Answer. I came from Beaver with them.

Mr. EDMUND RANDOLPH then addressed the court to the following effect:

May it please your Honour,

I might be satisfied with what has been said by Mr. Wickham yesterday and to-day, as sufficient to open and fully explain the grounds of our application to the court; but on this occasion, my duty as counsel is fortified by my duty as a citizen, to combat and, if possible, refute the pernicious doctrines of constructive treason, which are attempted to be supported by the gentlemen on the other side.

The evidence brings us fairly to four points, which I shall submit, in the form of questions, to the consideration of the

court.

First. Whether there can be treason in levying war without the employment of force.

Secondly. Whether, under the constitution of the United States, a person, who it is admitted would be an accessory in felony, can be considered as a principal in treason in levying

war.

Thirdly. Whether, under the form of this indictment, charging colonel Burr with having done the act personally, any evidence of a derivative or accessorial agency can be admitted.

Fourthly. And if such evidence of a derivative or accessorial treason were to be admitted, under this indictment, whether the real principal ought not to be first convicted.

First. I contend, that there can be no treason without the exercise of actual force.

We make no dereliction of the plea of innocence, which the law presumes as a safeguard to life. The counsel would fail in their duty to their country, as good citizens, if they were to waive this defence, which is so strongly connected with the public safety. This high ground of presumptive innocence, which the law has granted to us, should be defended for the public safety, and for the purpose of fixing and preserving those great principles, without which it cannot exist.

The law of treason should be clearly understood, and the regulations and rules concerning it well ascertained; for, as Montesquieu has justly observed, if the doctrine of treason be indeterminate in any country, however free its form of government, it is sufficient to make it degenerate into tyranny. There is no reason to believe that it would be otherwise in our country, as Mr. Hay would persuade us, (though I believe its government the best on earth) for I am told by the framers of the constitution, that they have prevented that very evil from hap

pening by fixing precise terms in that instrument; that they have bound down the legislature by special words descriptive of treason, and erected a barrier beyond which they cannot depart by any construction, and thus prescribed limits, from their jealousy of man even clothed with legislative honours. Every man takes a personal interest in the affairs of his country, and is alarmed at the name of treason. Of this we find a confirmation in the declaration of Mr. Jefferson, that colonel Burr was guilty. That declaration excited the utmost alarm throughout the country. This appears still more fully confirmed by the examination of the persons summoned as grand and petit jurors. From the examination of those who are to sit on this occasion, and those who were selected for that purpose but excluded, it is manifest that the prejudices excited by this alarm have almost overwhelmed the whole country. If it were necessary to go into a full examination of this subject, it would appear from a general scope of the history of the world, that if the doctrine of treason be not kept within precise limits, but be left vague and undefined, it gives the triumphant party the means of subjecting and destroying the other; means which may be too readily and eagerly employed.

If the law of treason ought not to be left unfixed or uncertain, there ought to be no treason in levying war, without the employment of force; for if force be dispensed with, it will be extremely uncertain and dependent on the will of the government. It was intimated the other day by the gentlemen on the other side, that we had a definition of treason in levying war given by the supreme court, in the case of Bollman and Swartwout; and that it consisted in inlisting and assembling men, without the exertion of any force.

I should yield to the decided and still acknowledged good sense of the judiciary; because that corps is, in my estimation, the palladium of individual safety. I should do so with the greater cheerfulness because those who compose it are individuals who are studious to avoid, averse to repeat and never unwilling to recant error.

Sir, may I be indulged with one remark, which may perhaps seem too strong: I should be deceived for more than twenty years with respect to him who delivered that opinion, if he would hazard a stain on the sword of justice by such a construction of the law of treason as has been given by the gentleman on the other side. Yes sir, I do say, that this cannot be the language and sentiment of the supreme court. For, first, the point was not discussed, nor necessary to be discussed; and what was said concerning it, was therefore extrajudicial.

What were Bollman and Swartwout charged with? They were charged with treason generally; but it was well ascertained, that there was no evidence of actual force in levying war, and therefore it was unnecessary to pay any attention to that subject. The decision on this point, if there were any such, was extrajudicial; for whatever it determined, on every thing not submitted to its decision, was so pro hac vice. But what if it had been so decided? Would it be contended that we must adhere to it? Uniformity of rules is sometimes attempted to be preserved in civil matters; and experience has proved that provided the law be established in matters of property, it is immaterial what it is, as rules of property are mostly mere creatures of society; but when we come to speak of human rights, of questions affecting the principles of civil liberty, no judge will be opposed to reconsider the subject merely because he has once given an opinion on it. A precedent hastily adopted may produce the most destructive consequences. A just theory ought to be sought in order to make government a protector, not a Moloch. The manes and family of one unrighteously condemned ought not to be appeased by the sacrifice of another. Even in regard to civil matters, in mere questions of property, our court of appeals does not only not bind itself by one decision, but even permits its subordinate tribunals to reexamine points in which there has been but a single decision. If it were otherwise, especially in criminal cases, error would beget error, and one wave of injustice would succeed another, till our land should be overwhelmed and unfit for the habitation of human liberty. But if the language of the supreme court were ever so explicit and imperious, but now found to be incorrect, as applied to this case, how are you to proceed? Aware that you are a subordinate tribunal, and that there exists that relation between you and the supreme court, which public utility requires, you would wish to conform to the principles of its decisions: but what species of subordination is required? Surely not a sanguinary one. I do not believe that there is a subordinate court in the United States, that, if once impressed that a wrong sentence was given against the accused, would not see in a moment that in conforming to it, it would be made an instrument of injustice against its own conscience. What are you to do? I know not. I do not, I dare not ask you to rebel nor prescribe what you should do; but let us pray Heaven to stay the arm of the destroying angel. Sir, I contend that with regard to that decision, it ought not to affect the question now before the court: for elementary principles drawn from one case, so as to influence another, depend upon similitude of facts; and if drawn from one case, the most per

fect similitude ought to be shewn. Will gentlemen examine the case of Bollman and Swartwout and compare it with the case of colonel Burr? Is there any resemblance between them? It is indispensable that general expressions in that or any other opinion be taken with reference to the particular facts and questions then under consideration. What precedent is ever drawn from a dissimilar case? It was contended in Bollman and Swartwout, that there was no military force, or military assemblage, and therefore it was unnecessary to inquire whether force were indispensable to the consummation of treason. The court finding no probable cause of fact, without mischief to Bollman and Swartwout, extended its positions beyond the degree commensurate with the case: but I deny that it extended them as far as the counsel for the prosecution insist. It did not intend to write a treatise on the subject. It had no assistance from the bar. The principle now under consideration was not discussed. No authorities were adduced from other cases, to lead the decision of that case: and what difference is there between the supreme court and inferior courts, but this, that in the more elevated parts of the atmosphere, the rays which proceed from the sun of justice should come to us with less refraction?

Secondly. The opinion of the supreme court, as it is understood by the gentlemen on the other side, is inconsistent with itself; because it refers for support to the opinions of judges Patterson, Iredell and Chase, and the latter's more particularly. This opinion of the supreme court declares that "in conformity to the principles now laid down, have been the decisions heretofore made by the judges of the United States. The opinions given by judges Patterson and Iredell, in cases before them, imply an actual assembling of men, though they rather de signed to remark on the purpose to which the force was to be applied, than on the nature of the force itself. Their opinions, however, contemplate the actual employment of force." How can the opinions of judges Iredell and Patterson support the declaration, that a mere assemblage of men, without actual force, shall constitute treason, when they "contemplate the actual employment of force?"

But the opinion of the supreme court refers more particularly to that of judge Chase. "Judge Chase, in the trial of Fries, was more explicit. He stated the opinion of the court to be, that if a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States, by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, they are guilty of the treason of levying war; and

the quantum of the force employed neither lessens nor increases the crime; whether by one hundred or one thousand persons, is wholly immaterial. The court are of opinion," continued judge Chase on that occasion, "that a combination or conspiracy to levy war against the United States, is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war, but it is altogether immaterial whether the force used is sufficient to effectuate the object; any force, connected with the intention, will constitute the crime of levying war." Judge Chase is explicitly of opinion, then, that some actual force or violence must be used. How can this be reconciled with their construction, that a bare" assemblage of men, met for a treasonable purpose, is sufficient to constitute the crime of levying war?" This comparison is in plain language, and cannot be misunderstood. It proves most clearly the fallacy of the doctrine for which gentlemen contend. But I may be told, that judge Chase was present on the bench when the supreme court decided, that "the fact of levying war may be committed by an assemblage of men, for a purpose treasonable in itself," and that "if a body of men be actually 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," and from whence it may be contended, that he assented to these short sentences. Sir, I derive a contrary argument from it. Unless he had retained his former opinionunless he had believed that the whole tenor of the opinion of the supreme court was consistent with that former opinion, he would have dissented from it, and avowed his disapprobation of a decision, not recognising the rectitude of that former opinion. He could not mistake his own former opinion; and his concurrence in the sentence of the supreme court, approving it, clearly evinces, that he still entertained the same sentiments. This is therefore, an argument in our favour, that all the judges would have given a contradiction to opinions already given in such explicit terms, if they had disapproved of them. If judge Chase had not adhered to his opinion, he certainly would have said so, and not have sanctioned a decision which would not have taken place without his concurrence.

According to the opinions of those three judges, an assemblage without force could not be guilty of the crime of treason in levying war. Suppose then, that the judges had used all those expressions in the sense on which the counsel for the United States so earnestly rely, and had changed and disa