Shout treason

by Francis F. Beirne

Mr. MacRae charged that Wilkinson, whom he called “the savior of his country,” and who had prevented the execution of this detestable plot, had incurred the hatred and resentment of the prisoner and his associates in proportion as he deserved well of his fellow citizens. Let others question General Wilkinson’s integrity. Mr. MacRae would not do so, at least not in open court. In MacRae’s language Wilkinson was “the patriotic and meritorious officer (like those who opposed and overthrew Cataline, the Roman conspirator) who defeated this daring scheme against American liberty.” He would not be forgiven by the conspirators.

“If he [Burr] be innocent and pure as the child unborn,” sneered Mr. MacRae, “if he knew nothing of the transaction, why is it that this motion is made to exclude the evidence?”

What though the prisoner was not on Blennerhassett Island when the overt act was committed? The speaker contended that nevertheless he was guilty if anybody was guilty.

“Is there,” he asked, “any human being who having heard the evidence of General Eaton ... the evidence of the Messrs. Morgan and the evidence of the witnesses who speak of the overt act on the island, especially Jacob Allbright and Peter Taylor, who can doubt his guilt?”

Mr. MacRae professed he could not see why it should be necessary for Colonel Burr to be on the island if he enlisted the men, and sent them to the place, and acted himself in another place. Nor would he bring up the cases of Lady Lisle and Elizabeth Gaunt who had been mentioned by Mr. Wickham. Why should he? These women were accessories after the fact. But Mr. Burr had never been regarded as an accessory. He was the first mover of the plot; he planned it; he matured it; he contrived the doing of the overt acts which others did. Burr, charged MacRae, was the alpha and omega of this treasonable scheme, the very body and soul, the very life of this treason!

So, observed Mr. MacRae, Mr. Wickham had said the prosecution must prove that the accused was personally present. “No, Sir,” he objected, “it is necessary to prove that some act laid has been committed.... If the law pronounce that he is liable for the acts of his agents, and if the fact be that his agents by his commands and at his request committed the act, where is the necessity of producing proof that he was on the spot himself?”

Counsel for defense had complained of construction. “Our construction we think correct,” said Mr. MacRae, “because it is calculated to secure the rights of the citizen and to render the government permanent; whereas if the construction of the gentlemen on the other side be correct, the government cannot be permanent. Let them have the power of ubiquity. The conspirators will always contrive to avail themselves of this plea that they were not present.”

Mr. MacRae turned to the Old Testament to support his argument. He used the story of David and Uriah to illustrate it, confident that it was well known to all the members of the jury in an age when everybody read the Bible. David, he recalled, placed Uriah in the front of the battle in opposition to a very powerful opponent in order that he might be slain and that David might afterwards take his wife. If people were asked who killed Uriah, David or the antagonist by whose sword Uriah fell, the answer of all would be that—having placed him in the front of the battle in a place of the greatest danger, in immediate opposition to a man of great strength and power, with the intention that he should be killed—David killed him.

The speaker now applied the principle to the case before the court: “We suppose the prisoner, by himself and agents, to have been acting at or about the same time at Beaver, Kentucky, and Blennerhassett’s Island. We suppose that the prisoner enlisted men before he came to Beaver and at it. We suppose that afterwards his men proceeded by his orders to Blennerhassett’s Island and were there increasing their numbers by more enlistments and providing the means of transporting his troops down the river towards the scene of his expedition, while he was himself enlisting more men in Kentucky and making arrangements preparatory to his meeting and assuming the command of the whole at the mouth of the Cumberland; and that in fact, pursuant to this plan of operations, he did meet and take the command of all the conspirators at the latter place.”

Were there precedents in the law to sustain this argument? Mr. MacRae cited the case mentioned in Hale’s Pleas of the Crown of the Lord Dacre and divers others who came to steal deer in the park of one Pelham. Rayden, one of the company, killed the keeper of the park, the Lord Dacre and the rest of the company being in other parts of the park. Yet it was held that it was murder in them all and they died for it. And, said Mr. MacRae, there was American authority, too. He cited Dallas’s Reports and the case of the United States against Mitchell in the Whiskey Rebellion in which Judge Patterson’s charge to the jury showed that a man did not have to be present at the overt act.