The Life of John Marshall Volume III Part 75

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 a.s.semblage, 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 a.s.semble with the mult.i.tude 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 a.s.sembling among others and thus levying war, may be satisfied with the proof that he caused the a.s.semblage. What effect will this law have upon this case?

The guilt of the accused, if there be any guilt, does not consist in the a.s.semblage; for he was not a member of it. The simple fact of a.s.semblage no more affects one absent man than another.

His guilt then consists in procuring the a.s.semblage, and upon this fact depends his criminality. The proof relative to the character of an a.s.semblage must be the same whether a man be present or absent. In general, to charge any individual with the guilt of an a.s.semblage, the fact of his presence must be proved: it const.i.tutes an essential part of the overt act.

If then the procurement be subst.i.tuted in the place of presence, does it not also const.i.tute 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 a.s.semblage his guilt, and in the other case the procurement by the individual make the guilt of the a.s.semblage 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 partic.i.p.ate in the guilt of the a.s.semblage 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 const.i.tution 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 const.i.tution 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 a.s.sembly, 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 const.i.tution requires two.

The more correct inference from this circ.u.mstance would seem to be, that the advising of the fact is not within the const.i.tutional 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 const.i.tution 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 princ.i.p.al, and to make the act of the princ.i.p.al 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 const.i.tution....

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 const.i.tutional definition of treason comprehends him who advises or procures an a.s.semblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the a.s.semblage.

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 advis.e.m.e.nt 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 princ.i.p.al 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 const.i.tution, no man can be convicted for the procurement under an indictment charging him with actually a.s.sembling, 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.

WORKS CITED IN THIS VOLUME

WORKS CITED IN THIS VOLUME

_The material given in parentheses and following certain t.i.tles indicates the form in which those t.i.tles have been cited in the footnotes._

_Acts and Laws._ _See_ United States Statutes.

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