CHAPTER XIV.

1807.

BURR'S TRIAL CONTINUED. THE PRINCIPAL ARGUMENT IN THE CASE.NOTICES OF WIRT'S SHARE IN IT.-MR. MERCER'S TESTIMONY.-HIS DESCRIPTION OF BLANNERHASSET'S RESIDENCE.-OTHER INCIDENTS OF THE TRIAL.

THE trial proceeded through its preliminary stages, in which every question, capable of being raised, was presented and contested with scrupulous pertinacity and with abundance of acrimony. At length the two indictments were found;-the first, for treason, the second, for the misdemeanor. The case of treason was first taken up; the plea of not guilty made, and, after many challenges and rejections of those who had been summoned on the petit jury, a panel was obtained. New points, as to the order of examining the witnesses, were mooted and argued at every step, with the same asperity as before. Much testimony was delivered on the part of the prosecution. The charge of treason was supposed, by the counsel for the government, to be sustained by the evidence. This evidence proved that numbers of persons, amounting to some thirty or more, had assembled in warlike array, on Blannerhasset's island in the Ohio river, near Marietta, in December 1806, with a purpose, as it was affirmed, to proceed down the river, and, with the assistance of others, to seize the city of New Orleans, under the pretence of the ultimate invasion of Mexico. It was not proved, however, that Colonel Burr was present with these men on the island

Upon this testimony, the counsel for the prisoner asked the interposition of the court, to arrest the further examination of witnesses, on the following ground, as stated by Mr. Wickham.

"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 was 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 wholly irrelevant and inadmissible." Upon this motion of the prisoner's counsel arose the great and decisive argument in the case.

The discussion chiefly turned on the proposition suggested by Mr. Wickham,-"That no person can be convicted of treason in levying war, who was not personally present at the commission of the act charged in the indictment as constituting the offence."

There were other questions of less significance in the case, which were also argued with great amplitude and labor. "Whether there can be treason in levying war without the employment of force." "Whether one who would be only an accessory in a felony, is to be considered as a principal in treason by levying war." "And if so, whether the real principal ought not first to be convicted." These points and others were debated.

I have already intimated that it is not my design to furnish even an outline of this case; that my purpose is to submit only so much of it to the reader, as may give him some characteristic indications of Mr. Wirt's efforts towards the performance of the duty it imposed upon him. In the pursuit of this purpose, I shall continue to make some extracts from his argument upon the points now presented. This discussion was conducted with full preparation and study by all the counsel in the case, and as it was of a nature to determine the issue of the prosecution, it attracted a proportionate degree of interest from the public.

The extracts from Mr. Wirt's speech which follow, are made sparsim and without reference to a continuous or connected view of his topics: they are offered as specimens of manner, and illustrations of modes of thought, and with no view to an exhibition of the general force of the argument, which, indeed, could not be abbreviated without doing injustice to the speaker.

"It is my duty," said Mr. Wirt, in the commencement of his speech, "to proceed on the part of ths United States, in opposing this motion. But I should not deem it my duty to oppose it, if it were founded on correct principles. I stand here with the same independence of action, which belongs to the Attorney of the

United States; and as he would certainly relinquish the prosecution the moment he became convinced of its injustice, so also most certainly would I. The humanity and justice of this nation would revolt at the idea of a prosecution, pushed on against a life, which stood protected by the laws; but whether they would or not, I would not plant a thorn, to rankle for life in my heart, by opening my lips in support of a prosecution which I felt and believed to be unjust. But believing, as I do, that this motion is not founded in justice, that it is a mere manoeuvre to obstruct the inquiry, to turn it from the proper course, to wrest the trial of the facts from the proper tribunal, the jury, and embarrass the court with a responsibility which it ought not to feel, I hold it my duty to proceed for the sake of the court, for the sake of vindicating the trial by jury, now sought to be violated, for the sake of full and ample justice in this particular case, for the sake of the future peace, union and independence of these states, I feel it my bounden duty to proceed; in doing which, I beg that the prisoner and his counsel will recollect the extreme difficulty of clothing my argument in terms which may be congenial with their feelings. The gentlemen appear to me to feel a very extraordinary and unreasonable degree of sensibility on this occasion. They seem to forget the nature of the charge, and that we are the prosecutors. We do not stand here to pronounce a panegyric on the prisoner, but to urge on him the crime of treason against his country. When we speak of treason, we must call it treason. When we speak of a traitor, we must call him a traitor. When we speak of a plot to dismember the Union, to undermine the liberties of a great portion of the people of this country, and subject them to a usurper and a despot, we are obliged to use the terms which convey those ideas. Why then are gentlemen so sensitive? Why on these occasions, so necessary, so unavoidable, do they shrink back with so much agony of nerve, as if instead of a hall of justice, we were in a drawing-room with Colonel Burr, and were barbarously violating towards him every principle of decorum and humanity?

"Mr. Wickham has indeed invited us to consider the subject abstractedly; and we have been told, that it is expected to be so considered; but, sir, if this were practicable, would there be no danger in it? Would there be no danger, while we were mooting

points, pursuing ingenious hypothesis, chasing elementary principles over the wide extended plains and Alpine heights of abstracted law, that we should lose sight of the great question before the court? This may suit the purposes of the counsel for the prisoner; but it does not therefore necessarily suit the purposes of truth and justice. It will be proper, when we have derived a principle from law or argument, that we should bring it to the case before the court, in order to test its application and its practical truth. In doing which, we are driven into the nature of the case, and must speak of it as we find it. But besides, the gentlemen have themselves rendered this totally abstracted argument completely impossible, for one of their positions is, that there is no overt act proven at all. Now that an overt act consists of fact and intention, has been so often repeated here, that it has a fair title to Justice Vaughan's epithet of a 'decantatum.' In speaking then of this overt act, we are compelled to inquire, not merely into the fact of the assemblage, but the intention of it, in doing which, we must examine and develop the whole project of the prisoner. It is obvious, therefore, that an abstract examination of this point cannot be made; and since the gentlemen drive us into the examination, they cannot complain, if without any softening of lights or deepening of shades, we exhibit the picture in its true and natural state.

"This motion is a bold and original stroke in the noble science of defence. It marks the genius and hand of a master. For it gives to the prisoner every possible advantage, while it gives him the full benefit of his legal defence: the sole defence which he would be able to make to the jury, if the evidence were all introduced before them. It cuts off from the prosecution all that evidence which goes to connect the prisoner with the assemblage on the island, to explain the destination and objects of the assemblage, and to stamp, beyond controversy, the character of treason upon it. Connect this motion with that which was made the other day to compel us to begin with the proof of the overt act, in which, from their zeal, gentlemen were equally sanguine, and observe what would have been the effect of success in both motions. We should have been reduced to the single fact, the individual fact, of the assemblage on the island, without any of the evidence which explains the intention and object of that assemblage. Thus gen

tlemen would have cut off all the evidence, which carries up the plot almost to its conception, which at all events describes the first motion which quickened it into life, and follows its progress until it attained such strength and maturity as to throw the whole western country into consternation. Thus of the world of evidence which we have, we should have been reduced to the speck, the atom which relates to Blannerhasset's island.

"I shall proceed now to examine the merits of the motion itself and to answer the argument of the gentleman (Mr. Wickham) who opened it. I will treat that gentleman with candor. If I misrepresent him, it will not be intentionally. I will not follow the example which he has set me on a very recent occasion. I will not complain of flowers and graces where none exist. I will not, like him, in reply to an argument as naked as a sleeping Venus, but certainly not half so beautiful, complain of the painful necessity I am under, in the weakness and decrepitude of logical vigor, of lifting first this flounce and then that furbelow, before I can reach the wished for point of attack. I keep no flounces or furbelows ready manufactured and hung up for use in the millinery of my fancy, and if I did, I think I should not be so indiscreetly impatient to get rid of my wares, as to put them off on improper occasions. I cannot promise to interest you by any classical and elegant allusions to the pure pages of Tristram Shandy. I cannot give you a squib or a rocket in every period. For my own part, I have always thought these flashes of wit (if they deserve that name), I have always thought these meteors of the brain which spring up with such exuberant abundance in the speeches of that gentleman, which play on each side of the path of reason or, sporting across it with fantastic motion, decoy the mind from the true point in debate, no better evidence of the soundness of the argument with which they are connected, nor, give me leave to add, the vigor of the brain from which they spring, than those vapors which start from our marshes and blaze with a momentary combustion, and which floating on the undulations of the atmosphere, beguile the traveller into bogs and brambles, are evidences of the firmness and solidity of the earth from which they proceed. I will endeavor to meet the gentleman's propositions in their full force and to answer them fairly. I VOL. 1-16