Burr believed that with a relatively small and well-armed military force, he could pry territory from Louisiana and build his own empire. Perhaps he might even take Mexico. Burr would need manpower to accomplish his objectives.
Arrogant, unscrupulous, and overly fond of liquor, Wilkinson had befriended Burr during the Revolution. Despite his faults, Wilkinson represented a logical choice for Burr. As commander-in chief, Wilkinson controlled the military and could move about the West without suspicion to cultivate alliances. But Burr also trolled the waters for supporters with even more power. Burr offered to help Britain take Western territory from the United States. Merry immediately sent a dispatch to Britain, detailing Burr's offer to "effect a separation of the western part of the United States" from the rest of the country.
In return, Burr wanted money and ships to carry out his conquest. In April, , shortly after his term as vice president ended, Burr journeyed West on a reconnaissance mission. In town after town, he dropped hints of the expedition to come. And in town after town, he met men that he believed would support him in his enterprise.
One of these men, Harman Blennerhassett, would prove a loyal follower. Blennerhassett, an eccentric Irish gentleman, had come to the United States with a fortune in hand. On a small island in the Ohio River near Marietta, he had built himself a mansion. There, with his wife and children, he lived a life of luxury. But thanks to Aaron Burr's scheme, Blennerhassett's paradise would soon crumble. Burr continued his Western odyssey, visiting with Wilkinson at a western fort and dropping south to New Orleans.
By the time Burr returned to Washington in November, he had enlisted a number of supporters, including former U. Still, problems remained. Support from the British had not yet arrived. In fact, it never would -- nor would assistance from Spain. Perhaps worse, rumors about Burr's plans had begun to circulate and had even been published in Eastern newspapers. Unshaken, Burr continued his quest for support.
A treason trial was held against Burr in after he was hunted down and arrested. The safe route out of the city was designed by Burr, who guided 5, men to safety and salvaged US artillery from the city. Washington promoted Burr to lieutenant colonel in , partly due to his command during the retreat of New York, and he assumed command of more than men after that.
A letter from Dr. Charles D. Smith appeared in a newspaper. However, he was ultimately acquitted of all charges. They set out together, or in parties, to rob a particular individual; and each performs the part assigned to 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 committed. If murder or robbery actually take place, all are principals; and all in construction of law are present. But suppose they set out at the same time or at different times, by different roads, to attack and rob different individuals or different companies; to commit distinct acts of robbery.
It has never been contended that those who committed one act of robbery, or who failed altogether, were constructively present at the act of those who were associated with them in the common object of robbery, who were to share the plunder, but who did not assist at the particular fact. They do, indeed, belong to the general party; but they are not of the particular party which committed this fact. Foster concludes this subject by observing that "in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary:" that is, at the particular fact which is charged.
He must be ready to render assistance to those who are committing that fact. He must, as is stated by Hawkins, be ready to give immediate and direct assistance.
All the cases to be found in the books go to the same point. Let them be applied to that under consideration. 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 an 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 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. To return, then, to the application of the cases.
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 co-operate 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 co-operation 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 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. 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 Allegany, and the overt act 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 supposition 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 Braddock's field, in the county of Allegany, for the purpose of committing acts of violence at Pittsburg; that there was also an assemblage at a different time at Couch's fort, at which the prisoner also attended.
The general and avowed object of that meeting was to concert measures for resisting the execution of a public law. At Couch's fort the resolution was taken to attack the house of the inspector, and the body there assembled marched to that house and attacked it. It was proved by the competent number of witnesses that he was at Couch's fort armed; that he offered to reconnoitre 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 run in his head that he had seen him there. But what was the opinion of the judge in this case? Couch's fort and Neville's house being in the same county, the assemblage having been at Couch's fort, and the resolution to attack the house having been there taken, the body having for the avowed purpose moved in execution of that resolution towards the house to be attacked, he inclined to think that the act of marching was in itself levying war.
If it was, then the overt act laid in the indictment was consummated by the assemblage at Couch's and the marching from thence; and Mitchell was proved to be guilty by more than two positive witnesses.
But without deciding this to be the law, he proceeded to consider the meeting at Couch's, the immediate marching to Neville'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 taken an active part in it; and the judge declared it to be unnecessary that all should have seen him at the same time and place.
But suppose not a single witness had proved Mitchell to have been at Couch's, or on the march, or at Neville's. Suppose he had been at the time notoriously absent in a different state.
Can 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 opinion, 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 life to strike his name from that bloody list in which the name of Jeffreys 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 assembled in Blennerhassett's Island had previously met at some other place in the same county; that Burr had been proved to be with them by four witnesses; that the resolution to march to Blennerhassett's Island 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 directly after leaving the island; that this indictment had charged the levying of war in Wood county generally -- the cases would, then, have been precisely parallel; and the decision 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 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 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 clearly test this construction than putting the case into a shape which it may possibly take. Suppose the law be that the indictment would be defective unless it alleged the presence of the person indicted at the act of treason.
If, upon a special verdict, facts should be found which amounted to a levying of war by the accused, and his counsel should insist that he could not be condemned because the indictment was defective in not charging that he was himself one of the assemblage which constituted the treason, or because it alleged the procurement defectively, would the attorney admit this construction of his indictment to be correct?
I am persuaded he would not, and that he ought not to make such a concession. If, after a verdict, the indictment ought to be construed to allege that the prisoner was one of the assemblage at Blennerhassett's Island, it ought to be so construed now. But this is unimportant; for if the indictment alleges that the prisoner procured the assemblage, that procurement becomes part of the overt act, and must be proved, as will be shown hereafter. The second position is founded on 1 Hale, P.
While I declare that this doctrine contradicts every idea I had ever entertained on the subject of indictments, since it admits that one case may be stated, and a very different case may be proved, I will acknowledge that it is countenanced by the authorities adduced in its support. To counsel or advise a treasonable assemblage, and to be one of that assemblage, are certainly distinct acts, and, therefore, ought not to be charged as the same act.
The great objection 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 which the accused is to defend himself. These dicta of Lord Hale, therefore, taken in the extent in which they are understood by the counsel for the United States, seem to be repugnant to the declarations we find everywhere that an overt act must be laid, and must be proved.
No case is cited by Hale in support of them, and I am strongly inclined to the opinion that had the public received his corrected instead of his original manuscript, they would, if not expunged, have been restrained in their application to cases of a particular description.
Laid down generally, and applied universally to all cases of treason, they are repugnant to the principles for which Hale contends, for which all the elementary writers contend, and from which courts have in no case, either directly reported or referred to in the books, ever departed.
These principles are, that the indictment must give notice of the offence; that the accused is only bound to answer the particular charge which the indictment contains, and that the overt act laid is that particular charge. Under such circumstances, it is only doing justice to Hale to examine his dicta, and if they admit of being understood in a limited sense, not repugnant to his own doctrines nor to the general principles of law, to understand them in that sense.
Had he designed to apply the principle universally he would have stated it as a general proposition; he would have laid it down in treating on other branches of the statute as well as in the chapter respecting the coin; he would have laid it down when treating on indictments generally. But he has done neither. Every sentiment bearing in any manner on this point, which is to be found in Lord Hale while on the doctrine of levying war or on the general doctrine of indictments, militates against the opinion that he considered the proposition as more extensive than he has declared it to be.
No court could be justified in extending the dictum of a judge beyond its terms to cases which he had expressly treated, in which he has not himself applied it, and on which he, as well as others, has delivered opinions which that dictum would overrule.
This would be the less justifiable if there should be a clear legal distinction indicated by the very terms in which the judge has expressed himself between the particular case to which alone he has applied the dictum and other cases to which the court is required to extend it.
There is this clear legal distinction: "They may," says Judge Hale, "be indicted for counterfeiting generally. The books concur in declaring that they cannot be so indicted. A special overt act of levying war must be laid. This distinction between counterfeiting the coins and that class of treasons among which levying war is placed is taken in the statute of Edward III.
That statute requires an overt act of levying war to be laid in the indictment, and does not require an overt act of counterfeiting the coin to be laid.
If in a particular case, in which a 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 not be sufficient, 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 to himself and with the general principles of the law only by permitting the limits which he has himself given to his own dictum to remain where he has placed them.
In page , Hale is speaking generally to the receiver of a traitor, and is stating in what such a receiver partakes of an accessory: 1st. In all cases of a receiver, the indictment must be special on the receipt, and not general.
If it may be otherwise in some treasons without contradicting the doctrines of Hale himself as well as of other writers, but cannot be otherwise in all treasons without such contradiction, the fair construction is, that Hale used these words in their restricted 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 lie, but an overt act of the treason must be charged. The two passages of Hale thus construed may, perhaps, 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, J. Kelyng, 26, and 1 Hale, P. It is stated in both that if a man be indicted as a principal and acquitted, he cannot afterwards be indicted as an accessory 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.
Kelyng says an accessory 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 in felony it does not require that an overt act should be laid. The indictment, therefore, may be general; but an overt act of levying war must be laid. These cases, then, prove in their utmost extent no more than the cases previously cited from Hale and East.
This distinction between indictments which may state the fact generally, and those which must lay it specially, bear some analogy to a general and a special action on the case.
In a general action the declaration may lay the assumpsit according to the legal effect of the transaction, but in a special action on the case the declaration must state the material circumstances truly, and they must be proved as stated.
This distinction also derives some aid from a passage in Hale page immediately preceding that which has been cited at the bar. He says: "If A be indicted as principal and B as accessory before or after, and both be acquitted, yet B may be indicted as principal, and the former acquittal as accessory is no bar. But why is it that an acquittal as principal may be pleaded in bar to an indictment as accessory, while an acquittal as accessory 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 principal, but that the principal crime may not be given in evidence on an indictment as accessory, the question recurs, on what legal ground does this distinction stand?
I can imagine only this: an accessory being quodam modo a principal in indictments where the law does not require the manner to be stated, which need not be special, evidence of accessorial guilt, if the punishment be the same, may possibly be received; but every indictment as accessory must be special. The very allegation that he is an accessory must be a special allegation, and must show how be became an accessory.
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. If this be the legal reason for the distinction, it supports the exposition of these dicta which has been given. If it be not the legal reason, I can conceive no other. 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 the 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 procurment 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 was guilty, a collateral point?
This cannot be. The presence of the party, where presence in 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 conjectured 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 cojectures or 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.
If, then, the doctrines of Kelyng, Hale, and East, be understood in the sense in which they are pressed by the counsel for the prosecution, and are applicable in the United States, the fact that the accused procured the assemblage on Blennerhassett's Island must be proved, not circumstantially, but positively, by two witnesses, to charge him with that assemblage.
Perhaps out of frustration, they destroyed the fine furniture, vases, and art of Blennerhassett's mansion, fired rifle balls through his painted ceilings, and drank the whiskey stored in his cellar. Burr was in Nashville when he learned that federal authorities were out to crush his plans. On November 22, he beat a hurried retreat down the Cumberland River.
All the Burr detachments met up at the Falls of the Ohio. Addressing his recruits, Burr told them that he had intended at this point to describe their specific objective, but circumstances had caused him to defer doing so.
Instead, the flotilla would head down the Mississippi, where Burr--still ignorant of Wilkinson's betrayal--expected military backing. Only upon reaching Bayou Pierre, thirty miles above Natchez, did Burr learn that Wilkinson had turned from co-conspirator into his pursuer.
Burr wrote a public letter declaring the innocence of his intentions: "If the alarm which has been excited should not be appeased by this declaration, I invite my fellow citizens to visit me at this place, and to receive from me, in person, such further explanations as may be necessary to their satisfaction, presuming that when my views are understood, they will receive the countenance of all good men.
A militia detachment of thirty men caught up with Burr when he and his expedition of between sixty and hundred men were camped across from Natchez, on the west bank of the Mississippi. Burr was handed letter from the Governor of Mississippi demanding his surrender. Burr responded to the letter by denouncing Wilkinson whose "perfidious conduct" had "completely frustrated" his "projects.
The next day Burr met with the Governor who convinced him to surrender and allow himself to be conducted to the nearby town of Washington. A grand jury, after listening to evidence against Burr, declared Burr "not guilty of any crime or misdemeanor against the United States.
He disguised himself as a boatman and disappeared into the wilderness on the eastern side of the Mississippi. Once additional information about Burr's activities became known, a new warrant was issued for his arrest. Arrest finally came in mid-February on the Tombigbee River, in present day Alabama.
Burr was taken to Fort Stoddart for two weeks, then conducted by a nine-man military guard on a one-thousand mile horseback trip to Richmond, where he would stand trial for treason.
Four days later he was brought to another room in the hotel for an examination before the judge who would conduct his trial.
The examination began with District Attorney George Hay the son-in-law of future President James Monroe supporting the government's motion for commitment on charges of treason and "high misdemeanors. Burr also addressed the Court. He offered an innocent interpretation of his own actions and emphasized his acquittal by a grand jury in the Mississippi Territory. He complained bitterly about his recent treatment, telling Marshall he had been denied the use of ink and paper--not even permitted to write to his daughter.
On April 1, Chief Justice Marshall delivered his opinion on the government's motion. Marshall concluded that the prosecution failed to produce sufficient evidence of treason. Marshall's refusal to insert the treason charge enraged President Jefferson, who suspected that the Chief Justice's judgment was warped in favor of Burr by his own dislike of Jefferson and the course of his Administration. Jefferson took it as a personal mission to secure Burr's conviction. He had printed circulars sent out throughout the western country asking "every good citizen to step forward, and communicate to the government any information he may possess.
Secretary of State James Madison wrote Andrew Jackson, requesting that he help gather depositions from around Tennessee that might help convict Burr. Meanwhile in New Orleans, Wilkinson sent out numerous agents to collect whatever evidence they could. Jefferson's own view of Burr's actions is best revealed in his letters of He saw that Burr's "first enterprise was to have been the seizure of New Orleans" which would "place him at the door of Mexico.
Shortly after noon on May 22, , the trial of Aaron Burr opened in Richmond. While a grand jury awaited the arrival of General Wilkinson from New Orleans, Chief Justice Marshall considered both prosecution and defense motions. The prosecution, noting that "the evidence is different now," again moved for commitment of Burr on the charge of treason.
The defense countered, arguing that to establish the crime of treason the prosecution must prove that an overt act of treason had been committed by the defendant in a war and that, under the Constitution, the overt act must be testified to by two witnesses and must have occurred in the district of the trial.
When Marshall sided with the defense's narrow interpretation of treason, the prosecution knew it had its back to the wall. Marshall also weighed a defense motion for a subpoena duces tecum to be directed to the President, requiring that he turn over certain letters from Wilkinson that might be helpful to the defense. Luther Martin, arguing for his motion, declared:. He has proclaimed him a traitor He has let slip the dogs of war, the hell-hounds of prosecution, to hunt down my friend.
And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake? It is a sacred principle, that in all such cases, the accused has the right to all the evidence which is necessary for his case.
On June 13, Marshall ruled that a subpoena to the President might issue. While Marshall recognized that urgent circumstances might prevent the President from complying with the subpoena, the court, he said, had "no choice" but to issue it. Jefferson never turned over the requested letters. Marshall, having no real alternative, quietly let the matter drop. Jefferson stated his position on the matter in a letter to George Hay:.
But would the Executive be independent of the Judiciary if he were subject to the commands of the latter, and to imprisonment for disobedience; if the smaller courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his executive duties?
On June 15, General Wilkinson--described by the defense as "the alpha and omega of the present prosecution"--arrived in Richmond to appear before the grand jury. Author Washington Irving, a trial spectator, watched as Wilkinson "strutted into court" and "stood for a moment swelling like a turkey-cock. Wilkinson's testimony had its intended effect. On June 24, the grand jury reported indictments against Burr for treason and high misdemeanor. Two days later, Burr pleaded not guilty to the charges, and the court adjourned until August 3.
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