struction. The terms are plain, Constructive presence is neither expressed. nor necessary to be implied. It was never thought of. But I will answer to the gentleman's question, what the members of the convention would have said, that, rather than that it was a "casus omissus," it was not intended to punish such offences. If it be asked why it was not mentioned, it may be answered, because it was not intended to be considered as guilt. But without adopting this exposition, it may be said that it was left to the future care of the legislature to enact laws on the subject and punish acts of accessorial agency. So that nothing should be referred to the imagination. When laws should take place, they would be understood in the plain and natural sense of the terms employed to express them.

Mr. Hay and Mr. Wirt have availed themselves of a learned description of the statute of the United States and the effect of its different clauses in order to shew the responsibility as principal traitors of persons standing in the situation of the accused; and that it is impossible that it could ever have been intended that they should escape unpunished. The legislature may pass laws at any time to prevent their impunity; but if they were to escape by legislative failure or want of power, it would be better than that this court should transcend its authority and construe that to be treason which is not so within the true meaning of the constitution; which it would do, if it were to consider colonel Burr as present and an actor.

Both Mr. Hay and Mr. Wirt allege that he ought not to be considered as an accessory; that he is the prime mover and projector; and therefore he ought not to escape punishment. If he escape, is it not because the law declares that he ought to escape? Ought they to complain, if the law pronounce him to be innocent? Is the acquittal of the accused in a capital case matter of regret? Ought any man to be punished but according to law?

By what rule then shall this question be decided? By example? Washington himself was assailed many years before he died. Jefferson has been also assailed; and Robertson, whose character was above censure, was also assailed. His history was assailed; but he left it to mankind to judge for him; and posterity will do him justice, (see his letter to Gibbon). And many other great and eminent characters have been in like manner assailed. So that neither virtue nor talents can secure from censure and obloquy.

By prudence? What would prudence accomplish? Criticism is severe and unjust every where; and many from mere motives of indolence are indisposed to inquire: some from party spirit, malignity in general, and particular enmity. Every thing, even what had no affinity to the subject, would have been raked up, that could injure colonel Burr.

By the effect? Assertion is nothing. Testimony complete and

satisfactory is not to be collected. What would have been the effect of the affidavits published against him in the public prints, though taken ex parte? If believed for a moment he ought not to have attended to them. The facility of denying that such a partial examination of witnesses ought to be considered an acquittal would have rendered his efforts unavailing.

By communicating his answer to their suspicions, to men in office? Nothing would have led them to listen to him but curiosity. Government ought not to be answered till it call. All the protestations of innocence on earth would have had no effect. They would have been as unavailing as in a case of murder; but on every proper occasion, Burr did communicate and answer every call.

By imparting to confidential friends? It will be shewn that he has done this always. After he had done it, they assailed him worse. If arguments like these prevail, do not use a cobweb veil; but give an air of magnanimity to your conduct by avowing a resolve to condemn and save trouble. Choose to be a Robespierre or a jury of Stuarts. If he make such communications, he is violently assailed. If he be silent, he is charged with mysterious couduct. It is true that by the law of England, all persons concerned, principal and accessories, are equally punishable. As Mr. Hay says, the crime covers the whole ground; what is not occupied by the one is held by the other. What then? Does he mean to say that because it is not so here, because the whole ground is not covered here, you must stretch the law sufficiently to cover it? Is this his plan for supplying omitted cases? Suppose an act merely preparatory, as writing a letter to advise or deputing an agent to encourage by a person who had never carried arms nor been at Blannerhassett's nor joined them at the mouth of Cumberland or any other place, could he be indicted as a principal who had carried arms and levied war? However unlawful such an act might be, it certainly could not amount to levying war. What the law would be on such occasion, I will not venture to say; but I ask, where is the book that declares it to be an act of levying war? Compare that part which you consider as authority, with that case, or that now before the court, and you will find that neither case would be treason of levying war. Though a person, who forms a scheme and conducts it to maturity and is at the head of his party, may be considered as a principal, yet he who only performs a mere preparatory act, as writing a letter, giving an advice relative to the acts at Blannerhassett's island, cannot be deemed guilty of levying war. He cannot have levied war, when he has done nothing more than to advise. To advise treason, when the treason is not actually begun, cannot be considered more than as an accessorial act. Is there not a plain difference between these two cases?

The man, who instigates another to murder a man, is considered only as an accessory; because not in a situation to afford immediate assistance to the person who perpetrates the act. If you apply this reasoning to colonel Burr, as he was at a great distance and could not give immediate aid to the actors, the the same conclusion must result: that he could not be considered in any other light than that of an accessory before the fact. The gentleman says that Bonaparte was not present at the battle of Austerlitz. We know that he commanded the army; that he was on the ground; that he directed its movements and laid the plan of the battle, as much as if he had been in the heat of the action. He was present and the principal actor. When you consider this case according to the English decisions, you can never believe that Mr. Burr can be considered as being at Blannerhassett's island.

But we are told that he is not said to be at Blannerhassett's island; that he is not alleged to have been there. The indictment charges him with having committed treason on Blannerhassett's island with a great multitude of persons traitorously assembled and gathered together, armed and arrayed in a warlike manner; that he and those persons joined together at Blannerhassett's island; and that he did with them, then and there, ordain, prepare and levy war against the United States. Is not this a declaration that he was present? Could he have joined them there without being present with them? You must understand most clearly, from the terms of the indictment, that he was actually there. It admits of no other construction. But sir, the American decisions have been quoted upon this point. It is said that the opinion of the supreme court in the case of Bollman and Swartwout was that any person, "who performs any part however minute and however remote from the scene of action, and who is leagued in the general conspiracy, shall be considered as a traitor." The import of these words, "perform any part how. ever minute or however remote from the scene of action," as meant by the supreme court, has certainly been misunderstood by gentlemen. Does the opinion of the supreme court mean by these words," minute and remote part," that a party may be indicted as present, who was absent? or that he who did not act, but merely advised, shall be indicted as having actually performed a part? The language of that court does not warrant the inference that the indictment may be so drawn as to mislead, instead of giving the accused notice of the proof to be exhibited against him, that he may prepare his defence. Does it mean that a person at the distance of five hundred miles shall be considered as present? Does it mean that they shall be punished according to the degree of their guilt? Does it mean to say that persons in the character of accessories VOL. II. 3 D

shall be punished? Does it mean to say that there are no accessories in treason, and that all are principals? What then is the meaning of the opinion? It must be this: by "remote from the scene of action" must be intended that any person, directly and indissolubly connected with the party perpetrating the act, though not at the spot, but near enough to give immediate aid at the time and place if necessary, is to be considered as engaged in the plot and guilty of treason. The judges viewed this subject without considering the question whether a man could be a principal notwithstanding his absence. Such an idea never occurred. The constitution ought to be construed according to the plain and obvious import of its words. It will be in danger if there should be a departure from this construction. It never can be supposed that its framers intended that this fancy and imagination should be indulged in its future exposition.

But say gentlemen, whether he be an accessory or a principal, the indictment stands right. I deny it sir. We have the soundest reasons to say that it cannot be supported in either case. Regarding him as a principal, the evidence cannot support it; and as it does not charge him as an accessory, no evidence of accessorial acts could prove it. The specification of the offence, according to the evidence to be brought to support it, has been always held necessary in England, and will never be deemed less useful by the people of this country. Are we to regard British forms and precedents? You have seen what they are. There have been several quotations from Hale and others on this point. But one quotation from 1 Hale p. 238. would establish my position, were it properly understood, though it is relied on by them to shew that an accessory before the fact may be indicted generally or specially. This authority shews that an accessory after the fact must be specially charged; that the indictment against the receiver of a traitor "must be special of the receipt." But they contend, that the accessory before the fact may be generally charged from these subsequent words, "and not generally that he did the thing, which may be otherwise, in case of one that is a procurer, counsellor or consenter." He refers to Conier's case as well as to Arden's case, in support of the principle, that receivers of traitors must be specially charged. But he refers to no authority as to an accessory before the fact. Authorities were read yesterday to shew that indictments for receiving and procuring must stand on the same footing. Mr. Martin having so fully explained them, it will be sufficient for me to observe what may have escaped his notice. The words on which they found their argument are "which may be otherwise in case of one that is a procurer." &c. Can this passage be absurd enough to mean that though a receiver shall be specially indicted, so as to be informed of the charge to be proved against him, yet a procurer, whose offence is more heinous, is not to be notified of the accusation

against him, but may be surprised by a general charge? He does not shew in what manner it is to be otherwise; nor that it shall be, but that it may be otherwise. That he intended to speak of indictments for compassing the death of the king is unquestionable. It has been already sufficiently shewn that such indictments charge the compassing or imagining the death of the king in general terms; and that almost any thing evincing an intention to kill him or to subvert his government, is sufficient to support such a general accusation.

The case in Kelyng, before referred to, supports our construction; and Hale, in the place just quoted, adds that if the receiv er were to be indicted in the same indictment with the principal offender, he ought to be " indicted specially of the receipt." And in the 2d vol. p. 223. heretofore quoted, he sufficiently shews that the procurer ought also to be specially charged. Sir, is it not necessary to inquire what is the consequence of the conduct of colonel Burr? If it be accessorial, the indictment must shew the quomodo." Why is any indictment in any case necessary? Why must indictments distinguish between principal actors in treason and those who are but accessorial agents? Because it informs them of the nature of the accusation and enables them to defend themselves. The indictment against the adviser or procurer ought to notify him of the act of which he is considered the indirect perpetrator. You must shew the manner in which he is liable.

Nor does this doctrine rest on English authority alone. It is not merely founded on the common law, as has been urged. It is supported by the principles of pleading, which we have adopted. The forms of pleading shew the sense of courts, as guides to reason. The eighth amendment of the constitution also requires it. It not only secures the enjoyment "of a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed," but also that the accused" shall be informed of the nature and cause of the accusation, confronted with the witnesses against him," &c.

Consider this subject attentively. Reflect on the mode of prosecution which is advocated, and see whether it do not deprive us of this constitutional privilege. The language of any man, addressed to the accused on this subject, would be, "you are charged with treason; but you are to be informed of the nature and cause of the accusation, so as to enable you to prepare your defence." The indictment is shewn him. It tells him that he actually levied war by raising men and committing acts on a particular day and at a particular place. Knowing his innocence of the charge, he pleads not guilty and produces testimony to prove that he was not there; that during the whole time he was many hundred miles distant, or perhaps beyond sea. Against all this, when he comes to be