phere, beguile the traveller into bogs and brambles, are evidences of the firmness and solidity of the carth from which they proceed. I will endeavor to meet the gentleman's propositions in their full force, and to answer them fairly. I will not, as I am advancing towards them with my mind's eye, measure the height. breadth and power of the proposition; if I find it beyond my strength, halve it; if still beyond my strength, quarter it; if still necessary, subdivide it into eighths; and when, by this process, I have reduced it to the proper standard, take one of these sections and toss it, with an air of elephantine strength and superiority. If I find myself capable of conducting, by a fair course of reasoning, any one of his propositions to an absurd conclusion, I will not begin by stating that absurd conclusion, as the proposition itself, which I am going to encounter. I will not, in commenting on the gentleman's authorities, thank the gentleman, with sarcastic politeness, for introducing them, declare that they conclude directly against him, read just so much of the authority as serves the purpose of that declaration, omitting that which contains the true point of the case, which makes against me; nor, if forced by a direct call to read that part also, will I content myself by running over it as rapidly and inarticulately as I can, throw down the book, with a theatrical air, and exclaim, "just as I said," when I know it is just as I had not said. I know, that, by adopting these arts, I might raise a laugh at the gentleman's expense; but I should be very little pleased with myself, if I were capable of enjoying a laugh procured by such means. I know, too, that by adopting such arts, there will always be those standing around us, who have not comprehended the whole merits of the legal discussion, with whom I might shake the character of the gentleman's science and judgment as a lawyer. I hope I shall never be capable of such a wish, and I had hoped that the gentleman himself felt so strongly that proud, that high, aspiring and ennobling magnanimity, which I had been told conscious talents rarely fail to inspire.

that he would have disdained a poor and flecting triumph, gained by means like these.

I proceed now to answer the several points of his argument, so far as they could be collected from the general course of his speech. I say, so far as they could be collected; for the gentleman, although requested, before he began, refused to reduce his motion to writing. It suited better his partisan style of warfare to be perfectly at large; to change his ground as often as he pleased; on the plains of Monmouth today, at the Eutaw Springs to-morrow. He will not

censure me, therefore, if I have not been correct in gathering his points from a desultory discourse of four or five hour's length, as it would not have been wonderful if I had misunderstood him. I trust, therefore, that I have been correct; it was my intention to be so; for I can neither see pleasure nor interest, in misrepresenting any gentleman; and I now beg the court, and the gentleman, if he will vouchsafe it, to set me right if I have misconceived him.

I understood him, then, sir, to resist the introduction of further evidence, under this indictment, by making four propositions.

First. Because Aaron Burr, not being on the island, at the time of the assemblage, cannot be a principal in the treason, according to the constitutional definition or the laws of England.

Second. Because the indictment must be proved as laid; and as the indictment charges the prisoner with levying war, with an assemblage, on the island, no evidence to charge him with that act, by relation, is relevant to this indictment.

Third. Because, if he be a principal in the treason at all, he is a principal in the second degree; and his guilt being of that kind which is termed derivative, no parol evidence can be let in to charge him, until we shall show a record of the conviction of the principals in the first degree.

Fourth. Because no evidence is relevant to connect the prisoner with others and thus to make him a

traitor by relation, until we shall previously show an act of treason in these others; and the assemblage on the island was not an act of treason.

I beg leave to take up these propositions in succession, and to give them those answers which to my mind are satisfactory. Let us examine the first: it is because Aaron Burr, not being present on the island at the time of the assemblage, cannot be a principal in the treason, within the constitutional definition or the laws of England.

In many of the gentleman's general propositions, I perfectly accord with him: as that the constitution. was intended to guard against the calamities to which Montesquieu refers, when he speaks of the victims of treason; that the constitution intended to guard against arbitrary and constructive treasons; that the principles of sound reason and liberty require their exclusion; and that the constitution is to be interpreted by the rules of reason and moral right. I fear, however, that I shall find it difficult to accommodate both the gentlemen who have spoken in support of the motion and to reconcile some of the positions of Mr. Randolph to the rules of Mr. Wickham; for while the one tells us to interpret the constitution by sound reason, the other exclaims, "save us from the deductions of common sense." What rule then shall I adopt? A kind of reason which is not common sense, might indeed, please both the gentlemen; but as that is a species of reason of which I have no very distinct conception, I hope the gentlemen will excuse me for not employing it. Let us return to Mr. Wickham.

Having read to us the constitutional definition of treason, and given us the rule by which it was to be interpreted, it was natural to expect, that he would have proceeded directly to apply that rule to the definition and give us the result. But while we were expecting this, even while we have our eyes on the gentleman, he vanishes like a spirit from American ground, and we see him no more until we see him in England.

resurging by a kind of intellectual magic in the middle of the sixteenth century, complaining most dolefully of my lord Coke's bowels. Before we follow him in this excursion, it may be well to inquire, what it was that induced him to leave the regular track of his argument. I will tell you what it was. It was, sir, the decision of the supreme court, in the case of Bollman and Swartwout. It was the judicial exposition of the constitution by the highest court in the nation, upon the very point which the gentleman was considering, which made him take this flight to England; because it stared him in the face and contradicted his position. Sir, if the gentleman had believed this decision to be favorable to him, we should have heard of it in the beginning of his argument, for the path of inquiry, in which he was, led him directly to it. Interpreting the American constitution, he would have preferred no authority to that of the supreme court of the country. Yes, sir, he would have immediately seized this decision with avidity. He would have set it before you in every possible light. He would have illustrated it. He would have adorned it. You would have seen it under the action of his genius appear with all the varying grandeur of our mountains in the morning sun. He would not have relinquished it for the common law, nor have deserted a rock so broad and solid, to walk upon the waves of the Atlantic. But he knew that this decision closed against him completely the very point which he was laboring. Hence it was, that the decision was kept so sedulously out of view, until from the exploded materials of the common law, he thought he had reared a Gothic edifice so huge and so dark, as quite to overshadow and eclipse it. Let us bring it from this obscurity into the face of day. We who are seeking truth and not victory, whether right or wrong, have no reason to turn our eyes from any source of light which presents itself, and least of all from a source so high and so respectable as the decision of the supreme court of the United States. The inquiry is, whether presence at the overt

The

act be necessary to make a man a traitor? gentlemen say, that it is necessary; that he cannot be a principal in the treason, without actual presence. What says the supreme court, in the case of Bollman and Swartwout? It is not the intention of the court to say, that no individual can be guilty of this crime, who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."

Here then we find the court so far from requiring presence, that it expressly declares, that however remote the accused may have been from the scene of the treasonable assemblage, he is still involved in the guilt of that assemblage; his being leagued in the general conspiracy was sufficient to make the act his own. The supreme court being of that opinion, proceeded to an elaborate examination of the evidence to ascertain whether there had been a treasonable assemblage. It looked to the depositions of general Eaton and general Wilkinson, the ciphered letter, the declaration of Swartwout that Burr was levying an armed body of seven thousand men; and it looked to these parts of the evidence expressly for the purpose of discovering, whether it were probable that Burr had actually brought these men together; not whether Bollman and Swartwout were present at any such assemblage. It knew that if any such assemblage had taken place, Bollman and Swartwout must have been at that time at the city of Orleans or on their way thither; indeed the whole reasoning of the court proceeded on the fact, as admitted, of the prisoner's absence. Why then the laborious investigation which the court makes as to the probability of Burr having brought his men or any part of them together, unless the guilt of that assemblage were to be imputed to