The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

It is therefore necessary to inquire whether in this case the doctrine of constructive presence can apply.

It is conceived by the court to be possible that a person may be concerned in a treasonable conspiracy and yet be legally, as well as actually absent while some one act of the treason is perpetrated. If a rebellion should be so extensive as to spread through every state in the union, it will scarcely be contended that every individual concerned in it is legally present at every overt act committed in the course of that rebellion. It would be a very violent presumption indeed, … to presume that even the chief of the rebel army was legally present at every such overt act.

If the main rebel army, with the chief at its head, should be prosecuting war at one extremity of our territory, say in New-Hampshire – if this chief should be there captured and sent to the other extremity for the purpose of trial – if his indictment instead of alleging an overt act, which was true in point of fact, should allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia at a time when in reality he was fighting a battle in New-Hampshire – if such evidence would support such an indictment by the fiction that he was legally present though really absent, all would ask to what purpose are those provisions in the constitution, which direct the place of trial and ordain that the accused shall be informed of the nature and cause of the accusation?

But that a man may be legally absent, who has counselled or procured a treasonable act, is proved by all those books which treat upon the subject; and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in treason all are principals. Yet the indictment, speaking upon general principles, would charge him according to the truth of the case…

If the conspirator had done nothing which amounted to levying of war, and if by our constitution the doctrine that an accessory becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to say that this defect, if it be termed one, may be cured by an indictment stating the case untruly.

In point of law then, the man, who incites, aids, or procures a treasonable act, is not merely in consequence of that incitement, aid or procurement, legally present when that act is committed.

If it do not result, from the nature of the crime, that all who are concerned in it are legally present at every overt act, then each case depends upon its own circumstances; and to judge how far the circumstances of any case can make him legally present, who is in fact absent, the doctrine of constructive presence must be examined.

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 as 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 the 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…

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 coöperate 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 coöperation 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 which 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.

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 it to be directly charged that the prisoner did assemble with the multitude 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 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 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 procurement 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 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 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 connected 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 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 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…

The 8th amendment to the constitution 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 principal, and to make the act of the principal 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 constitution…

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 constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage.

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 advisement 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 principal 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 constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling, whatever may be the doctrine of the common law in the case of an accessorial offender.1518

WORKS CITED IN THIS VOLUME

The material given in parentheses and following certain titles indicates the form in which those titles have been cited in the footnotes

Acts and Laws. See United States Statutes.

Adams, Henry. History of the United States of America. 9 vols. New York. 1889-1911. (Adams: U.S.)

– John Randolph. Boston. 1892. [American Statesmen series.] (Adams: Randolph.)

– Life of Albert Gallatin. Philadelphia. 1879. (Adams: Gallatin.)

Adams, Henry, editor. Documents relating to New-England Federalism, 1800-1815. Boston. 1877. (N.E. Federalism: Adams.)

Adams, John. See Old Family Letters.

Adams, John Quincy. Memoirs. Edited by Charles Francis Adams. 12 vols. Philadelphia. 1874-77. (Memoirs, J. Q. A.: Adams.)

– Writings. Edited by Worthington Chauncey Ford. 5 vols. New York. 1913-15. (Writings, J. Q. A.: Ford.)

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American Law Review. Vol. i, 1867; Boston. Vols. xix, xxix, xlvi, 1885, 1895, 1912; St. Louis. (Am. Law Rev.)

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Beard, Charles Austin. Economic Origins of Jeffersonian Democracy. New York. 1915. (Beard: Econ. Origins Jeff. Dem.)

– Supreme Court and the Constitution. New York. 1912.

Beveridge, Albert Jeremiah. Life of John Marshall. 4 vols. Boston. 1916-19.

Biddle, Alexander. See Old Family Letters.

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Brady, Joseph Plunkett. Trial of Aaron Burr. New York. 1913.

Brockenbrough, William, and Holmes, Hugh. Collection of Cases decided by the General Court of Virginia, chiefly relating to the penal laws of the Commonwealth, commencing in the year 1789 and ending in 1814. [Also known as the first volume of Virginia Cases.] Philadelphia. 1815. (Va. Cases.)

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– Trials, for Treason and for a Misdemeanor. Reported by David Robertson, stenographer. 2 vols. Philadelphia. 1808. (Burr Trials.)

And see Brady, Joseph Plunkett; Davis, Matthew Livingston; Jenkinson, Isaac; McCaleb, Walter Flavius; Parton, James.

Cabot, George. See Lodge, Henry Cabot.

Call, Daniel. Reports of Cases argued and decided in the Court of Appeals of Virginia. Vol. iv. Richmond. 1833. (Call.)

Carson, Hampton Lawrence. Supreme Court of the United States: Its History. 2 vols. Philadelphia. 1891. (Carson.)

Chandler, Peleg Whitman. American Criminal Trials. 2 vols. Boston. 1844.

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– Jeffersonian System, 1801-11. [Vol. 12 of "The American Nation, a History," edited by Albert Bushnell Hart.] New York and London. 1906. (Channing: Jeff. System.)

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Clark, Daniel. Proofs of the Corruption of Gen. James Wilkinson and of his Connexion with Aaron Burr. Philadelphia. 1809. (Clark: Proofs.)

Clark, Joshua Victor Hopkins. Onondaga; or Reminiscences of Earlier and Later Times; being a Series of Historical Sketches relative to Onondaga; with Notes on the Several Towns in the County, and Oswego. 2 vols. Syracuse. 1849. (Clark: Onondaga.)

Clay, Henry. Private Correspondence. Edited by Calvin Colton. New York. 1855. (Priv. Corres.: Colton.)

– Works. Edited by Calvin Colton. 7 vols. New York. 1897. (Works: Colton.)

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Colton, Calvin, editor. See Clay, Henry. Private Correspondence, and Works.

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Corwin, Edward Samuel. Doctrine of Judicial Review – Its Legal and Historical Basis and other Essays. Princeton. 1914. (Corwin.)

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Cranch, William. Reports of Cases argued and adjudged in the Supreme Court of the United States, 1801-08. 6 vols. New York. 1812.

– Same February term, 1810. Vol. vi. New York. 1812.

Also Cases argued and decided in the Supreme Court of the United States and others. [Lawyers' edition.] 1, 2, 3, 4 Cranch, Book ii. 5, 6, 7, 8, 9 Cranch, Book iii. Edited and annotated by Stephen K. Williams and Walter Malins Rose. Rochester. 1901. (Cranch.)

Cutler, William Parker, and Julia Perkins. Life, Journals, and Correspondence of Menasseh Cutler. 2 vols. Cincinnati. 1888. (Cutler.)

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Also Cases argued and decided in the Supreme Court of the United States and others. [Lawyers' edition.] 1, 2, 3, 4 Dallas, Book i. Edited and annotated by Stephen K. Williams and Walter Malins Rose. Rochester. 1901. (Dallas.)

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Debate in the House of Representatives of the Territory of Orleans, on a Memorial to Congress, respecting the illegal conduct of General Wilkinson. New Orleans. 1807.

Debates in the Several State Conventions. See Elliot, Jonathan.

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