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Mr. Randolph seems to think it very doubtful whether you ought to be bound by that authority, and that you must be very much embarrassed to have to decide it, even admitting it to be a regular judicial determination of this question; for he made a very pathetic and ...; apostrophe to the situation in which you woul be placed, if you differed from this opinion of the Supreme Court. I see no difficulty in the case, if our laws are to be uniform. How can the inferior court control the decisions of the superior court? You are but a branch of the Supreme Court. If you, sir, sitting as a circuit court, have a right to disregard the rule decided by the Supreme Court, and adopt a different rule, every other inferior court has an equal right to do the same, so that there will be as many various rules as to treason as there are courts; and the result might be, and certainly would be, that what would be treason in one circuit would not be treason in another; and a man might be hung in Pennsylvania for an act against the United States, in which he would be held perfectly innocent in Virginia. Thus treason against the United States would still be unsettled and fluctuating, and the object of the constitution, in defining it, would be disappointed and defeated; whereas a principle of law, solemnly adjudged by the Supreme Court, becomes, I apprehend, the law of the land; and all the inferior courts are compulsorily bound by it. To say that they are not, is to disorganize the whole judiciary system, to confound the distinctions and grades of the courts, to banish all certainty and stability from the law, and to destroy all uniformity of decision. I trust that we are not prepared to rush into this wild disorder and confusion, but that we shall temperately and regularly conform to the decrees of that parent court, of which this is a mere branch, until those decrees shall be changed by the same high authority which created them. But for a moment, let us relinquish that decision, and, putting it aside, let us indulge the gentleman with the inquiry, whether that decision be in conformity with the constitution of the United States, and the laws of England. In interpreting the constitution, let us apply to it the gentleman's own principles: the rules of reason and moral right. The question to be thus - determined is, whether a man, who is absent, may not be guilty as if he were actually present. That a law should be so construed as to advance the remedy and repress the mischief, is not more a rule of common law, than a principle of reason; it applies to penal as well as to remedial laws. So also the maxim of the common law, that a law as well as a covenant should be so construed that its object may rather prevail than perish, is one of the plainest dictates of common sense. Apply these principles to the constitution. Gentlemen have said, that its object was to prevent the people from being harassed by arbitrary and constructive treason. vol. II.-30

But its object, I presume, was not to declare that there was no such crime. It certainly did not mean to encourage treason. It meant to recognize the existence of the crime and provide for its punishment. The liberties of the people, which required that the offence should be defined, circumscribed and limited, required also that it should be certainly and adequately punished. The framers of the constitution, informed by the examples of Greece and Rome, and foreseeing that the liberties of this republic might one day or other be seized by the daring ambition of some domestic usurper, have given peculiar importance and solemnity to the crime, by ingrafting it upon the constitution. But they have done this in vain, if the construction, contended for on the other side, is to prevail. If it require actual presence at the scene of the assemblage to involve a man in the guilt of treason, how easy will it be for the principal traitor to avoid this guilt and escape punishment for ever! He may go into distant States, from one State to another. He may secretly wander, like a demon of darkness, from one end of the continent to the other. He may enter into the confidence of the simple and unsuspecting. He may pour his poison into the minds of those who were before innocent. He may seduce them into a love of his person, offer them advantages, pretend that his measures are honorable and beneficial, connect them in his plot and attach them to his glory. He may prepare the whole mechanism of the stupendous and destructive engine and put it in motion. Let the rest be done by his agents. He may then go a hundred miles from the scene of action. Let him keep himself only from the scene of the assemblage and the immediate spot of battle, and he is innocent in law, while those whom he has deluded are to suffer the death of traitors! Who is the most guilty of this treason, the poor, weak, deluded instruments, or the artful and ambitious man who corrupted and misled them? There is no comparison between his guilt and theirs; and yet you secure impunity to him, while they are to suffer death! Is this according to the rules of reason 3 Is this moral right? Is this a means of preventing treason ? Or rather, is it not in truth a direct invitation to it? Sir, it is obvious, that neither reason nor moral rights require actual presence at the overt act to constitute the crime of treason. Put this case to any common man, whether the absence of a corruptor should exempt him from punishment for the crime which he has excited his deluded agents to commit; and he will instantly tell you that he deserves infinitely more severe punishment than his misguided instruments. There is a moral sense much more unerring in questions of this sort, than the frigid deductions of jurists or philosophers; and no man of a sound mind and heart, can doubt for a moment between the comparative guilt of Aaron Burr. (the prime mover of the whole mischief), and the poor men on Blannerhassett's Island, who called themselves Burr's men. In the case of murder, who is the most guilty, the ignorant, deluded perpetrator, or the abominable instigator? The decision of the Supreme Court, sir, is so far from being impracticable on the ground of reason and moral right, that it is supported by their most obvious and palpable }. Give to the constitution the construction contended for on the other side, and you might as well expunge the crime from your criminal code; nay, you had better do it, for by this construction you hold out the lure of impunity to the most dangerous men in the community, men of ambition and talents, while you loose the vengeance of the law on the comparatively innocent. If treason ought to be repressed, I ask you who is the most dangerous and the most likely to commit it—the mere instrument who applies the force, or the daring, aspiring, elevated genius who devises the whole plot, but acts behind the scenes?” I come now, sir, to the gentleman's third Fo in which he says he cannot possibly fail. t is this: “ because if the prisoner be a principal in the treason at all, he is a principal in the second degree; and his guilt being of that kind which is termed derivative, no further parol evidence can be let in to charge him, until we show a record of the conviction of the principals, in the first degree.” By this, I understand the gentleman to advance, in other terms, the common law doctrine, that when a man is rendered a principal in treason, by acts which would make him an accessory in felony, he cannot be tried before the principal in the first degree. I understand this to be the doctrine of the common law, as established by all the authorities; but when I concede this point, I insist, that it can have no effect in favor of the accused, for two reasons: first, because it is the mere creature of the common law; secondly, because, if the common law of England be our law, this position assumes what is denied, that the conduct of the prisoner, in this case, is of an accessorial nature, or such as would make him an accessory in felony. First. Because this position is the mere creature of the common law. If it be so, no consequence can be deduced from it. It is sufficient, on this branch of the subject, to take his own declaration, that the common law does not exist in this country. If we examine the constitution and the act of Congress, we shall find that this idea of a distinction between principals in the first and second degree, depends entirely upon the common law. Neither the constitution nor the act of Congress knows any such distinction. All who levy war against the United States, whether present or absent—all who are leagued in the conspiracy, whether on the spot of the assemblage or performing some minute and inconsiderable part in it, a thousand

* The rest of the argument on this point is omitted, as well as the entire argument on the second point.

miles from the scene of action, incur equally the sentence of the law; they are all equally traitors. This scale, therefore, which graduates the guilt of the offenders and establishes the order of their respective trials, if it ever existed here, is completely abrogated by the highest authorities in this country. The convention which formed the constitution and defined treason, Congress which legislated on that subject, and the supreme judiciary of the country expounding the constitution and the law, have united in its abrogation. But let us for a moment put the convention, Congress and judiciary aside, and examine how the case will stand. Still this scale of moral guilt, which Mr. Wickham has given us, is the creature of the common law, which, as already observed, he himself in another branch of his argument, has emphatically told us does not exist in this country. He has stated that the creature presupposes the creator, and that where the creator does not exist, the creature cannot. The common law, then, being the creator of the rule which Mr. Wickham has given us, and that common law not existing in this country, neither can the rule, which is the mere creature of it, exist in this country. So that the gentleman has himself furnished the argument which refutes this infallible point of his, on which he has so much relied. But to try this position to its utmost extent, let us not only put aside the constitution and act of Congress, and decision of the Supreme Court, but let us admit that the common law does existhere. Still, before the principle could apply, it would remain to be proven, that the conduct of the prisoner, in this case, has been accessorial; or, in other words, that his acts in relation to this treason, are of such a nature as would make him an accessory in felony. But is this the case? It is a mere “petitio principii.” It is denied that his acts are such as would make him an accessory in felony. I have already, in another branch of this subject, endeavored to show, on the grounds of authority and reason, that a man might be involved in the guilt of treason as a principal, by being legally though not actually present; that treason occupied a much wider space than felony; that the scale of proximity between the accessory and principal must be extended in proportion to the extent of the theatre of the treason; and that as the prisoner must be considered as legally present, he could not be an accessory but a principal. If I have succeeded in this, I have in fact proved that his conduct cannot be deemed accessorial. But an error has taken place from considering the scene of the overt act as the theatre of the treason, from mistaking the overt act of the treason itself, and consequently from referring the conduct of the prisoner to the acts on the island. The conduct of Aaron Burr has been considered in relation to the overt act on Blannerhassett's island only ; whereas it ought to be considered in connection with the grand design, the deep plot of seizing Orleans, separating the Union, and establishing an independent empire in the west, of which the prisoner was to be the chief. It ought to be recollected that these were his objects, and that the whole western country, from Beaver to Orleans, was the theatre of his treasonable operations. It is by this first reasoning that you are to consider whether he be a principal or an accessory, and not by limiting your inquiries to the circumscribed and narrow spot in the island where the acts charged happened to be performed. Having shown, I think, on the ground of law, that the prisoner cannot be considered as an accessory, let me press the inquiry, whether on the ground of reason he be a principal or accessory; and remember that his project was to seize New Orleans, separate the Union, and erect an independent empire in the west, of which he was to be the chief. This was the destination of the plot and the conclusion of the drama. Will any man say that Blannerhassett was the principal, and Burr but an accessory? Who will believe that Burr, the author and projector of the plot, who raised the forces, who enlisted the men, and who procured the funds for carrying it into execution, was made a cat's-paw off Will any man believe that Burr, who is a soldier, bold, ardent, restless and aspiring, the great actor whose brain conceived, and whose hand brought the plot into operation, that he should sink down into an accessory, and that Blannerhassett should be elevated into a principal? He would startle at once at the thought. Aaron Burr, the contriver of the whole conspiracy, to every body concerned in it was as the sun to the planets which surround him. Did he not bind them in their respective orbits and give them their light, their heat and their motion ? Yet he is to be considered an accessory, and Blannerhassett is to be the principall Let us put the case between Burr and Blannerhassett. Let us compare the two men and settle this question of precedence between them. It may save a good deal of troublesome cere\mony hereafter. Who Aaron Burr is, we have seen in part already. I will add, that beginning his operations in New York, he associates with him men whose wealth is to supply the necessary funds. Possessed of the mainspring, his personal labor contrives all the machinery. Pervading the continent from New York to New Orleans, he draws into his plan, by every allurement which he can contrive, men of all ranks and descriptions. To youthful ardor he presents danger and glory; to ambition, rank and titles and honors; to avarice the mines of Mexico. To each person whom he addresses he presents the object adapted to his taste. His recruiting officers are appointed. Men are engaged throughout the continent. Civil life is indeed quiet upon its surface, but in its bosom this man has contrived to deposit the materials which, with the slightest touch of his match, produce an explosion to shake the continent. All this his restless ambition has contrived; and in the au

tumn of 1806 he goes forth for the last time to apply this match. On this occasion he meets with Blannerhassett. Who is Blannerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in o His history shows that war is not the naturas 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. Blannerhassett's character, o: 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 Ob o, 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 Blannerhassett, found but little difficulty in changing the native character J . of that heart and the objects of its .../ 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 ardor 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 wintry 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 1 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 Blannerhassett in fortune, character and happiness, for ever, let him not attempt to finish the tragedy by thrusting that ill-fated man between himself and punishment. Upon the whole, sir, reason declares Aaron Burr the principal in this crime, and confirms herein the sentence of the law; and the gentleman, in saying that his offence is of a derivative and accessorial nature, begs the question, and draws his conclusions from what, instead of being conceded, is denied. It is clear from what has been said, that Burr did not derive his guilt from the men on the island, but imparted his own guilt to them; that he is not an accessory, but a principal; and, therefore, that there is nothing in the objection which demands a record of their conviction before we shall go on with our proof against him. But suppose you should think otherwise, supose you were of opinion, that on principles of aw and reason, (notwithstanding the seeming

injustice and inhumanity of considering him as inferior in guilt to them,) Aaron Burr was not a principal, but an accessorial offender in the treason; would you, for that reason, stop the evidence from going to the jury 7 Now, to inquire whether the conduct of Aaron Burr make him liable as a principal or accessory, is only arguing in a different shape the whole question, whether he have committed an overt act of war or not. The jury are to consult and decide whether he be a principal offender or not. Whether he be a principal or accessory is a question of fact, which they are sworn to decide. The court must judge of the weight of evidence, before it can say that the accused is either a principal or accessory. Suppose one part of the evidence contradicts another. Is it not judging of the weight of evidence to decide whether he be a principal or accessory : If it be not, I know not what judging of the weight of evidence is. Nothing is more peculiar within the exclusive province of the jury than the sufficiency or insufficiency of the evidence. But the court never says that the evidence is or is not sufficient to prove what it is intended to establish. . No court has such right. The course in such cases, is to give instructions in a general charge to the jury, after all the evidence shall have been heard. Will you, because of your impressions on this subject, from a merely partial view of the evidence, compel the jury also to decide on that necessarily partial view? If you do, do you not thereby divest the jury of their peculiar functions? Their province should not be invaded. The invasion is big with danger and terror. I trust that you will see this subject in the awful light in which it really stands, and that you will suffer the trial to take its natural course. Mr. Martin has referred you to a number of cases from Cooper and other authors, but they do not prove the position intended. The court, in all these cases, leaves the jury to decide on the overt act. You will find those cases to amount simply to this: a dialogue between the court and the counsel of the prisoner, as to the overt act. The court was required to say, whether the overt act were proved or not. There was no judicial determination. The judge merely told his opinion; but he told the jury at the same time, that the decision belonged to them and not to him. There is a wide difference between criminal and civil cases; and as it is of much more importance to preserve the trial by jury in the former, to protect the lives of the people against unjust persecutions, than in mere civil suits, to preserve the rights of property, the constitution has secured that trial in all criminal prosecutions. Should the court interfere for the purpose of stopping the evidence, and to wrest the cause from the jury, in favor of the accused, would there not be a reciprocal right? If it can interfere to save the prisoner, can they not interfere equally against him 7 A thing unprecedented in the annals of jurisprudence. Have the counsel, on either side, a right to call on the other side, to state all their evidence, before it be introduced, and then to address the court without hearing it, if they think they have a better

the jury, or the jury for the court, at pleasure; to address the court on facts, or the jury on points of law 7 Such an attempt would not be a greater encroachment on the right of the proper tribunal, than the present motion is on

chance before the court than the jury Has the rights of the jury.*

either party a right to substitute the court for

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THE CHEROKEE CASE.

The following is an extract from Mr. Wirt's comparatively few. The great majority of the

argument before the Supreme Court of the United States, on a motion for an injunction to prevent the execution of certain acts of the legislature of Georgia, in the territory of the Cherokee nation of Indians, on behalf of the Cherokee nation.*

SIR, I have presented to you all the views that have occurred to me as bearing materially on this question. I have endeavored to satisfy you that, according to the supreme law of the land, you have before you proper parties and a proper case to found your original jurisdiction: that the case is one which warrants and most imperiously demands an injunction; and unless its aspect be altered by an answer and evidence, —which I confidently believe it cannot be—that if ever there was a case which called for a decree of perpetual peace, this is the case.

It is with no ordinary feelings that I am about to take leave of this cause. The existence of this remnant of a once great and mighty nation is at stake; and it is for your honors to say whether they shall be blotted out from the creation, in utter disregard of all our treaties. They are here in the last extremity, and with them must perish for ever the honor of the American name. The faith of our nation is fatally linked with their existence, and the blow which destroys them quenches for ever our own glory: for what glory can there be, of which a patriot can be proud, after the good name of his country shall have departed We may gather laurels on the field and trophies on the ocean, but they will never hide this foul blot upon our escutcheon. “Remember the Cherokee nation,” will be answer enough to the proudest boasts that we can ever make—answer enough to cover with confusion the face and the heart of every man among us, in whose bosom the last spark of grace has not been extinguished. Such, it is possible, there may be who are willing to glory in their own shame, and to triumph in the disgrace which they are permitted to heap upon this nation. But, thank Heaven! they are

American people see this subject in its true light. They so hearts of flesh in their bosoms, instead of hearts of stone; and every rising and setting sun witnesses the smoke of the incense from the thousands and tens of thousands of domestic altars, ascending to the throne of grace to invoke its guidance and blessing on your councils. The most undoubting confidence is reposed in this tribunal. We know that whatever can be properly done for this unfortunate people will be done by this honorable court. Their cause is one that must come to every honest and feeling heart. They have been true and faithful to us, and have a right to expect a corresponding fidelity on our part. . Through a long course of years, they have followed our counsel with the docility of children. Our wish has been their law. We asked them to become civilized, and they became so. They assumed our dress, copied our names, pursued our course of education, adopted our form of government, embraced our religion, and have been proud to imitate us in every thing in their power. They have watched the progress of our prosperity with the strongest interest, and have marked the rising grandeur of our nation with as much interest as if they had belonged to us. They have even adopted our resentments, and in our war with the Seminole tribes they voluntarily joined our arms, and gave effectual aid in driving back those barbarians from the very State that now oppresses them. They threw upon the field in that war a body of men, who proved, by their martial bearing, their descent from the noble race that were once the lords of these extensive forests— men worthy to associate with the “lion” who, in their own language, “walks upon the mountain-tops.”f They fought, side by side, with our present Chief Magistrate, and received his repeated thanks for their gallantry and conduct. May it please your honors, they have refused to us no gratification which it has been in their power to grant. We asked them for a portion of their lands, and they ceded it. We asked

*See the Memoirs of the Life of William Wirt, AttorneyGeneral of the United States, by John P. Kennedy: vol 2. pp. 330–343.

* The remainder of Mr. Wirt's speech, in which he replied to Mr. Wickham's fourth objection to the admission of further evidence on the part of the prosecution, is omitted.

t The Indian designation of their chieftain Ridge.

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