[1486] See vol. I, 202, of this work.
[1487] 6 Cranch, 133-34.
[1488] 6 Cranch, 137-38.
[1489] _Ib._ 139.
[1490] 6 Cranch, 147-48.
[1491] At the risk of iteration, let it again be stated that, in
Fletcher _vs._ Peck, Marshall declared that a grant by a State, accepted
by the grantees, is a contract; that the State cannot annul this
contract, because the State is governed by the National Constitution
which forbids any State to pass any law "impairing the obligation of
contracts"; that even if the contract clause were not in the
Constitution, fundamental principles of society protect vested rights;
and that the courts cannot inquire into the motives of legislators no
matter how corrupt those motives may be.
[1492] For the first two decades of the National Government land frauds
were general. See, for example, letter of Governor Harrison of Indiana,
Jan. 19, 1802, _Am. State Papers, Public Lands_, I, 123; report of
Michael Leib, Feb. 14, 1804, _ib._ 189; and letter of Amos Stoddard,
Jan. 10, 1804, _ib._ 193-94.
[1493] Marbury _vs._ Madison, the Burr trial, and Fletcher _vs._ Peck.
[1494] _Annals_, 11th Cong. 2d Sess. 1881.
[1495] Harden: _Life of George M. Troup_, 9.
[1496] _Annals_, 11th Cong. 2d. Sess. 1882.
[1497] _Ib._
[1498] _Annals_, 11th Cong. 3d Sess. 415.
[1499] _Annals_, 12th Cong. 2d Sess. 856-59.
[1500] _Annals_, 12th Cong. 2d Sess. 860.
[1501] _Annals_, 13th Cong. 2d Sess. 1697.
[1502] _Ib._ 1840-42.
[1503] _Annals_, 13th Cong. 2d Sess. 1848.
[1504] _Ib._ 1850.
[1505] _Ib._ 1855.
[1506] _Ib._ 1858-59.
[1507] _Ib._ 1873-75.
[1508] _Annals_, 13th Cong. 2d Sess. 1925; see also Sess. I, chap. 39,
March 31, 1814, _U.S. Statutes at Large_, III, 117.
[1509] Daniel to Ezekiel Webster, March 28, 1814, _Private
Correspondence of Daniel Webster_: Webster, 244.
END OF VOLUME III
APPENDIX
APPENDIX A
THE PARAGRAPH OMITTED FROM THE FINAL DRAFT OF JEFFERSON'S MESSAGE TO
CONGRESS, DECEMBER 8, 1801[1510]
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 binds me 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.
APPENDIX B
LETTER OF JOHN TAYLOR "OF CAROLINE" TO JOHN BRECKENRIDGE CONTAINING
ARGUMENTS FOR THE REPEAL OF THE FEDERALIST NATIONAL JUDICIARY ACT OF
1801[1512]
VIRGINIA--CAROLINE--Dec^r 22^{d.} 1801
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 the _office_ thus established, is to
continue.
The second, whether the officer is to continue, after the office is
abolished, as being unnecessary.
Congress are empowered "from _time to time_ to ordain & establish
inferior courts."
The law for establishing the present inferior courts, is a legislative
construction, affirming that under this clause, congress may _abolish_
as well as create these _judicial offices_; because it does expressly
_abolish_ the 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 his _office_ during
good behavior." Could it mean, that he should hold this _office_ after
it was _abolished_? 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 of _bad behaviour_, because, if
this had not been the case, the constitution would have directed "that
the judges should hold their offices _and salaries_ during good
behaviour," instead of directing "that they should" hold the salaries
during _their continuance_ in 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: ob^{t:} Sev^{t.}
JOHN TAYLOR[1513]
FOOTNOTES:
[1512] See footnote to 58 of this volume.
[1513] Breckenridge MSS. Lib. Cong.
APPENDIX C
CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE
HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON.[1514] ALSO
RECENT BOOKS AND ARTICLES ON THE DOCTRINE OF JUDICIAL REVIEW
OF LEGISLATION
Holmes _vs._ Walton (November, 1779, New Jersey), before Chief Justice
David Brearly. (See Austin Scott in American _Historical Review_, IV,
456 _et seq._) If Marshall ever heard of this case, it was only because
Paterson, who was Associate Justice with Marshall when the Supreme Court
decided Marbury _vs._ Madison, was attorney-general in New Jersey at the
time Holmes _vs._ Walton was decided. Both Brearly and William Paterson
were members of the Constitutional Convention of 1787. (See Corwin,
footnote to 41-42.)
Commonwealth _vs._ 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 merely _obiter 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 Trevett _vs._ Weeden
(September, 1786; see Arnold: _History of Rhode Island_, II, 525-27,
Varnum's pamphlet, _Case of Trevett vs. Weeden_, and Chandler's
_Criminal 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 Marbury _vs._ Madison was decided.
It is unlikely that the recently discussed case of Bayard _vs._
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 see _Annals_,
2d Cong. 2d Sess. 1319-22). For a full discussion of this important case
see particularly Professor Max Farrand's analysis in the _American
Historical Review_ (XIII, 283-84), which is the only satisfactory
treatment of it. See also Thayer: _Cases on Constitutional Law_ (1,
footnote to 105).
Kamper _vs._ Hawkins (November, 1793, 1 Va. Ca. 20 _et seq._), a case
which came directly under Marshall's observation.
Van Horne's Lessee _vs._ Dorrance (April, 1795, 2 Dallas, 304), in which
Justice Paterson of the Supreme Court said all that Marshall repeated in
Marbury _vs._ Madison upon the power of the Judiciary to declare
legislation void.
Calder _vs._ Bull (August, 1798, 3 Dallas, 386-401), in which, however,
the Court questioned its power to annul legislation. Cooper _vs._
Telfair (February, 1800, 4 Dallas, 14). These last two cases and the
Hayburn Case had been decided by justices of the Supreme Court.
Whittington _vs._ 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 Marbury _vs._ 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 the _American 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 Rutgers _vs._ Waddington, decided by a New York justice of the
peace in 1784 (see _American Law Review_, XIX, 180), and the case of
Bowman _vs._ 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, State _vs._ ----, decided in
April, 1794 (1 Haywood, 28-40), and of Lindsay _et 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, see _Doctrine of Judicial Review_ by
Professor Edward S. Corwin of the Department of History and Politics,
Princeton University; also _The 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 Marbury _vs._ Madison.
The student should also consult the paper of William M. Meigs, "The
Relation of the Judiciary to the Constitution," in the _American Law
Review_ (XIX, 175-203), and that of Frank E. Melvin, "The Judicial
Bulwark of the Constitution," in the _American Political Science Review_
(VIII, 167-203).
Professor Charles A. Beard's _The Supreme Court and the Constitution_
contains 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. And _Power of
Federal Judiciary over Legislation_, by J. Hampden Dougherty, will be
profitable to the student.
Marbury _vs._ Madison is attacked ably, if petulantly, by Dean Trickett,
"Judicial Nullification of Acts of Congress," in the _North American
Review_ (CLXXXV, 848 _et seq._), and also by James B. McDonough, "The
Alleged Usurpation of Power by the Federal Courts," in the _American 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.
APPENDIX D
TEXT, AS GENERALLY ACCEPTED, OF THE CIPHER LETTER OF AARON BURR TO
JAMES WILKINSON, DATED JULY 29, 1806[1516]
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.
APPENDIX E
EXCERPT FROM SPEECH OF WILLIAM WIRT AT THE TRIAL OF AARON BURR[1517]
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.
APPENDIX F
ESSENTIAL PART OF MARSHALL'S OPINION ON CONSTRUCTIVE TREASON DELIVERED
AT THE TRIAL OF AARON BURR, ON MONDAY, AUGUST 31, 1807[1519]
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 legally present, 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 now examining, 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 be the 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 for the 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 accused procured 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 common law 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]
FOOTNOTES:
[1519] See _supra_, chap. IX.
[1520] _Burr Trials_, II, 424-38.
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---- Journal of the Executive Proceedings of the Senate of the United
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* * * * *
Transcriber's Notes:
1. Passages in italics are surrounded by _underscores_.
2. Obvious errors in spelling and punctuation have been corrected.
3. Footnotes have been renumbered and moved from the page end to the
end of their respective chapters.
4. Images have been moved from the middle of a paragraph to the closest
paragraph break.
5. Certain words use an oe ligature in the original.
6. Carat character (^) followed by a single letter or a set of letters
in curly brackets is indicative of subscript in the original book.