SPEECH OF JOHN WICKHAM, IN THE TRIAL OF AARON BURR, FOR TREASON, IN PREPARING THE MEANS OF A MILITARY EXPEDITION IN THE CIRCUIT COURT OF THE UNITED STATES, FOR THE Mr. Wickham for the defendant, in support of a motion to arrest the evidence. MAY IT PLEASE THE COURT, THE Counsel for the prosecution having gone through their evidence relating directly to the overt act charged in the indictment, and being about to introduce collateral testimony of acts done beyond the limits of the jurisdiction of this court, and it not only appearing from the proofs, but being distinctly admitted, that the accused, at the period when war is said to have been levied against the United States, was hundreds of miles distant from the scene of action, it becomes the duty of his counsel, to object to the introduction of any such testimony; as, according to our view of the law on this subject, it is wholly irrelevant and inadmissible. It is not without reluctance that this measure is resorted to. Our client is willing and desirous, that at a proper time, and on a fit occasion, the real nature of the transactions, which have been magnified into the crime of treason, should be fully disclosed; and unless he be greatly mistaken, it is now in his power to ad duce strong and conclusive testimony, in direct opposition to that which has been relied on in behalf of the prosecution. But if we may calculate from the time that has been already consumed, in the examination of the small number of witnesses, that have yet been introduced, out of about one hundred and forty, that have been summoned on the part of the United States, it is hardly possible, that an opportunity will be afforded him of calling a single witness before this jury. Weeks, perhaps months, will pass away, before the evidence for the United States is closed; and at this unfavorable season, nothing is more likely than that the health of some one, and, perhaps, more of the jury, will be so far affected, by the climate and confinement, as to render it impossible to proceed with the trial. Should such an event happen, the cause must lie over, and our client, innocent, as we have a right to suppose him, may be subjected to a prolongation of that confinement, which is, in itself, a severe punishment. The jury, too, are placed under very unpleasant restraints, and it would be an act of injustice to them, as well as him, to acquiesce in a course of proceeding, which would draw out the trial to an immeasurable length; and which we conceive to be neither conformable to the rules of law, nor consistent with justice. Hitherto the counsel for the United States have taken frequent occasion to declare their belief of the guilt of the accused. On the motion I am about to make, arguments, drawn from this topic, will have no application. The question will turn on abstract principles, which will neither be changed nor affected by his innocence or guilt. The foundation on which this prosecution must rest, and which I should hope, had not been seen or attended to by the counsel for the United States themselves, will be exposed to view; and it will be for them to determine, whether it shall be abandoned, or maintained by doctrines incompatible with our republican institutions, and utterly inconsistent with every idea of civil liberty. In combating these doctrines, we shall, so far as we are able, support the cause not of our client alone, but of every citizen of the United States, and of future generations; for as to the establishment of the principle, it ought not to be considered as his cause alone, but as the cause of every member of the community and of posterity. The first position I shall lay down, is that no person can be convicted of treason in levying war, who is not personally present at the commission of the act, which is charged in the indictment as constituting the offence. The third section of the third article of the constitution of the United States, declaring that "treason shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort," and that "no person shall be convicted, unless on the testimony of two witnesses to the same overt act," there can be no doubt, if the words be construed according to their natural import, that it is necessary, in order to fix the guilt of the accused, to prove by two witnesses, that he committed an act of open hostility to the government, at the place charged in the indictment. But artificial rules of construction, drawn from the common law and the usages of courts in construing statutes, are resorted to in order to prove that these words of the constitution are to be construed, not according to their natural import, but that an artificial meaning, drawn from the statute and common law of England, is to be affixed to them, totally different. In the first place, I deny that any such rules of construction, however just they may be when applied to a statute, can be properly used, with reference to the constitution of the United States. This instrument is a new and original compact between the people of the United States, embracing their public concerns in the most extensive sense; and is to be construed, not by the rules of art belonging to a particular science or profession, but, like a treaty or national compact, in which the words are to be taken according to their natural import, unless such a construction would lead to a plain absurdity, which cannot be pretended in the present instance. 66 It being new and original and having no reference to any former act or instrument, forbids a resort to any other rules of construction than such as are furnished by the constitution itself, or the nature of the subject. If I be correct in this, there is an end to all further inquiry. It is not necessary to resort to artificial rules of construction. The words of the constitution, levying (or making) war," are plain and require no nice interpretation; and with respect to the other clause, adhering to their enemies," &c. it is a matter of no consequence here what may be its correct exposition, for the commonwealth has no enemies. The counsel for the United States will not contend that the words, used in their natural sense, can embrace the case of a person who never himself committed an act of hostility against the United States, and was not even present when one was committed. 66 But they will insist, that these words in the constitution are to have an artificial meaning, such as they contend has been given them in the courts in England; and that in that country, all persons aiding and abetting others in the act of levying war against the government, are guilty of treason, though not personally present. I shall contend first, that, notwithstanding some dicta of law-writers to the contrary, no such rule has practically obtained in that country; and that the decisions, entitled to any respect, lead to an inference directly contrary. And secondly, that if I be wrong in this, the principle, adopted there, cannot apply to treasons under the constitution of the United States. [After endeavoring to substantiate his first position by reference to English statutes and adjudications, Mr. Wickham proceeded as follows.] The object of the American constitution, was to perpetuate the liberties of the people of this country. The framers of that instrument well knew the dreadful punishments inflicted, and the grievous oppressions produced by constructive treasons in other countries, as well where the primary object was the security of the throne, as where the public good was the pretext. Those gentlemen well knew, from history, ancient as well as modern, that, in every age and climate, where the people enjoyed even the semblance of liberty, and where factions or parties existed, an accusation of treason, or a design to overturn the government, had been occasionally resorted to by those in power, as the most convenient means of destroying those individuals whom they had marked out for victims; and that the best mode of insuring a man's conviction, was to hunt him down as dangerous to the state. They knew that mankind are always the same, and that the same passions and vices must exist, though sometimes under different modifications, until the human race itself be extinct. That a repetition of the same scenes, which have deluged other countries with their best blood, might take place here, they well knew; and endeavored, as far as possible, to guard against the evil, by a constitutional sanction. They knew, that when a state is divided into parties, what horrible cruelties may be committed, even in the name and under the assumed authority of a majority of the people, and, therefore, endeavored to prevent them. The events, which have since occurred in another country, and the sufferings under Robespierre, show how well human nature was understood by those who framed our constitution. The language, which they have used for this purpose, is plain, simple and perspicuous. There is no occasion to resort to the rules of construction to fix its meaning. It explains itself. Treason is to consist in levying war against the United States, and it must be public or open war: two witnesses must prove, that there has been an overt act. The spirit and ob |