form more points were detailed, yet in substance I understood that they considered the success of their motion, as dependent on the establishment of two points only. First, That the accused not having been present at the commission of the overt act, no evidence can be adduced to prove his connexion with that overt act. Second, That the overt act charged not being proved to the satisfaction of the court, no evidence of any other overt act can be adduced in support of the indictment. Those who are concerned in this prosecution must feel a conviction that the object of this motion is to exclude from the court and jury all the traitorous evidence and to prevent us from proving the crime which is charged against the prisoner, at this stage of the proceedings. I wish, sincerely wish, that no motion had been made, which would impose on me, as this does, the necessity of exposing freely my opinion of the guilt of the prisoner. It was my anxious wish to have postponed all remarks of this kind, till all the evidence should have been fully and completely laid before the court and jury and the people of this country; but since this wish cannot be gratified, I hope that I shall be excused, in the discussion of this important question, whether the accused be guilty or not, for expressing my belief, that he has committed the offence for which he is indicted, and following the course which the counsel for the prisoner have prescribed to me.

Before I answer their arguments, I deem it proper, if the court will permit me, to take a short view of the strange manner in which this defence has been conducted. We blame not the prisoner for exercising any of those rights, which as a citizen he is entitled to, and which it were perhaps a violation of duty not to exercise; and no man's talents are more competent to distinguish and assert his rights, than those of the accused. We object not to his making any such motion as rightly belongs to his defence. But the prisoner, for the purpose of escaping the effect of the prosecution carrying on against him, has with unexampled dexterity contrived from the very start, almost invariably, to quit his situation as an accused. On every occasion, from the commencement to this present moment, instead of Aaron Burr defending himself, we find him taking the high ground of public accuser and assailing others. The highly respectable officer, who apprehended and conducted him to the place, the only place recognised by the constitution and laws as proper for his trial, has been abused and calumniated for this important service. A meritorious officer of the United States, for detecting and exposing this conspiracy and for risking his fortune, his life and honour to save his country, coming hither as a witness to give testimony in favour of that country, is instantly attacked by the prisoner. He attacks him

for an offence alleged against him, but not proved; not for the commission of a crime, but for a course of conduct which need only to be expressed to receive the highest eulogium. The public functionaries themselves, to whose vigilance, wisdom and patriotism, the people of the union are at this moment indebted for the rights they enjoy, for their security against a plot of treason, equally foul, cruel and formidable, which would not have left a trace of our liberties undestroyed; these public functionaries have been denounced by the prisoner, and he has attempted to persuade the public that they ought to be considered as persecutors and enemies to the liberties of their country.

Sir, it requires no great strength of discernment to perceive what was the prisoner's object. The development of this treasonable plot had deservedly excited the abhorrence of our fellow citizens universally throughout the country. It was a bold undertaking, but if he had succeeded in his daring and treasonable project, however his views of ambition might have been gratified, he would have been justly execrated as the destroyer of the freedom of his country. The saviour of his country, who has prevented the execution of this detestable plot, in proportion as he has deserved well of his fellow citizens, has incurred the hatred and resentment of the prisoner and his associates. The patriotic and meritorious officer (like those who opposed and overthrew Cataline the Roman conspirator) who defeated this daring scheme against American liberty, will not be forgiven by the conspirators.

But I beg you to observe a little more of the prisoner's conduct. Before the arrival of general Wilkinson, I need not take notice of the repeated and strong insinuations against him, both in and out of court, that he would never dare to come; nor need I mention the proceedings against him after he had arrived. Before the indictment was sent to the grand jury and after it was sent, but before it was known what would be the result of their inquiry, a proposition was professedly made to influence their deliberations, to prove that the accused was innocent; we were fairly challenged to come forward with our indictment, and informed that the prisoner was ready prepared to meet all the evidence against him and to prove his innocence to the world. Finally, the gentleman from Maryland, speaking in very strong language and appealing to his innocence, used these very expressions, that "his honourable friend was as ignorant and innocent of the offence charged against him, as the child unborn," and further, the last gentleman who went before me expressed his belief, that Aaron Burr knew nothing of the overt act committed on Blannerhassett's island. I heard

him say so. I am willing to make a reasonable allowance for the impressions made on the counsel by his representations. If he be innocent and pure as the child unborn, if he know nothing of the transaction, why is it that this motion is made to exclude the evidence? Will the exclusion of this evidence seal the lips of one hundred witnesses? The principle of defence now is ignorance and innocence; what has become of all this boldness with which we were at first amused? Now when we are ready with our evidence, they come forward with this motion. Will this place the gentleman on the high and honourable ground on which innocence ought to place him? Common sense has been appealed to. I will leave it to common sense to answer this inquiry. I have thought it my duty to express my opinion concerning the guilt of the prisoner. We have just received information of further evidence ready to be adduced, in order to satisfy the court and all who hear me, that the probability of his guilt is not lessened, nor can this motion, however decided, diminish that probability.

I will proceed now, sir, as well as I may be able, to answer some of those arguments which were urged by the counsel for the prosecution. I hope I will not be considered as wanting respect for one of those gentlemen if, in the course of my observations, I should mention another gentleman more frequently than himself. It may suffice to say, that, as they generally relied on the same arguments and authorities, to answer one will be to answer both..

I trust, that the 'confidence with which the gentleman, who made the motion, declared himself able to demonstrate the positions which he laid down, will not diminish the difficulty of his task or induce a less scrupulous inquiry into the correctness of his arguments. It is true, sir, that I have not devoted that time and attention to the consideration of those particular questions which he has presented for the decision of the court, which I would have wished and which their importance required. It is evident to the court, from his volume of notes, and may be to all the world, that he has bestowed much time and attention on the subject. I presume that the confidence, with which he declares himself convinced, that his motion ought to prevail, can have no effect. I am most perfectly convinced, though he has expressed himself with the most remarkable earnestness, that he is mistaken. Though I might not feel disposed to express myself violently in opposition to what he has so seriously advanced, yet it is my duty to myself as well as to truth and justice, when I entertain a different opinion in this or any other case, whether professionally or any other way, firmly to assert and as ably as I can to support that opinion.

I trust it will be seen by the court, when it examines their argaments and authorities, that those authorities do not contain or warrant the doctrines they contend for, and that we shall be able to shew directly the reverse.

He has stated, that according to the constitution of the United States, the common law of England or the law of the United States, as Aaron Burr was absent at the time when the act was done, he cannot be convicted on this indictment; and that the rules of construction which apply to common statutes ought not to be used with reference to the constitution. I apprehend it will be sufficient for me to shew, that the language of the law of England and of our constitution is the same on this subject. Before I call the attention of the court to the third section of the third article of the constitution, which Mr. Wickham read, I hope, as an appeal has been more than once made to that devotion and attachment to the constitution of the United States, which every good citizen ought to feel, that I may be excused for saying, on my own account, that I feel as much reverence and affection for the constitution, as the pledge of the happiness of my country, as any man; and that I am as much attached to the principles of our government, as he or any other man can be; and I trust I shall at all times feel it my duty to maintain the constitution against all encroachments to the best of my ability and judgment. I am perfectly convinced, that the gentleman wishes to defend the constitution and laws of his country; and that he has those patriotic and generous feelings which he has described to the court. But on the present occasion he must excuse me for saying, that it is more incumbent on the counsel for the prosecution, than on those of the accused, to defend the peace, safety, liberty, happiness, constitution and government of this country; and, when I recollect that the administration has these for its objects, I have no doubt, that while it will do justice to the public, it will also do justice to the accused; and if efforts should hereafter be made to subvert the government, it will continue to be faithful and vigilant in detecting and defeating them; and will inquire into every case, according to its real merits, so that law and justice may be truly administered.

Mr. Wickham read the third section of the third article of the constitution, in order to prove, that under the constitution the prisoner cannot be convicted of the offence of which he is indicted:"treason against the United States, shall consist only in levying war against them," &c. Mr. Wickham is apprehensive, I presume, that some inferences may be drawn unfavourable to the prisoner from the interpretation which has been given to the statute 25 Edward III. and might be applied to

this case, because the words of the constitution and the words of the statute are the same. He stated that the construction of the constitution and of the statute must be different. I acknowledge to the court, that though I listened to him, as well with respect as with pleasure, yet I could not see any reason for the distinction he attempted to establish; for if the words in both be precisely the same and the words of the statute have been (as is admitted) correctly expounded, the interpretation of the constitution ought to be in the same way. Whatever may be. the correct construction of the constitution and whether the statute have been correctly construed or not, yet it must be admitted, that the correct interpretation of the one must be the correct interpretation of the other. It is immaterial to me how they consider this subject, whether under the constitution or statute or common law of England, but the argument does not apply to this case. Absence from the scene of action does not comprehend such a case as is now before the court. It is possible for a number of men to be concerned in levying war against the United States and yet be absent from the spot, when the overt act laid in the indictment may have been committed.

This obliges me to speak to the court of the nature of our evidence, which they wish to exclude; some of which the court has already heard. I hope that the necessity imposed on me to speak will be regarded as my sufficient apology, for any remarks I may make explanatory of, or relative to that doctrine.

CHIEF JUSTICE. You have a right to suppose any act compatible with the absence of the accused.

Here a desultory conversation ensued, in which Mr. Burr observed, that the testimony relative to the acts on Blannerhassett's island was to be excluded, because it was irrelevant; and Mr. Wickham insisted, that if the most positive evidence in the world could be adduced in favour of the prosecution, yet as colonel Burr was not then on the island, the law was in his favour; and Mr. Hay insisted that this depended on the evidence itself, which ought to be heard before any correct opinion of its effect could be formed.

The CHIEF JUSTICE observed, that as the motion was predicated on the ground, that the accused was not actually present on the island, and this was not denied, no argument could be correct, that supposed him to be actually present.

Mr. MAC RAE.I suppose I may be authorized to speak of the testimony actually examined. The evidence is such, as if it were adduced before the court, would serve to shew that the first position laid down by the gentleman cannot be maintained.