Chapter XXXII: Appendix: F

ESSENTIAL PART OF MARSHALL'S OPINION ON CONSTRUCTIVE TREASON DELIVERED AT THE TRIAL OF AARON BURR, ON MONDAY, AUGUST 31, 1807[1519]

The place in which a crime was committed is essential to an indictment, were it only to shew the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence.... This necessity is rendered the stronger by the constitutional provision that the offender "shall be tried in the state and district wherein the crime shall have been committed," and by the act of congress which requires that twelve petty jurors at least shall be summoned from the county where the offence was committed.

A description of the particular manner in which the war was levied seems also essential to enable the accused to make his defence. The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation and the circumstances which will be adduced against him.

* * * * *

Treason can only be established by the proof of overt acts; and ... those overt acts only which are changed in the indictment can be given in evidence, unless perhaps as corroborative testimony after the overt acts are proved. That clause in the constitution too which says that in all criminal prosecutions the accused shall enjoy the right "to be informed of the nature and cause of the accusation" is considered as having a direct bearing on this point. It secures to him such information as will enable him to prepare for his defence.

It seems then to be perfectly clear that it would not be sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified by laying what is termed an overt act of levying war....

If it be necessary to specify the charge in the indictment, it would seem to follow, irresistibly, that the charge must be proved as laid.... Might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to the accused. It would lead him from the true cause and nature of the accusation instead of informing him respecting it.

But it is contended on the part of the prosecution that, although the accused had never been with the party which assembled at Blennerhassett's island, and was, at the time, at a great distance, and in a different state, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact.

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.[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 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.)

ADDISON, ALEXANDER. Trial on an Impeachment by the House of Representatives before the Senate of the Commonwealth of Pennsylvania. Reported by Thomas Lloyd, stenographer. Lancaster. 1803. (_Addison Trial._)

ALLEN, GARDNER WELD. Our Navy and the Barbary Corsairs. Boston. 1905.

ALLIBONE, SAMUEL AUSTIN. Dictionary of English Literature and British and American Authors. 3 vols. Philadelphia. 1870-71.

AMBLER, CHARLES HENRY. Thomas Ritchie--A Study in Virginia Politics. Richmond. 1913.

_American Historical Association._ Annual Report. 1896, vol. II; 1913, vol. II. Washington, D.C.

_American Historical Review._ Vol. IV-XIX, inclusive, 1899-1914. New York. (_Am. Hist. Rev._)

_American Law Review._ Vol. I, 1867; Boston. Vols. XIX, XXIX, XLVI, 1885, 1895, 1912; St. Louis. (_Am. Law Rev._)

_American Political Science Review._ Vol. VIII, 1914; vol. IX, 1915. Baltimore. (_Am. Pol. Sci. Rev._)

_American State Papers._ Documents, Legislative and Executive, of the Congress of the United States. Selected and edited under the Authority of Congress. 38 vols. Washington. 1832-61. [Citations in this work are from "Foreign Relations" (_Am. State Papers, For. Rel._); "Miscellaneous." (_Am. State Papers, Misc._); and "Public Lands."]

AMES, FISHER. Works. Edited by Seth Ames. 2 vols. Boston. 1854. (Ames.)

ANDERSON, DICE ROBINS. William Branch Giles: A Study in the Politics of Virginia and the Nation from 1790 to 1830. Menasha [Wisconsin]. 1914. (Anderson.)

ANDERSON, JOHN E., _and_ HOBBY, WILLIAM J. Contract for the Western Territory made with the Legislature of Georgia in the year 1795, considered with a Reference to the subsequent Attempts of the State to impair its Obligation. Augusta. 1799.

ARNOLD, SAMUEL GREENE. History of the State of Rhode Island and Providence Plantations. 2 vols. New York. 1860.

_Athenæum; Journal of Literature, Science, and the Fine Arts._ (Weekly.) 1835. London.

BASSETT, JOHN SPENCER. Life of Andrew Jackson. 2 vols. New York. 1911.

BAY, ELIHU HALL. Reports of Cases argued and determined in the Superior Courts of Law in the State of South Carolina. Vols. I and II, 1809, 1811. New York.

BAYARD, JAMES ASHETON. Papers, from 1796 to 1815. Edited by Elizabeth Donnan. [Annual Report of the American Historical Association for the year 1913, vol. II.] Washington. 1915. (_Bayard Papers_: Donnan.)

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.

BISHOP, ABRAHAM. Georgia Speculation Unveiled. [Two pamphlets, in two parts each.] Hartford. 1797-98. (Bishop.)

_Blackwood's Magazine._ Vol. XVII, 1822. Edinburgh and London.

_Blennerhassett Papers, embodying the private Journal of Harman Blennerhassett._ Edited by William H. Safford. Cincinnati. 1864. (_Blennerhassett Papers_: Safford.)

BOTTA, CARLO GIUSEPPE GUGLIELMO. History of the War of the Independence of the United States of America. Translated from the Italian by George Alexander Otis. 3 vols. Philadelphia. 1820.

BOUVIER, JOHN. Law Dictionary and Concise Encyclopedia. Third Revision by Francis Rawle. 3 vols. Kansas City and St. Paul. 1914.

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.)

BRYAN, WILHELMUS BOGART. History of the National Capital from its Foundation through the Period of the Adoption of the Organic Act. 2 vols. New York. 1914-16. (Bryan.)

BURR, AARON. Private Journal: Reprinted in full from the original manuscript in the library of William Keeney Bixby of St. Louis, Missouri. 2 vols. Rochester. 1903.

---- 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.

CHANNING, EDWARD. History of the United States. Vols 1-4. New York. 1905-17. (Channing: _U.S._)

---- 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_.)

CHAPPELL, ABSALOM HARRIS. Miscellanies of Georgia, Historical, Biographical, Descriptive, etc. Atlanta. 1874. (Chappell.)

CHASE, SAMUEL. Trial, before the High Court of Impeachment, composed of the Senate of the United States, for charges exhibited against him by the House of Representatives ... for high Crimes and Misdemeanors. Reported by Charles Evans, stenographer. Baltimore. 1805. (_Chase Trial._)

CHASTELLUX, FRANÇOIS JEAN, MARQUIS DE. Travels in North America in the years 1780-81-82. New York. 1828.

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.)

CLEVELAND, CATHERINE CAROLINE. Great Revival in the West, 1797-1805. Chicago. 1916.

COLTON, CALVIN, _editor_. _See_ Clay, Henry. Private Correspondence, and Works.

CONGRESS. _See_ United States Congress.

CORWIN, EDWARD SAMUEL. Doctrine of Judicial Review--Its Legal and Historical Basis and other Essays. Princeton. 1914. (Corwin.)

COX, ISAAC JOSLIN. West Florida Controversy, 1798-1813. Baltimore. 1918. (Cox.)

COXE, BRINTON. Essay on Judicial Power and Unconstitutional Legislation, being a Commentary on Parts of the Constitution of the United States. Philadelphia. 1893.

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.)

DALLAS, ALEXANDER JAMES. Reports of Cases ruled and adjudged in the several Courts of the United States and of Pennsylvania. Vols. 2, 3, 4. Philadelphia. 1798, 1799, 1835.

_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.)

DAVIS, JOHN CHANDLER BANCROFT, _reporter_. _See_ United States Supreme Court.

DAVIS, MATTHEW LIVINGSTON. Memoirs of Aaron Burr. 2 vols. New York. 1836. (Davis.)

_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.

DILLON, JOHN FORREST, _compiler and editor_. John Marshall. Life, Character, and Judicial Services, as portrayed in the Centenary Proceedings throughout the United States in Marshall's Day. 1901. 3 vols. Chicago. 1903. (Dillon.)

DODD, WILLIAM EDWARD. Life of Nathaniel Macon. Raleigh. 1903. (Dodd.)

DONNAN, ELIZABETH, _editor_. _See_ Bayard Papers.

DOUGHERTY, JOHN HAMPDEN. Power of Federal Judiciary over Legislation. New York. 1912.

DWIGHT, NATHANIEL. Signers of the Declaration of Independence. New York. 1895. (Dwight.)

EATON, WILLIAM. Life, principally collected from his correspondence and other manuscripts. Edited by Charles Prentiss. Brookfield. 1813. (_Eaton_: Prentiss.)

ELLIOT, JONATHAN. Debates in the several State Conventions, on the Adoption of the Federal Constitution, as recommended by the General Convention at Philadelphia in 1787. 5 vols. Washington. 1836-45.

EVANS, CHARLES, _reporter_. _See_ Chase, Samuel. Trial.

FARRAND, MAX, _editor_. _See_ Records of the Federal Convention.

_Federalist, The._ Commentary on the Constitution of the United States from original text of Alexander Hamilton, John Jay, and James Madison. Edited by Henry Cabot Lodge. New York. 1895.

_First Forty Years of Washington Society._ _See_ Hunt, Gaillard.

FORD, PAUL LEICESTER, _editor_. _See_ Jefferson, Thomas. Works.

FORD, WORTHINGTON CHAUNCEY, _editor_. _See_ Adams, John Quincy. Writings.

GALLATIN, ALBERT. _See_ Adams, Henry.

GARLAND, HUGH ALFRED. Life of John Randolph of Roanoke. 2 vols. New York. 1851.

GIBBS, GEORGE, _editor_. Memoirs of the Administrations of Washington and John Adams. _See_ Wolcott, Oliver.

GILES, WILLIAM BRANCH. _See_ Anderson, Dice Robins.

GIRARD, STEPHEN. _See_ McMaster, John Bach.

_Great American Lawyers._ _See_ Lewis, William Draper.

_Green Bag: An Entertaining Magazine for Lawyers_. Edited by Horace Williams Fuller. Vol. II, 1890. Boston.

GREENE, NATHANAEL. _See_ Johnson, William.

GRIGSBY, HUGH BLAIR. History of the Virginia Federal Convention of 1788, with a Biographical Sketch of the Author and Illustrative Notes. Edited by Robert Alonzo Brock. 2 vols. [Collections of the Virginia Historical Society, new series, vols. IX and X.] Richmond. 1890-91.

---- Virginia Convention of 1829-30. Richmond. 1854.

_Gulf States Historical Magazine._ Vol. II, 1903. Montgomery [Ala.].

HAMILTON, ALEXANDER. _See_ Lodge, Henry Cabot.

HAMMOND, JABEZ DELANO. History of Political Parties in the State of New York from the Ratification of the Federal Constitution to December, 1840. Albany. 1842.

HARDEN, EDWARD JENKINS. Life of George Michael Troup. Savannah. 1859.

HARPER, ROBERT GOODLOE. Case of the Georgia Sales on the Mississippi considered with a Reference to Law Authorities and Public Acts, and an Appendix containing certain Extracts, Records, and Official Papers. Philadelphia. 1797. (Harper.)

HARRIS, JOEL CHANDLER. Georgia from the Invasion of De Soto to recent Times. New York. 1896. (Harris.)

HARRIS, THOMAS, _and_ JOHNSON, REVERDY. Reports of Cases argued and determined in the General Court and Court of Appeals of the State of Maryland from 1800 to 1805 inclusive. Vol. I. Annapolis. 1821. (Harris and Johnson.)

HASKINS, CHARLES HOMER. Yazoo Land Companies. [Reprinted from the papers of the American Historical Association for October, 1891.] New York. 1891. (Haskins.)

HAYWOOD, JOHN. Reports of Cases adjudged in the Superior Courts of Law and Equity of the State of North Carolina from the year 1789 to the year 1798. Halifax. 1799.

HENRY, WILLIAM WIRT. Patrick Henry. Life, Correspondence and Speeches. 3 vols. New York. 1891.

HILDRETH, RICHARD. History of the United States of America. 6 vols. New York. 1854-55. (Hildreth.)

_Historical and Philosophical Society of Ohio._ Quarterly Publication. Vol. IX, Nos. 1 and 2; January and April, 1914. Cincinnati. (_Quarterly Pub. Hist. and Phil. Soc. Ohio._)

HOWARD, BENJAMIN CHEW. Reports of Cases argued and adjudged in the Supreme Court of the United States, December term, 1856. Vol. XIX. Washington. 1857. (Howard.)

HOYT, WILLIAM HENRY, _editor_. _See_ Murphey, Archibald Debow.

HUDSON, FREDERIC. Journalism in the United States from 1690 to 1872. New York. 1873. (Hudson.)

HUGHES, ROBERT WILLIAM. Reports of Cases decided in the Courts of the Fourth Judicial Circuit sitting in Admiralty. Vol. V, edited by Robert Morton Hughes. New York. 1883.

HUNT, GAILLARD, _editor_. First Forty Years of Washington Society, portrayed by the Family Letters of Mrs. Samuel Harrison Smith. New York. 1906. (Hunt.)

INDIANA TERRITORY. Laws of the Indiana Territory, 1801-06 inclusive. Paoli [Indiana]. 1886.

IREDELL, JAMES. Life and Correspondence. Edited by Griffith John McRee. 2 vols. New York. 1857-58. (_Iredell_: McRee.)

IRVING, PIERRE MUNROE. Life and Letters of Washington Irving. 4 vols. New York. 1869. (Irving.)

JACKSON, ANDREW. _See_ Bassett, John Spencer; Parton, James.

JAY, JOHN. Correspondence and Public Papers. Edited by Henry Phelps Johnston. 4 vols. New York. 1890-93. [Letter-press edition.] (_Jay_: Johnston.)

JEFFERSON, THOMAS. Memoir, Correspondence, and Miscellanies. Edited by Thomas Jefferson Randolph. Charlottesville. 1829. (_Jefferson_: Randolph.)

---- Works. Edited by Paul Leicester Ford. 12 vols. New York. 1904-05. [Federal edition.] (_Works_: Ford.)

---- Writings. Edited by Henry Augustine Washington. Washington. 1853-54. (_Jefferson_: Washington.)

_See_ Parton, James; Randall, Henry Stephens.

JENKINSON, ISAAC. Aaron Burr. His Personal and Political Relations with Thomas Jefferson and Alexander Hamilton. Richmond [Indiana]. 1902. (Jenkinson.)

JOHNSON, ALLEN. Union and Democracy. Boston. 1915.

JOHNSON, WILLIAM. Sketches of the Life and Correspondence of Nathanael Greene. 2 vols. Charleston. 1822.

JOHNSTON, HENRY PHELPS, _editor_. _See_ Jay, John.

JONES, CHARLES COLCOCK, _and_ DUTCHER, SALEM. Memorial History of Augusta, Georgia. Syracuse. 1890.

KENNEDY, JOHN PENDLETON. Memoirs of the Life of William Wirt. 2 vols. Philadelphia. 1849. (Kennedy.)

KING, RUFUS. Life and Correspondence, comprising his Letters, Private and Official, his Public Documents and his Speeches. Edited by Charles Ray King. 6 vols. New York. 1894-1900. [Letterpress edition.] (King.)

KNIGHT, LUCIAN LAMAR. Georgia's Landmarks, Memorials and Legends. 2 vols. Atlanta. 1913-14.

LA ROCHEFOUCAULD-LIANCOURT, FRANÇOIS ALEXANDRE FRÉDÉRIC, DUC DE. Travels through the United States of North America. 4 vols. London. 1800. (La Rochefoucauld-Liancourt.)

LEWIS, WILLIAM DRAPER, _editor_. Great American Lawyers: A History of the Legal Profession in America. 8 vols. Philadelphia. 1907-09. (_Great American Lawyers_: Lewis.)

_Literary Magazine and American Register._ Vol. II, April to December, inclusive, 1804. Philadelphia.

LODGE, HENRY CABOT. Alexander Hamilton. Boston. 1882. [American Statesmen series.]

---- Life and Letters of George Cabot. Boston. 1877. (Lodge: _Cabot_.)

LODGE, HENRY CABOT, _editor_. _See_ Federalist.

MCCALEB, WALTER FLAVIUS. Aaron Burr Conspiracy. New York. 1903. (McCaleb.)

MCHENRY, JAMES. _See_ Steiner, Bernard Christian.

MCLAUGHLIN, ANDREW CUNNINGHAM. Courts, the Constitution and Parties. Studies in Constitutional History and Politics. Chicago. 1912. (McLaughlin.)

MACLAY, SAMUEL. Journal. Annotated by John Franklin Meginness. Williamsport. 1887. (_Maclay's Journal._)

MCMASTER, JOHN BACH. History of the People of the United States from the Revolution to the Civil War. 8 vols. New York. 1883-1914. (McMaster: _U.S._)

---- Life and Times of Stephen Girard, Merchant and Mariner. 2 vols. Philadelphia and London. 1918.

MACON, NATHANIEL. _See_ Dodd, William Edward.

MCREE, GRIFFITH JOHN, _editor_. _See_ Iredell, James.

MANUSCRIPTS:

Breckenridge, John. Library of Congress.

Dreer, Ferdinand Julius. Pennsylvania Historical Society.

Etting, Frank Marx. Pennsylvania Historical Society.

Hopkinson, Joseph. Possession of Edward P. Hopkinson, Philadelphia.

Jefferson, Thomas. Library of Congress.

Kent, James. Library of Congress.

Letters in Relation to the Burr Conspiracy. Library of Congress.
(Letters in Relation.)

Letters of the Corresponding Secretary. (Marshall to John Eliot.)
Massachusetts Historical Society.

Miscellaneous. New York Public Library.

Peters, Richard. Pennsylvania Historical Society.

Pickering, Timothy. Massachusetts Historical Society.

Plumer, William. Library of Congress. [The Plumer Papers are
listed in several divisions, as "Congress," "Diary,"
"Journal," "Letters," "Register," and "Repository."]

Records of the United States Circuit Court, Boston, Mass.

Records of the United States Circuit Court, Richmond, Va.

Wilkinson, James. Chicago Historical Society.

MARSHALL FAMILY. _See_ Paxton, William McClung.

MARSHALL, JOHN. Life of George Washington. [1st edition.] 5 vols. Philadelphia. 1805-07. (Marshall, 1st ed.)

---- Same. [2d edition.] 2 vols. Philadelphia. 1840. (Marshall, 2d ed.)

---- Same. [School edition.] Philadelphia. 1838. (Marshall, school ed.)

_And see_ Beveridge, Albert Jeremiah; Dillon, John Forrest;
Paxton, William McClung.

MARTIN, FRANÇOIS XAVIER. Notes of a few decisions in the Superior Courts of the State of North-Carolina, and in the Circuit Court of the U[nited] States, for North-Carolina District. Newbern. 1797. (Martin.)

MARTINEAU, HARRIET. Retrospect of Western Travel. 2 vols. London and New York. 1838.

_Maryland Historical Society._ Fund-Publications. No. 24, 1887. Baltimore. (_Md. Hist. Soc. Fund-Pub._)

_Massachusetts Historical Society._ Proceedings. Boston. (_Mass. Hist. Soc. Proc._)

MASSACHUSETTS. Senate Journal, 1798-99. Vol. XIX. Manuscript volume, Massachusetts State Library.

MEGINNESS, JOHN FRANKLIN, _annotator_. _See_ Maclay, Samuel. Journal.

_Messages and Papers of the Presidents, 1789-1897._ _See_ Richardson, James Daniel.

_Monthly Anthology and Boston Review_. Vol. V. 1808. Boston.

MOORE, THOMAS. Poetical Works, collected by himself, with a Memoir. 6 vols. Boston. 1856.

MORDECAI, SAMUEL. Richmond in By-Gone Days, being the Reminiscences of An Old Citizen. Richmond. 1856. (Mordecai.)

MORISON, JOHN HOPKINS. Life of the Hon. Jeremiah Smith. Boston. 1845. (Morison: _Smith_.)

MORISON, SAMUEL ELIOT. Life and Letters of Harrison Gray Otis, Federalist, 1765-1848. 2 vols. Boston. 1913. (Morison: _Otis_.)

MORRIS, GOUVERNEUR. Diary and Letters. Edited by Anne Cary Morris. 2 vols. New York. 1888. (Morris.)

MURPHEY, ARCHIBALD DEBOW. Papers. Edited by William Henry Hoyt. [Publications of the North Carolina Historical Commission.] 2 vols. Raleigh. 1914.

_New England Mississippi Land Company._ Memorial of the Agents to Congress, with a Vindication of their Title at Law annexed. Washington. 1804.

NEWSPAPERS:

Baltimore, Md.: _American_, issues of November 4, 5, 6, 1807.

Boston, Mass.: _Columbian Centinel_ issues of January 23,
February 16, March 27, 30, 1799, February 6,
17, April 2, 7, 1802. _Independent Chronicle_,
issues of February 11, 14, 18, 25, 1799, May
12, July 10, 1800, March 15, April 26, 1802,
March 10, June 30, 1803.

_J. Russell's Gazette--Commercial and Political_
(later known as the _Boston Gazette_ and the
_Boston Commercial Gazette_), issue of January
28, 1799.

_New England Palladium_, issues of March 12, 23,
1802.

Richmond, Va.: _Enquirer_, issues of April 10, 28, May 8,
November 6, 24, December 1, 4, 8, 12, 1807.

Washington, D.C.: _Federalist_, issues of February 13, 20, 22,
March 3, 1802, January 8, 1805.

_New York Review_. Vols. II and III. 1838. New York.

_New York State Library Bulletin_. Vol. IV, 1900. New York.

_North American Review_. Vol. 46, 1838; Boston. Vol. 185, 1907; New York.

_North Carolina Booklet_. Vol. XVII, 1917. Raleigh.

_Old Family Letters._ Copied from the Originals for Alexander Biddle. Series A. Philadelphia. 1892.

OTIS, HARRISON GRAY. _See_ Morison, Samuel Eliot.

PARTON, JAMES. Life and Times of Aaron Burr. New York. 1858. (Parton: _Burr_.)

---- Life of Andrew Jackson. 3 vols. New York. 1861. (Parton: _Jackson_.)

---- Life of Thomas Jefferson. Boston. 1874.

PAXTON, WILLIAM MCCLUNG. Marshall Family. Cincinnati. 1885. (Paxton.)

_Pennsylvania Bar Association._ Report of the Twenty-first Annual Meeting, 1915. Philadelphia.

PETERS, RICHARD, JR. Reports of Cases argued and adjudged in the Supreme Court of the United States, January term, 1828. Vol. I. Philadelphia. 1828. (Peters.)

PICKERING, TIMOTHY. Review of the Correspondence between the Hon. John Adams and the late William Cunningham, Esq., beginning in 1803 and ending in 1812. Salem. 1824.

PICKETT, ALBERT JAMES. History of Alabama, and incidentally of Georgia and Mississippi, from the earliest period. 2 vols. Charleston. 1851. (Pickett.)

PLUMER, WILLIAM. Life. Begun by William Plumer, Jr., completed and edited, with a sketch of the author's life, by Andrew Preston Peabody. Boston. 1857. (Plumer.)

PRENTISS, CHARLES, _editor_. _See_ Eaton, William. Life.

PRIEST, WILLIAM. Travels in the United States of America, 1793-97. London. 1802.

QUINCY, EDMUND. Life of Josiah Quincy of Massachusetts. Boston. 1867. (Quincy.)

RAMSEY, JAMES GATTYS MCGREGOR. Annals of Tennessee to the End of the Eighteenth Century. Charleston. 1853.

RANDALL, HENRY STEPHENS. Life of Thomas Jefferson. 3 vols. New York. 1858. (Randall.)

RANDOLPH, JOHN. Adams, Henry; Garland, Hugh Alfred.

RANDOLPH, THOMAS JEFFERSON, _editor_. _See_ Jefferson, Thomas.

_Records of the Federal Convention of 1787._ Edited by Max Farrand. 3 vols. New Haven. 1911. (_Records Fed. Conv._: Farrand.)

RICHARDSON, JAMES DANIEL, _compiler_. A Compilation of Messages and Papers of the Presidents, 1789-1897. 10 vols. Washington. 1896-99. (Richardson.)

RITCHIE, THOMAS. _See_ Ambler, Charles Henry.

ROBERTSON, DAVID, _reporter_. _See_ Burr, Aaron. Trials.

SAFFORD, WILLIAM HARRISON, _editor_. _See_ Blennerhassett Papers.

SCOTT, LIEUT.-GENERAL [WINFIELD]. Memoirs. Written by Himself. 2 vols. New York. 1864.

SEMPLE, ROBERT BAYLOR. History of the Rise and Progress of the Baptists in Virginia. Richmond. 1810.

SHELTON, WILLIAM HENRY. Jumel Mansion, being a Full History of the House on Harlem Heights built by Roger Morris before the Revolution, together with some Account of its more Notable Occupants. Boston. 1916.

SINGLETON, ESTHER. Story of the White House. 2 vols. New York. 1907.

SMITH, GEORGE GILLMAN. Story of Georgia and the Georgia People, 1732 to 1800. Macon. 1900. (Smith.)

SMITH, JEREMIAH. _See_ Morison, John Hopkins.

SMITH, MRS. SAMUEL HARRISON. _See_ Hunt, Gaillard.

SMITH, WILLIAM STEUBEN, _and_ OGDEN, SAMUEL GOUVERNEUR. Trials for Misdemeanors. Reported by Thomas Lloyd, stenographer. New York. 1807. (_Trials of Smith and Ogden._)

_South Carolina Historical and Genealogical Magazine._ Vol. VII, 1906. Charleston.

_Southwestern Historical Quarterly._ Vol. XVII, 1909. Austin. (_Southwestern Hist. Quarterly._)

SPARKS, JARED, _editor_. _See_ Washington, George.

_State of Facts, showing the Right of Certain Companies to the Lands lately purchased by them from the State of Georgia._ United States. 1795.

_State Trials._ Complete Collection of State Trials and Proceedings for High-Treason, and other Crimes and Misdemeanors; from the Reign of King Richard II. to the End of the Reign of King George I. [1377-1727.] 6 vols. London. 1730. (_State Trials Richard II. to George I._)

_Statutes at Large._ _See_ United States Statutes.

STEINER, BERNARD CHRISTIAN. Life and Correspondence of James McHenry. Cleveland. 1907.

STEVENS, THADDEUS. _See_ Woodburn, James Albert.

STEVENS, WILLIAM BACON. History of Georgia from its First Discovery by Europeans to the Adoption of the Present Constitution in 1798. 2 vols. Vol. I, New York, 1847. Vol. II, Philadelphia, 1859. (Stevens.)

STORY, JOSEPH. Life and Letters. Edited by William Wetmore Story. 2 vols. Boston. 1851. (Story.)

SUPREME COURT. _See_ United States Supreme Court.

THAYER, JAMES BRADLEY. Cases on Constitutional Law. 4 vols. Cambridge. 1894-95.

---- John Marshall. Boston. 1904. [Riverside Biographical Series.]

TROUP, GEORGE MICHAEL. _See_ Harden, Edward Jenkins.

TUCKER, GEORGE. Life of Thomas Jefferson. 2 vols. Philadelphia. 1837. (Tucker.)

TYLER, LYON GARDINER. Letters and Times of the Tylers. 3 vols. Richmond. 1884-96. (Tyler.)

UNITED STATES CONGRESS. Debates and Proceedings, First Congress, First Session, March 3, 1789, to Eighteenth Congress, First Session, May 27, 1824. [Known as the Annals of Congress.] 42 vols. Washington. 1834-56. (_Annals._)

---- Documents, Legislative and Executive. _See_ American State Papers.

---- History of the Last Session of Congress, which commenced on the seventh of December, 1801. [Taken from the _National Intelligencer_.] Washington. 1802. (_Hist. Last Sess. Cong, which commenced 7th Dec. 1801._)

UNITED STATES SENATE. Document No. 610. 63d Congress, 2d Session. Washington. 1914.

---- Journal of the Executive Proceedings of the Senate of the United States of America, from the Commencement of the First to the Termination of the Nineteenth Congress. 3 vols. Washington. 1828. (_Journal Exec. Proc. Senate._)

_United States Statutes at Large._ Vols. I, II, III. Boston. 1850. (_U.S. Statutes at Large._)

UNITED STATES SUPREME COURT. Cases adjudged in the Supreme Court at October term, 1883. Reported by John Chandler Bancroft Davis. Vol. III. New York and Albany. 1884.

_See also_ Cranch, William; Dallas, Alexander James; Howard,
Benjamin Chew; Peters, Richard, Jr.; Wallace, John William.

* * * * *

Transcriber's Notes:

1. Passages in italics are surrounded by _underscores_.

2. Obvious errors in spelling and punctuation have been corrected.

3. Footnotes have been renumbered and moved from the page end to the end of their respective chapters.

4. Images have been moved from the middle of a paragraph to the closest paragraph break.

5. Certain words use an oe ligature in the original.

6. Carat character (^) followed by a single letter or a set of letters in curly brackets is indicative of subscript in the original book.