provided otherwise? I have had occasion to mention lord Coke before. What would not he have done, if such a doctrine had prevailed in his time? What might not Bacon have done? Bacon, a man of still higher renown, whose name might have been immortal, had he not degraded himself by becoming the instrument of his master's tyranny and descended to other improper conduct. Bacon was once attorney general and submitted while he was to the mean and debasing drudgery of sounding and corrupting the judges, at the instance of the king, in order to insure the success of a prosecution for treason against Peacham. his letter to the king, he said, that "as to three of the judges he had small doubt of their concurrence; neither, saith he, am I wholly out of hope, that my lord Coke himself, when I have in some dark manner put him in doubt that he shall be left alone, will not continue singular." When such a man as Bacon, who might have been an ornament to his species, prostituted his character and talents to so vile a purpose, it is difficult to say of what human nature is capable. We cannot guard too much against the oppressive abuses that may result from constructive.

In

treason, or against the introduction of precedent, susceptible of such pernicious limitation. If the accessory could be prosecuted, without the previous conviction of the principal, what oppressions may not be practised? I have no reason to believe, that there is the smallest danger, here in America, that such oppression will ever be attempted; but we should vigilantly guard against and oppose the first step leading to such doctrines. It is admitted that the precedents, charging accessories after the fact, are special and set forth the manner of becoming such. But they are principals as well as accessories before the fact; the reason which requires a specification in the one case, equally demands it in the other. The preexistence of fact is as necessary in the one case as in the other; what produces any difference of rule between them? What is the reason of the law in requiring a specification of charge against the accessory after the fact? Is it because he is a principal or because a party accused should be apprised of the nature of the accusation, that there should be a conformity between the charge and proof? They admit that in case of the accessory after, the facts which render him so must be plainly stated in the indictment, in order to enable him to meet the charge with his defence, and yet the doctrine of the gentleman is, that they are not obliged to do so with respect to the accessory before the fact! The reason is the same in both; there is no distinguishing between them; but if there were any distinction, it must be, that it is more necessary to specify the charge, in case of an accessory before the fact, where the consequences are usually so much more penal, than in that of an accessory after the fact, where they are less. With respect to our having come to trial without stating the objection, we could not avoid it. The charge against us was so general in the indictment, that we were driven to this mode of defence; for how can it be said, that we have waived any legal objection relative to what is not charged, and of which we have the first notice from the arguments of gentlemen? Had they stated specially, that they intended to affect colonel Burr, by the acts of others, committed in his absence, and without their previous conviction, we should then have been distinctly apprised of what they would attempt to fix upon us and of the extent of our right to oppose them, and we might or might not, as we thought proper, have waived our objection; but as we have not been thus duly notified, we are driven to this scheme of defence, unintentionally. All the difficulty in the case is produced by the imperfect manner in which the indictment is drawn, and still more by the imperfect manner in which the prosecution is conducted. By these means, the accused may generally be misled to part from the essence of his defence.

How is Burr to defend, as to Blannerhassett? All communications between them were prevented, and consequently the opportunity of acting. Shall fiction, converting the accessory into a principal, rob him of the means of just defence? The maxim is against fiction in criminal cases, as has been already sufficiently explained. Consider the inconveniences and oppression of such a mode of prosecution. A trial comes on against a person charged generally as present and acting a traitorous part at the scene of action described in the indictment. The trial is commenced: it is then discovered that the accused had only performed accessorial acts and in a different district from that charged. What is to be done? Can they stop? Can they adjourn for months and coop the jury in the interim? All these inconveniences may be avoided by prosecuting in the correct and usual way; specifying in the indictment, in explicit

the specific offence which it is intended to establish on the trial. Tell us how we are to be prosecuted; under what law. Whether we must come to defend ourselves as principals or accessories. Whether we are to be tried according to the supposed maxims of common sense or the principles of national policy, deemed orthodox in political circles or on the theatre of legislation. Let us know the ground on which we are to stand, whether force must be used; or whether the most peaceable demeanor cannot secure from the effect of guilt. The consequences of the doctrine of gentlemen, if adopted, must be uncertainty on all these points and the impossibility of making an effectual defence, against an accusation which may be brought against any man by surprise. I trust, therefore, that our motion will prevail.

Mr. HAY expressed a hope, that the discussion of the questions submitted to the court would be postponed till next Monday, in order to give time to the counsel for the prosecu-. tion, to reflect on the subject and enable them to answer the elaborate arguments of the counsel for the accused; which having occupied two whole days in the delivery must have been prepared with infinite labour and industry. He said however limited his experience in criminal prosecutions, he had no doubt that he would satisfy the court that the motion could not be sustained, if he had but time to refer to authority and consider the subject; that on so important a question, sufficient time ought to be granted; that it was an attempt to wrest the question from the jury, the proper tribunal, and to divide them from the court.

Mr. WICKHAM, Mr. MARTIN and Mr. BoTTS objected to so long a postponement and said that the counsel for the United States ought to have come prepared to prosecute and to underVOL. II.

D

stand and repel every argument and every defence of which the cause was susceptible; that the season was sickly, accidents might happen and it was cruel to confine the jury longer than was absolutely necessary; that they could not understand how to reconcile the gentleman's declarations, that the cause was clear for the United States and that the motion could not be sustained, with his request of a postponement till Monday to reflect on arguments, which he seemed to be confident were susceptible of such easy refutation; that it could not be justly called an attempt to divide the jury from the court; that it might be said more correctly, that by the prejudices which had been so industriously excited against the accused and even the court, it was attempted to divide the people from the court; that it was exceedingly improper to utter any sentiment calculated to excite the resentments of the jury. Mr. BOTTS referred to the time occupied in the trial of Hardy, &c. the long, claborate and able defence made, by Mr. Erskine and the promptitude with which the counsel on one side answered the arguments of those on the other side of that prosecution. He also referred to the zeal and perseverance with which the counsel for the United States had, in a preceding stage of this very prosecution, urged the necessity of the court giving an immediate opinion, in order to satisfy the people of Virginia; that he was silent himself at the time, but as it appeared to him to be in a style of threat to the court, it made a lasting impression. on his mind.

Mr. HAY and Mr. WIRT replied and enforced the same arguments which Mr. Hay had before used. They particularly observed, that it was presumable, that an argument which occupied two whole days in delivery to the court must have required considerable labour and reflection to arrange and digest it, and that it was unreasonable to suppose that such an argument could be fully comprehended by a preparation of one day; that five or six gentlemen of great professional experience were united in the defence; that this motion might be considered a mere "ruse de guerre," that they sprang on the counsel for the United States as from an ambuscade; that the mere consultation of the authorities relied on by their opponents, without further reflection, would require more time than those gentlemen were willing to allow them; that as it was so very important a question, as gentlemen themselves could not but admit, that if the motion succeeded there would be an end of the cause, the court must feel every disposition to grant the necessary time to enable the counsel to do justice to those whose interests they had engaged to support; that they could

not well conceive how gentlemen could reconcile to themselves to make any opposition to such a motion.

The court granted the motion, and the argument was postponed till Monday accordingly.

The court then adjourned till to-morrow.

SATURDAY, August 22d, 1807.

The court met agreeably to adjournment.

The indictment against Herman Blannerhassett was read. Mr. BOTTS suggested that there was a misnomer in it, and as he had not had an opportunity since discovering it of consulting the gentlemen associated with him in the defence, he wished the arraignment of Mr. Blannerhassett to be postponed, which was done.

Mr. MARTIN said, that he would take this opportunity to refer the gentlemen to some other authorities on the points made by the accused,

Upon the right and duty of the court, to decide whether an overt act have been proved or proved by two witnesses, he cited Cowp. Rep. 112 to 117-12, 60: page 5. 4 State Trials 661. Idem 717.

To shew what authority an extrajudicial opinion ought to have with the court. Vaughan 382.

The court then adjourned till Monday next.

MONDAY, August 24, 1807.

As soon as the court met, Mr. RANDOLPH said that he would make one observation which he had omitted, concerning the constitution of the United States, as bearing on the point under consideration, that "the accused had thereby a right to know the nature and cause of his accusation;" that if this constitutional provision were ever to be enjoyed, it ought to be when an indictment was exhibited against him, involving his reputation and life; but this indictment gave him no such information. Instead of charging him with an act of procurement as an accessory, it misled him into a belief, that he would only be prose cuted for his own acts.

Mr. MAC RAE then addressed the court to the following effect.

May it please your Honours,

The counsel for the prisoner, in delivering their arguments at a very great length, made, as far as I could comprehend them, two points in support of their motion; for though in