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SPEECH OF MR. WICKHAM,
ON THE TRIAL OF AARON BURR, LATE VICE-PRESIDENT OF THE
UNITED STATES, FOR HIGH TREASON.
THE trial of Mr. BURR ON THE CHARGE OF TREAson, had been carried on with little interruption for three months, when it appearing that there was no possibility of legally establishing the charge, or, whatever the prisoner's intentions might have been, of proving a manifest overt-act against him, a motion was made on his behalf to exclude farther evidences on the trial for treason.The question was of the utmost importance, and was argued in a manner worthy of it—to adopt the words of Chief Justice Marshall on the occasion,-“A degree of eloquence seldom displayed on any occasion, embellished a solidity of argument and a depth of research by which the court was greatly aided in forming the opinion it was to deliver.” The motion succeeded, and the consequence was a verdict of NOT GUILTY.
In support of the motion, the following speech was made by Mr. Wickham.
MAY IT PLEASE YOUR HONOURS:
If this were an ordinary case, that were likely to be terminated within the period, or ten times the period, that is commonly occupied in making a decision, we should not now have attempted to make an interruption: but it is obviously not so, when we take a view of 130 or 140 witnesses, which the prosecution has announced their design to bring forward, (and the defendant has about 20 to produce in his behalf,) and when we see the number of counsel employed on each side. From these VOL. II.
considerations, upon the common mode of calculation, we must anticipate that it will take up weeks, if not months, before we shall be permitted to see a close to this (already) tedious enquiry: nay, sir, you cannot have a well grounded hope offered you, that, at this inclement and sickly season of the year, it will ever be terminated.
But there is enough already discovered in the case, to satisfy you that, prove what they will besides, the prose. cutor must fail in his aim, beyond the possibility of a doubt. He has no alternative: there is enough to show this jury, from the statentent of the gentleman himself, that it is impossible for him, in any way within his power, to obtain the conviction of Col. Burr; and the idea of his proceeding is absurd, and can have no other effect than an immense and useless waste of time, and a long imprisonment of the jury to the great possible injury of their healths. He ought at once (himself) on these grounds, to go forward, and agree to close the cause.
It is admitted by the attorney, sir, that Col. Burr was not present, nor within the district, when the overt act charged was stated to have been committed. I proceed upon this position, which I understand to be admitted in fact.
Mr. Hay. I only stated that we are not prepared to prove that he was present.
Mr. Wickham. If it shall not be proven that he was present, sir, I contend that under the constitution and laws of the United States; under the law of England; under the invariable usages of all courts, it is impossible to maintain such a presentment as that of levying war against the United States. It must, inevitably, be proved that the person was actually present to levy the war, in person, before it can be denominated an overt act of levying war. I know that there are dicta of a different description in some few English authorities, but I shall be able in its
place to establish undeniable proof of its inapplicability at the time and place. It is a duty that I owe, not only to my client, but to every citizen in this community, because every individual is interested in it: it is a duty that I owe to posterity, and which, if it were only for their sake, I never would Ainch from executing.
The first ground I shall take up to prove this position is the constitution of the United States. I never will give my tacit assent to so dangerous a doctrine as to admit that, under the constitution of our country, any man can possibly commit treason against the country except he be actually present in person to do the act. On that point alone, though there are many others, I flatter myself to be able to prove to your honours that the present case is not sustainable.
Art. 3. sect. 3. constitution United States, reads, that “Treason against the United States shall consist only in levying war against them; or in adhering to their enemies, giving them aid and comfort,” &c.
In discussing this question, my client will pardon me if I say that I feel a great deal of pleasure in stating that it is not his case alone that I am now arguing, under this position: but it is the case of every man that breathes in this community: that I refer not to the good or bad deeds of Col. Burr-he may be as bad a man as the counsel on the other side think that he is: or he may be as good as his counsel contend that he is. It is an abstract principle that I contend for, relating not to any particular man, but to all men; and it will be a governing principle, as long as the United States shall continue a people,' with the same habits and liberties. If our constitution shall even “ vanish, and leave not a wreck behind,” yet this will be a governing doctrine, that cannot change.
The words of the constitution are plain, and no person can be convicted for treason under it unless he actually
levies war against the United States. There is no neces. sity of resorting to any artificial rules of construction whatever, to understand the meaning of these words: it is obvious. But, if we are to construe it by any artificial rules, where are they to be drawn from? Why, sir, from the common law of England, and the rules of courts there, connected as they are with absurdities. They have put a construction upon their statutes on treason; and their courts have been governed by it, but their constructions, on their statutes, are not applicable here, because our constitution, which originally declared what treason should be in this country, is different from a statute that was made to alter or improve the common law, which before existed, as in England. Our constitution is a new, and original compact, made between the people of the United States for their mutual government; and has no reference to rules of any particular arts or science, to jurisprudence, or any such thing; but it is formed upon the sound principles of reason and moral rights, which are of superior dignity to a statute.
If, therefore, these words, according to their natural meaning, will bear the construction I contend for; and the constitution is superior to any statutory provisions; it is not necessary to argue farther on this point, unless the words themselves lead to absurdity. The words themselves, were introduced to prevent any arbitrary construction, or any dangerous doctrine, which sound reason and propriety imperiously forbid the genius of our government to permit: and even though they may be supposed to lean to the side of humanity, yet it is a true maxim, that it is better for ninety-nine guilty persons to escape punishment than that one innocent man should suffer under an arbitrary and wrong construction of law. Thus, every argument, drawn from reason and principles of right, is in our favour. But, if the counsel on the other
side will rely upon this arbitrary principle in their reasoning, I shall contend, that their construction is not warranted, either on the principles of English law, or upon our constitution.
Upon the English law, Lord Coke (who had no bowels of human kindness) is the first and principal to support the artificial and arbitrary constructions, and his doctrines are contradicted and opposed by many writers, since that time, who are deservedly venerated for their talents and humanity. The principle declared by him, and which must be contended for in this case, is, that all are principals in treason, and that there is no such character as an accessory; and thus those who, in any degree, participated in it, are included in its guilt by relation. The rule therefore is a borrowed one, and drawn from the worst of times. Now what is an accessory to a fact. It must be either an aider or abettor before, or at the fact; or a receiver after the fact. But the writers in England have not settled the doctrine that all are principals in treason: it is an abstract proposition of some of the writers, and has not been acted on, except in the case of Sir Nicholas Throgmorton, if that can so be denominated; and we are not to shape our decisions on a principle not tested even in England. That case is reported in 1 State Trials, p. 63. I will not read it, because your honour can refer to a faithful copy (in abstract) of it in Tucker's Blackstone, vol. 4, p. 44, appendix. In that case the charges are variouslevying war and compassing the king's death; so that the prosecutor had his chance of convicting the prisoner under some or other. I have looked into all the cases respecting aiders or accessories before the fact, and discover no one to vindicate the doctrine that a person can be a principal in treason or in felony unless he was present; and I presume the doctrine cannot be supported. The case of Mary Speak, in Tremain's Pleas, p. 3, is the only