given by law a right to try the person so seized in any place which the general might select, and to which he might direct them to be carried.

The act of Congress, which the prisoners are supposed to have violated, describes as offenders those who begin, or set on foot, or provide, or prepare, the means for any military expedition or enterprise to be carried on from thence against the dominions of a foreign prince or state with whom the United States are at peace.

There is a want of precision in the description of the offense which might produce some difficulty in deciding what cases would come within it. But several other questions arise, which a court consisting of four judges finds itself unable to decide, and, therefore, as the crime with which the prisoners stand charged has not been committed, the court can only direct them to be discharged. This is done with the less reluctance because the discharge does not acquit them from the offense which there is probable cause for supposing they have committed, and if those whose duty it is to protect the nation, by prosecuting offend

ers against the laws, shall suppose * those

*137 who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony, and when able to say at what place the offense has been committed, institute fresh proceedings against them.

United States v. Aaron Burr.

NOTE.

AFTER his duel with Hamilton, discredited with his own political party and with the better element of the northern and eastern states, Aaron Burr, in the years 1805 and 1806, dreamed a dream as fantastic as that of any Elizabethan adventurer, to win for himself the crown of Mexico, and, adding to it the vast territories beyond the Mississippi, and perhaps New Orleans, and some part of the southern territory of the United States, to found a western empire. The exact limits of that scheme, and the means to be used for carrying it out, will, in all probability, never be known, probably Burr himself had planned but vaguely. What he did was this: He travelled among and popularized himself with the communities along the Ohio and Mississippi,-communities that thought less harshly of the death of Hamilton and were but loosely bound to the federal union; he consorted with malcontents like Commodore Truxton and General Eaton, who had grievances against the government; he intrigued, or tried to intrigue, with General Wilkinson, then ranking officer of the United States army, in command at New Orleans, for the support of the army. Finally, in the fall of 1806 he inspired a small gathering of men, who bore arms, on Blennerhassett's Island in the Ohio, who finally started down the Ohio in boats, an apparently peaceful vanguard for a settlement beyond the Mississippi preparatory to a descent on Mexico or on New Orleans. Just what they meant to do is not clear. But the collapse of Burr's house of cards was brought on by a sudden access of virtue that bore every appearance of cowardly treachery on the part of General Wilkinson. Wilkinson communicated to President Jefferson, with translations, certain cipher messages which Burr had sent him, which set out Burr's plan to move down the Mississippi in force and evidently refer to an expediiton into

66

Mexico and a new empire in the southwest in which Wilkinson shall be second to Burr only." General Wilkinson never adequately explained how he came to be in cipher correspondence with Burr on affairs of state.

After the receipt of this information, on January 22, 1807, Jefferson issued a special presidential message denouncing Burr. As soon as the news spread the whole country was at a high pitch of excitement and Burr became a fugitive from justice. Two of his emissaries, Bollman and Swartwout, who had been go-betweens to Wilkinson, were arrested for treason. (The affidavits of General Wilkinson and General Eaton, on which Bollman and Swartwout were arrested and which were attached to Jefferson's message, are set out in a note at at the end of opinion, infra.)

Bollman and Swartwout were both discharged on writs of habeas corpus before the Supreme Court of the United States. (See opinion Ex parte Bollman and Swartwout, 4 Cranch 75, and supra, page 69.) In February, 1807, a month later, Burr was arrested in Alabama, brought east, and indicted for treason in Virginia, and his case came on for trial at Richmond before Chief Justice Marshall, sitting on circuit with District Judge Cyrus Griffin.

That trial is famous. The country at large seems to have demanded the conviction of Burr. The President himself was behind the prosecution and made every effort for a conviction. So strong was the local sentiment against the prisoner that it was impossible to obtain a jury not predisposed against him. At such a trial Marshall held the scales of justice to determine whether Burr was guilty of treason, as treason was defined in the statutes and the Constitution.

The framers of the Constitution of the United States, remembering, and fearing, the doctrine of constructive treason which had proved so apt a tool of tyranny in England, had written in it: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort"; (these were almost the words of the act of 25 Edward III., chapter 2, passed to define the crime of treason); and the Constitution further provided, "No person shall be

VOL. I.-7.

convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court." The question of what constituted treason came up for the first time in the United States in the cases of Burr's two emissaries, Bollman and Swartwout, supra. In those cases the principle was squarely laid down, by Marshall and the Supreme Court, that to complete the crime of levying war against the United States there must be "an actual assemblage of men for the purpose of executing a treasonable design." In the case of Bollman and Swartwout the Court found evidence of a heinous plot, which was, perhaps, aimed against Mexico and not against the United States at all. The Court again found in the enlistment of occasional armed men only an equivocal act which was not necessarily an assemblage of men for levying war, and so not levying war. That opinion contained a further statement,-clearly obiter,-that was interpreted by the prosecution in the Burr case to mean that a meeting under arms of conspirators against the government, as such, was a levying of war within the meaning of the Constitution. That was the theory of the prosecution against Burr.

The indictment charged Burr with levying war on Blennèrhassett Island, although Burr was not present at the time that the troops were assembled. The theory of the prosecution was that inasmuch as Burr had planned the assemblage he should be regarded as present and taking part in it. Testimony was first introduced at the trial to show the levying of an armed force on. Blennerhassett Island, and then was offered to show Burr's connection with that force. The defendant objected to that testimony, and on its motion to exclude it, which went to the root of the whole question, Marshall delivered the main opinion in the The opinion, full of technicalities and at great length, is to the effect that the assemblage was not clearly a levying of war, that the connection of Burr with the overt act of levying war on Blennerhassett Island, if an overt act was proved, was not sufficiently made out to charge him as one taking part in it, and in any case was not proved by two witnesses as required by the Constitution, and further, that he could not be considered as constructively present as an accessory or otherwise, even if

case.

under such a doctrine a conviction could be reached without the previous conviction of a principal in the crime.

Marshall discussed at length the meaning of the statements in the cases of Bollman and Swartwout as to what was necessary to constitute a levying of war, and construed them as going no farther than the previous English and American decisions, and interpreted the constitutional provision as requiring some act of war, not necessarily actual violence, but some act further than plotting and gathering arms and detached levies of men. Yet that plotting and those levies were all the prosecution could prove. The decision on the motion practically threw out all the evidence that the prosecution had to offer, and left to the jury no other course but to bring in a verdict of not guilty, or, as that Virginian jury chose to phrase it, "not proved guilty."

It is significant of Marshall's power that no later commentator -the question has not been later raised in any important case— has criticised adversely the doctrines there laid down, and they are accepted law. It is notable again how closely and how strictly Marshall followed the constitutional requirements in the face of the national outcry for a conviction. Not less notable are the firmness, the dignity, and moderation with which he presided at the trial.

One point has been frequently adversely criticised in the conduct of the case. At one stage of it Marshall saw fit to issue a subpoena to President Jefferson to produce at the trial certain official documents. This Jefferson, with sufficient dignity but considerable heat, refused to do. The course of recent criticism has usually been to support Marshall in this matter of the subpoena. It is confessed that the court had no authority to enforce this command against the President, and it must be admitted that the issuing of futile orders is not conducive to the dignity of the court. And again, it seems a curious conception of the judicial function to call the head of the nation from his official duties to give testimony. The incident seems best explained as an honest mistake of judgment, and the course of recent criticism is to be attributed to the great awe of Marshall's reputation. The matter is hardly of first importance.