Sidebilder
PDF
ePub

"The like in case of burglary, though some stood at the land's end or field-gate to watch if any came to disturb them (Co. P. C. page 64. 11 H. 4, 13 b.) yet they are said to be burglars, because present, aiding and assisting to the burglary."

These cases may be well compared to the case at bar. The first case for instance of the house and several rooms, may be compared to the United States collectively, and the individual states separately. Abstractedly, the different states may be considered as so many rooms, belonging to the same house. All being one party acting with one common view and at the same time and depending on mutual aid and support, though in different states, ought to be considered as present at the different scenes of operation and responsible in equal degree for whatever is done in pursuance of their common design. In like manner the second case of stealing deer out of the park may also be justly likened to this case. Those who were in other parts of the same park, though not present where one party killed the keeper, were equally guilty with him in the eye of the law, because they were all of the same party and in pursuit of the same design and expecting mutual support and defence. The different states may be compared to different parts of the park; all being of the same party, at the same time contributing to one common object (though in different states) and expecting mutual aid, ought to be held responsible for the acts of all, perpetrated in pursuance of their general design. The same comparison will hold between the case of burglary and this case. Though the prisoner may have been in Kentucky himself, acting towards the accomplishment of his great design, and part of his party were acting the parts assigned to them at Philadelphia, while others were equally active on Blannerhassett's island, yet he and those with him were in law regarded as present at the commission of the overt act on the island and of cvery other overt act committed any where. In Foster 349, 350. this doctrine is further explained, "When the law requireth the presence of the accomplice at the perpetration of the fact, in order to render him a principal, it doth not require. a strict actual immediate presence, such presence as would make him an eye or ear witness of what passeth.

"Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it. For it was made a common cause with them, each man operated in his station at one and the same instant, towards the same common end; and the part each man took, tended to

give countenance, encouragement and protection to the whole gang, and to insure the success of their common enterprise." So here, the persons engaged in the conspiracy have different parts assigned to them. Some are at Beaver, some at Blannerhassett's island, some in Kentucky, and some even as low as NewOrleans; some actively employed and others vigilantly attending to warn them of the approach of the Philistines. All are in the eye of the law present at every overt act which is committed. It was a common cause, to produce the same common end; and they were all performing their different parts at the same time.

If there had been an authority read to fit the case exactly, it could not be more strictly appropriate. Every material circumstance which relates to the character of this enterprise is here expressly recognised. I believe the present case is precisely similar to that which I have just read, and that it will be regarded as such by the court.

I am much indebted to the court for suggesting the mode of adverting to the evidence and the impropriety of its determining the question, whether an overt act have been committed or not. It meets my most perfect approbation. There would be an evident impropriety in stating the evidence in any other form than that in which it has been done.

From 2 Dallas's Reports, page 355, 356, I will shew, that a court of the United States, acting in a case of this sort, has decided, that a man who is not actually present may be proceeded against as a principal in treason. In the case of the United States against Mitchel, the charge of the court was delivered to the jury in substance, by judge Patterson, thus, "the first question to be considered is, what was the general object of the insurrection? If its object was to suppress the excise offices and to prevent the execution of an act of congress, by force and intimidation, the offence in legal estimation is high treason. It is an usurpation of the authority of government; it is high treason by levying of war. Taking the testimony in a rational and connected point of view, this was the object, it was of a general nature and of national concern.

"Let us attend for a moment to the evidence; with what view was the attack made on general Neville's house? Was it to gratify a spirit of revenge against him as a private citizen? As an individual? No: As a private citizen, he had been highly respected and beloved; it was only by becoming a public officer that he became obnoxious; and it was on account of his holding the excise office, alone, that his house had been assailed and his person endangered. On the first day of attack, the insurgents were repulsed, but they rallied, returned with greater force, and fatally succeeded in the second attempt. They were arrayed in a military manner. They affected the military forms of negotiation by a flag. They pretended no personal hostility to general Neville, VOL. II.

G

but they insisted on the surrender of his commission. Can there be a doubt then, that the object of the insurrection was of a general and public nature?

"The second question to be considered is, how far was the prisoner traitorously connected with the insurgents? It is proved by four witnesses that he was at Couch's Fort, at a great distance from his own home, and that he was armed: One witness proves positively, that he was at the burning of general Neville's house; and another says, that it runs in his head, that he also saw the prisoner there. On this state of the facts, a difficulty has been suggested. It is said that no act of treason was committed at Couch's Fort, and that however treasonable the proceedings at general Neville's may have been, there are not two witnesses who prove that the prisoner was there. Of the overt act of treason, there must undoubtedly be proof by two witnesses; and it is equally clear, that the intention and the act, the will and the deed must concur; for a bare conspiracy is not treason. But let us consider the prisoner's conduct, in a regular and connected course; he is proved by a competent number of witnesses, to have been at Couch's Fort. At Couch's Fort, the conspiracy was formed for attacking general Neville's house, and the prisoner was actually passed on the march thither. Now in Foster 213, the very act of marching is considered as carrying the traitorous intention into effect, and the jury (who will sometimes find the most positive testimony contradicted by circumstances which carry irresistible conviction to the mind) will consider how far this aids the doubtful language of the second witness, even as to the fact of the prisoner's being at general Neville's house.

"On the personal motives and conduct of the prisoner, it would be superfluous to make a particular commentary; he was armed, he was a volunteer, he was a party to the various consultations of the insurgents; and in every scene of the insurrection, from the assembly at Couch's Fort to the day prescribed for submission to the government, he makes a conspicuous appearance. His attendance armed, at Braddock's field, would of itself amount to treason, if his design was treasonable.

"Upon the whole, whether the conspiracy at Couch's Fort may of itself be deemed treason, or the conspiracy there and the proceedings at general Neville's house are considered as one act, (which is perhaps the true light to view the subject in) the prisoner must be pronounced guilty; the consequences are not to weigh with the jury; it is their province to do justice, the attribute of mercy is placed by our constitution in other hands."

Now here is a case not by any means half as strong as the case before the court. The treason was only proved by one witness, and the only regular proof was, that the party accused was at Couch's Fort. He was present, it is true, at the various consultations of the insurgents, but there was no constitutional proof

that he was at general Neville's house, the only place where a complete overt act of treason was committed; he was only seen marching (as proved by the second witness) towards the place, yet he was proceeded against as a principal in the treason and found guilty. Here the prisoner was not only the prime mover and contriver of the whole plot at Blannerhassett's island and elsewhere, but he went from the island to Kentucky and from thence to the mouth of Cumberland the place of their general meeting and there assumed the command, as he had before planned and directed all their operations.

The gentlemen have said, that the opinion of the supreme court, in the case of Bollman and Swartwout, relied on by the counsel for the prosecution, is to be considered not as a regular solemn opinion, delivered on a point depending before the judges, but as extrajudicial and therefore not authority. I have read the opinion in Bollman and Swartwout, and it does appear to me that all parts of it, which relate to what constitutes treason, are completely judicial.

I was not present to hear the opinion, nor is it material that I should have been; it is enough that I have read the opinion itself; it shews that this was the point on which the court delivered a deliberate opinion; it is the point on which the opinion turns. But I do not refer to it for the purpose of shewing what treason is, but to shew that a man need not be present in order to be considered as a principal in treason. The language of the opinion is so explicit and pointed, that it cannot possibly, in my estimation, be misunderstood. "It is not the intention of the court to say, that no individual can be guilty of this crime, who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." Now sir, this is the very case which the opinion supposes. He is not only supposed to be leagued, but the prime mover of the general conspiracy; a body of men have assembled to effect by force their treasonable design, and the prisoner has performed many parts, though not present at Blannerhassett's island. He is supposed to have formed this deep laid plan of treason for his own personal aggrandizement and elevation. There is no doubt then with respect to the ground which the prisoner ought to occupy. The remoteness of the place where he was when the acts on the island were committed cannot, according to this solemn and deliberate determination of the highest tribunal of our country, diminish his guilt; and this opinion is often repeated in that judicial sentence.

I shall content myself with what has been already said, to shew, that whether this question is to be considered as it relates to the

constitution of the United States or the laws of England, the form of either count of the indictment is proper. I shall not argue that point, because in all my argument, I have believed and therefore insisted, that the prisoner is not to be regarded as an accessory but as a principal, both according to a rational construction of the constitution and the common law; nor will it be necessary for me to say any thing with respect to the mode of proceeding against the accessory; because I presume the decision will be, that he is to be considered as a principal.

But perhaps, it will be necessary for me to notice a few remarks made by Mr. Wickham and Mr. Randolph. Mr. Wickham fancied that he had discovered an important defect in the indictment, because it does not state that the accused levied public war. This objection surely is entitled to no consideration. The indictment describes the offence in the language of the constitution, that he levied war against the United States. The constitution does not contain such an expression as public war; it speaks only of levying war, which of itself implies without any epithet that it is public, and from the nature of things cannot be private.

Besides, the precedents do not uniformly charge the party accused with levying a public war. In 5 State Trials, the indictment against Vaughan does not state that he levied a public war. Foster 208, 218, states, that though in case of levying war, the indictments generally charge that the defendants were armed and arrayed in a warlike manner, and, where the case will admit of it, the circumstances of swords, guns, &c. have been added; yet the merits of the case never turned singly on any of those circumstances. In the cases of Damaree and Purchase, which were for the constructive levying of war, there was nothing given in evidence of the usual pageantry of war, no military weapons; and yet the want of those circumstances weighed nothing with the court, though much insisted on by the prisoner's counsel. In page 218, he states that listing and marching are sufficient overt acts, without coming to a battle. These doctrines are confirmed in East's Crown Law, page 67, 68. From these it may be inferred, that though it may be usual to insert the word public, because war must from its nature be public, yet it is unnecessary to use it; for if it be unnecessary in any indictments for constructive treason, to prove the usual pageantry of war, (as weapons, banners, drums, &c.) and if the want of those circumstances weigh nothing with the court, it surely is not essential to charge in the indictment what need not be proved; and if these be unnecessary to be stated, it must be equally so to state that a public war was levied. I refer the court, for a further confirmation of this doctrine, to 5 Bac. 121; and in the second indictment against John Fries, the word public is omitted, though it was inserted in the first. As Mr. Wickham cited some cases to shew, that the

« ForrigeFortsett »