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the other day, to compel us to begin with the opened it. I will treat that gentleman with proof of the overt act, in which, from their candor. If I misrepresent him, it will not be zeal, gentlemen were equally sanguine, and ob- intentionally. I will not follow the example, serve what would have been the effect of suc- which he has set me, on a very recent occasion. cess in both motions. We should have been I will not complain of flowers and graces, where reduced to the single fact, the individual fact, none exist. I will not, like him, in reply to an of the assemblage on the island, without any argument as naked as a sleeping Venus, but of the evidence which explains the intention certainly not half so beautiful, complain of the and object of that assemblage. Thus gentle- painful necessity I am under, in the weakness men would have cut off all the evidence, which and decrepitude of logical vigor, of lifting first carries up the plot almost to its conception, this flounce, and then than furbelow, before I which, at all events, describes the first motion can reach the wished for point of attack. I which quickened it into life, and follows its keep no flounces or furbelows ready manufacprogress until it attained such strength and ma- tured and hung up for use in the millinery of turity as to throw the whole western country my fancy, and if I did, I think I should not be into consternation. Thus, of the world of evi- so indiscreetly impatient to get rid of my wares, dence which we have, we should have been re as to put them off on improper occasions. I duced to the speck, the atom which relates to cannot promise to interest you by any classical Blannerbassett's Island. General Eaton's de- and elegant allusions to the pure pages of Trisposition, (hitherto so much and so justly re- tram Shandy. I cannot give you a squib or a vered as to its subject,) standing by itself would rocket in every period. For my own part. I have been without the powerful fortification have always thought these flashes of wit, (t. derived from the corroborative evidence of they deserve that name) I have always thought Commodore Truxton, and the still stronger these meteors of the brain, which spring up and most extraordinary coincidence of the Mor- with such exuberant abundance in the speeches gans. Standing alone, gentlemen would have of that gentleman, which play on each side of still proceeded to speak of that affidavit, as the path of reason, or sporting across it with they have heretofore done; not declaring that fantastic motion, decoy the mind from the true what General Eaton had sworn was not the point in debate, no better evidence of the soundtruth, but that it was a most marvellous story! |ness of the argument with which they are cona most wonderful tale! and thus would they nected, nor, give me leave to add, the vigor of have continued to seek, in the bold and wild the brain from which they spring, that those extravagance of the project itself, an argument vapors which start from our marshes and blaze against its existence and a refuge from public with a momentary combustion, and which, floatindignation. But that refuge is taken away. ing on the undulations of the atmosphere, beGeneral Eaton's narration stands confirmed be- guile the traveller into bogs and brambles, are yond the possibility of rational doubt. But I evidences of the firmness and solidity of the ask what inference is to be drawn from these earth from which they proceed. I will enrepeated attempts to stifle the prosecution and deavor to meet the gentleman's propositions in smother the evidence? If the views of the their full force, and to answer them fairly. I prisoner were, as they have been so often will not, as I am advancing towards then with represented by one of his counsel, highly hon- my mind's eye, measure the height, breadth and orable to himself and glorious to his country, power of the proposition; if I find it beyond why not permit the evidence to disclose these my strength, halve it; if still beyond my views? Accused as he is of high treason, he strength, quarter it; if still necessary, subdiwould certainly stand acquitted, not only in vide it into eighths; and when, by this process reason and justice, but by the maxims of the I have reduced it to the proper standard, take most squeamish modesty, in showing us by evi- one of these sections and toss it, with an air of dence all this honor and this glory which his elephantine strength and superiority. If I find scheme contained. No, sir, it is not squeamish myself capable of conducting, by a fair course modesty; it is not fastidious delicacy that of reasoning, any one of his propositions to an prompts these repeated efforts to keep back the absurd conclusion, I will not begin by stating evidence; it is apprehension; it is alarm; it is that absurd conclusion as the proposition itself fear; or rather it is the certainty that the evi- which I am going to encounter. I will not, in dence, whenever it shall come forward, will fix commenting on the gentleman's authorities, the charge; and if such shall appear to the court thank the gentleman, with sarcastic politeness, to be the motive of this motion, your Honors, I for introducing them, declare that they conwell know, will not be disposed to sacrifice clude directly against him, read just so much public justice, committed to your charge, by of the authority as serves the purpose of that aiding this stratagem to elude the sentence of declaration, omitting that which contains the the law; you will yield to the motion no fur- true point of the case which makes against me; ther than the rigor of legal rules shall imperious- nor, if forced by a direct call to read that part ly constrain you.

also, will I content myself by running over it I shall proceed now to examine the merits as rapidly and inarticulately as I can, throw of the motion itself, and to answer the argu- down the book with a theatrical air, and erment of the gentleman, (Mr. Wickham,) who claim, “just as I said,” when I know it is just

as I had not said. I know that, by adopting succession, and to give them those answers these arts, I might raise a laugh at the gentle which to my mind are satisfactory. Let us exman's expense; but I should be very little amine the first: it is because Aaron Burr, not pleased with myself, if I were capable of enjoy- being present on the island at the time of the ing a laugh procured by such means. I know, assemblage, cannot be a principal in the treason, too, that by adopting such arts, there will al- within the constitutional definition or the laws ways be those standing around us, who have of England. not comprehended the whole merits of the legal In many of the gentleman's general proposidiscussion, with whom I might shake the char- tions, I perfectly accord with him: as that the acter of the gentleman's science and judgment constitution was intended to guard against the as a lawyer. I hope I shall never be capable calamities to which Montesquieu refers, when of such a wish, and I had hoped that the gen- he speaks of the victims of treason; that the tleman himself felt so strongly that proud, that constitution intended to guard against arbitrary high, aspiring and ennobling magnanimity, and constructive treasons; that the principles which I had been told conscious talents rarely of sound reason and liberty require their exclufail to inspire, that he would have disdained a sion; and that the constitution is to be interpoor and Heeting triumph, gained by means like preted by the rules of reason and moral right. these.

I fear, however, that I shall find it difficult to I proceed now to answer the several points accommodate both the gentlemen who have of his argument, so far as they could be collect spoken in support of the motion, and to reconed from the general course of his speech. Icile some of the positions of Mr. Randolph to say, so far as they could be collected; for the the rules of Mr. Wickham; for, while the one gentleman, although requested before he began, tells us to interpret the constitution by sound refused to reduce his motion to writing. It reason, the other exclaims, “save us from the suited better his partisan style of warfare to be deductions of common sense.” What rule then perfectly at large; to change his ground as shall I adopt? A kind of reason which is not often as he pleased; on the plains of Monmouth common sense might indeed please both the to-day, at the Eutaw Springs to-morrow. He gentlemen; but, as that is a species of reason will not censure me, therefore, if I have not of which I have no very distinct conception, I been correct in gathering his points from a hope the gentlemen will excuse me for not emdesultory discourse of four or five hours' length, ploying it. Let us return to Mr. Wickham. as it would not have been wonderful if I had Ilaving read to us the constitutional definimisunderstood him. I trust, therefore, that I tion of treason, and given us the rule by which have been correct; it was my intention to be it was to be interpreted, it was natural to exso; for I can neither see pleasure nor interest pect that he would have proceeded directly to in misrepresenting any gentleman; and I now apply that rule to the definition, and give us beg the court, and the gentleman, if he will the result. But while we were expecting this, vouchsafe it, to set me right if I have miscon- even while we have our eyes on the gentleman, ceived him.

he vanishes like a spirit from American ground, I understood him, then, sir, to resist the in- and we see him no more until we see him in troduction of further evidence, under this in- England, resurging by a kind of intellectual dictment, by making four propositions. magic in the middle of the sixteenth century,

First. Because Aaron Burr, not being on the complaining most dolefully of my lord Coke's island, at the time of the assemblage, cannot bowels. Before we follow him in this excurbe a principal in the treason, according to the sion, it may be well to inquire what it was that constitutional definition or the laws of England. induced him to leave the regular track of his

Second. Because the indictment must be argument. I will tell you what it was. It was, proved as laid ; and as the indictment charges sir, the decision of the Supreme Court in the the prisoner with levying war, with an assem case of Bollman and Swartwout. It was the blage on the island, no evidence to charge him judicial exposition of the constitution by the with that act, by relation, is relevant to this in- highest court in the nation, upon the very point dictment.

which the gentleman was considering, which Third. Because, if he be a principal in the made him take this flight to England, because treason at all, he is a principal in the second it stared him in the face and contradicted his degree; and his guilt being of that kind which position. Sir, if the gentleman had believed ås termed derivative, no parol evidence can be this decision to be favorable to him, we should let in to charge him, until we shall show a have heard of it in the beginning of his argurecord of the conviction of the principals in ment; for the path of inquiry in which he was the first degree.

led him directly to it. Interpreting the AmerFourth. Because no evidence is relevant to ican constitution, he would have preferred no connect the prisoner with others, and thus to authority to that of the Supreme Court of the make him a traitor by relation, until we shall country. Yes, sir, he would have immediately previously show an act of treason in these seized this decision with avidity. He would others; and the assemblage on the island was have set it before you in every possible light. not an act of treason,

He would have illustrated it. He would have I beg leave to take up these propositions in I adorned it. You would have seen it under the

action of his genius appear with all the varying cuse them, that fact was admitted, and the ingrandeur of our mountains in the morning sun. quiry would have been a very short one. But, He would not have relinquished it for the com- the court having previously decided that the mon law, nor have deserted a rock so broad and fact of presence or absence was unimportant, solid, to walk upon the waves of the Atlantic. that it made no odds how far distant the soBut he knew that this decision closed against cused might be from the treasonable assemhim completely the very point which he was blage, it became the unavoidable duty of the laboring. Hence it was that the decision was court to proceed to the inquiry, whether any kept so sedulously out of view, until from the such assemblage had taken place; and if the exploded materials of the common law he evidence had manifested that fact to its satis thought he had reared a Gothic edifice so huge faction, it is clear that, in the opinion of that and so dark, as quite to overshadow and eclipse court, the prisoners would have been as deeply it. Let us bring it from this obscurity into the involved in the guilt of that assemblage as any face of day. We who are seeking truth and of those who actually composed it. not victory, whether right or wrong, have no The counsel knew that their first point was reason to turn our eyes from any source of light met directly by the counter authority of the which presents itself, and least of all from a Supreme Court. They have impliedly, if not source so high and so respectable as the decision expressly, admitted it; hence they have been of the Supreme Court of the United States. reduced to the necessity of taking the bold and The inquiry is, whether presence at the overt difficult ground, that the passage which I have act be necessary to make a man a traitor ? The read is extrajudicial, a mere obiter dictum." gentlemen say that it is necessary; that he can- They have said this, but they have not atnot be a principal in the treason without actual tempted to show it. presence. What says the Supreme Court in the Give me leave to show that they are mis case of Bollman and Swartwout? “It is not taken; that it is not an “obiter dictum ;” that the intention of the court to say that no indi- it is not extrajudicial; but that it is a direct vidual can be guilty of this crime, who has not adjudication of a point immediately before the appeared in arms against his country; on the court. What were the questions before the contrary, if war be actually levied, that is, if a court? The court made no formal division of body of men be assembled for the purpose of this subject, but these questions are necessarily effecting by force a treasonable purpose, all and irresistibly involved in it. It must first be those who perform any part, however minute, observed, that the arrest of Bollman and Swartor however remote from the scene of action, wout at New Orleans, and the fact that they and who are actually leagued in the general had not been present at any assemblage of the conspiracy, are to be considered as traitors." traitors in arms, were notorious and admitted.

Here then we find the court so far from re- The case then presented to the court three dis quiring presence, that it expressly declares that, tinct questions. First. Has Aaron Burr comhowever remote the accused may have been mitted treason, or bas he been engaged or from the scene of the treasonable assemblage, he leagued in any treasonable conspiracy Secis still involved in the guilt of that assemblage, ond. Were Bollman and Swartwout connected his being leagued in the general conspiracy was with him? Third. Could they be guilty of sufficient to make the act his own. The Su- treason without being actually present? Now, preme Court, being of that opinion, proceeded if the court had been satisfied that there had to an elaborate examination of the evidence, to been an overt act, and that these men were ascertain whether there had been a treasonable leagued in the conspiracy which produced it

, assemblage. It looked to the depositions of still it would have remained a distinct and sub General Eaton and General Wilkinson, the ci- stantive question, whether their absence from phered letter, the declaration of Swartwout that the overt act, and their having no immediate Burr was levying an armed body of seven thou- hand in it, did not discharge them from the sand men; and it looked to these parts of the constitutional guilt of levying war; for, though evidence expressly for the purpose of discover leagued in the conspiracy, and although there ing, whether it were probable that Burr had might have been an overt act, these men would actually brought these men together ; not have been innocent, if presence at the overt act whether Bollman and Swartwout were present were necessary to make them guilty. The at any such assemblage. It knew that, if any question then, of presence or absence, was a such assemblage had taken place, Bollman and question really presented by the case of Boll Swartwout must have been at that time at the man and Swartwout. It was one important to city of Orleans, or on their way thither; in the decision of the case, and the court, thinking deed the whole reasoning of the court proceeded it so, did consider and decide it in direct oppoon the fact, as admitted, of the prisoner's ab- sition to the principle contended for on the sence. Why, then, the laborious investigation other side. A plain man would imagine that, which the court makes as to the probability of when the Supreme Court had taken up and Burr having brought his men or any part of decided the case, its decision would form a prethem together, unless the guilt of that assem- cedent on the subject; and, having that authorblage were to be imputed to Bollman and Swart- ity on my side, I should suppose that I might wout? If their absence were sufficient to ex- safely dismiss the gentleman's first point. But

Mr. Randolph seems to think it very doubtful | But its object, I presnme, was not to declare whether you ought to be bound by that author- that there was no such crime. It certainly did ity, and that you must be very much embar- not mean to encourage treason. It meant to rassed to have to decide it, even admitting it to recognize the existence of the crime and provide be a regular judicial determination of this ques- for its punishment. The liberties of the people, tion; for he made a very pathetic and affecting which required that the offence should be deapostrophe to the situation in which you would fined, circumscribed and limited, required also be placed, if you differed from this opinion of that it should be certainly and adequately punthe Supreme Court.

ished. The framers of the constitution, inI see no difficulty in the case, if our laws are formed by the examples of Greece and Rome, to be uniform. How can the inferior court con- and foreseeing that the liberties of this republic trol the decisions of the superior court? You might one day or other be seized by the daring are but a branch of the Supreme Court. If ambition of some domestic usurper, have given you, sir, sitting as a circuit court, have a right peculiar importance and solemnity to the crime, to disregard the rule decided by the Supreme by ingrafting it upon the constitution. But they Court, and adopt a different rule, every other have done this in vain, if the construction, coninferior court has an equal right to do the tended for on the other side, is to prevail. If same, so that there will be as many various it require actual presence at the scene of the rules as to treason as there are courts; and the assemblage to involve a man in the guilt of result might be, and certainly would be, that treason, how easy will it be for the principal what would be treason in one circuit would not traitor to avoid this guilt and escape punishbe treason in another; and a man might be ment for ever! He may go into distant States, hung in Pennsylvania for an act against the from one State to another. He may secretly United States, in which he would be held per- wander, like a demon of darkness, from one fectly innocent in Virginia. Thus treason end of the continent to the other. against the United States would still be unsettled IIe may enter into the confidence of the and fluctuating, and the object of the constitu- simple and unsuspecting. He may pour his tion, in defining it, would be disappointed and poison into the minds of those who were before defeated; whereas a principle of law, solemnly innocent. He may seduce them into a love of adjudged by the Supreme Court, becomes, I his person, offer them advantages, pretend that apprehend, the law of the land; and all the his measures are honorable and beneficial, coninferior courts are compulsorily bound by it. nect them in his plot and attach them to his To say that they are not, is to disorganize the glory. He may prepare the whole mechanism whole judiciary system, to confound the dis- of the stupendous and destructive engine and tinctions and grades of the courts, to banish all put it in motion. Let the rest be done by his certainty and stability from the law, and to agents. He may then go a hundred miles from destroy all uniformity of decision. I trust that the scene of action. Let him keep himself we are not prepared to rush into this wild dis- only from the scene of the assemblage and the order and confusion, but that we shall tempe- immediate spot of battle, and he is innocent in rately and regularly conform to the decrees of law, while those whom he has deluded are to that parent court, of which this is a mere suffer the death of traitors! Who is the most branch, until those decrees shall be changed by guilty of this treason, the poor, weak, deluded the same high authority which created them. instruments, or the artful and ambitious man

But for a moment, let us relinquish that de- who corrupted and misled them? There is no cision, and, putting it aside, let us indulge the comparison between his guilt and theirs; and gentleman with the inquiry, whether that de- yet you secure impunity to him, while they cision be in conformity with the constitution of are to suffer death! Is this according to the the United States, and the laws of England. In rules of reason? Is this moral right? Is this interpreting the constitution, let us apply to it a means of preventing treason? Or rather, is the gentleman's own principles: the rules of it not in truth a direct invitation to it? Sir, it reason and moral right. The question to be thus is obvious, that neither reason nor moral rights · determined is, whether a man, who is absent, require actual presence at the overt act to conmay not be guilty as if he were actually stitute the crime of treason. Put this case to present.

any common man, whether the absence of a That a law should be so construed as to ad- corruptor should exempt him from punishment vance the remedy and repress the mischief, is for the crime which he has excited his deluded not more a rule of common law, than a princi- agents to commit; and he will instantly tell you ple of reason; it applies to penal as well as to that he deserves infinitely more severe punishremedial laws. So also the maxim of the comment than his misguided instruments. There mon law, that a law as well as a covenant should is a moral sense much more unerring in quesbe so construed that its object may rather pre- tions of this sort, than the frigid deductions of vail than perish, is one of the plainest dictates jurists or philosophers; and no man of a sound of common sense. Apply these principles to mind and heart, can doubt for a moment bethe constitution. Gentlemen have said, that its tween the comparative guilt of Aaron Burr, object was to prevent the people from being the prime mover of the whole mischief), and harassed by arbitrary and constructive treason. I the poor men on Blannerhassett's Island, who

VOL. 11.30

called themselves Burr's men. In the case of miles from the scene of action, incur equally the murder, who is the most guilty, the ignorant, sentence of the law; they are all equally traideluded perpetrator, or the abominable instiga- tors. This scale, therefore, which graduates the tor? The decision of the Supreme Court, sir, guilt of the offenders and establishes the order is so far from being impracticable on the ground of their respective trials, if it ever existed here, of reason and moral right, that it is supported is completely abrogated by the highest authorby their most obvious and palpable dictates. ities in this country. The convention which Give to the constitution the construction con- formed the constitution and defined treason, tended for on the other side, and you might as Congress which legislated on that subject, and well expunge the crime from your criminal code; the supreme judiciary of the country expoundnay, you had better do it, for by this construc- ing the constitution and the law, have united tion you hold out the lure of impunity to the in its abrogation. But let us for a moment put most dangerous men in the community, men of the convention, Congress and judiciary aside, ambition and talents, while you loose the ven- and examine how the case will stand. Still this geance of the law on the comparatively inno- scale of moral guilt, which Mr. Wickham has cent. If treason ought to be repressed, I ask given us, is the creature of the common law, you who is the most dangerous and the most which, as already observed, he himself in another likely to commit it—the mere instrument who branch of his argument, has emphatically told applies the force, or the daring, aspiring, elevated us does not exist in this country. He has stated genius who devises the whole plot, but acts be that the creature presupposes the creator, and hind the scenes ? *

that where the creator does not exist, the crea I come now, sir, to the gentleman's third | ture cannot. The common law, then, being point, in which' he says he cannot possibly fail

. the creator of the rule which Mr. Wickham has It is this: “because if the prisoner be a prin- given us, and that common law not existing cipal in the treason at all, he is a principal in in this country, neither can the rule, which is the second degree; and his guilt being of that the mere creature of it, exist in this country. kind which is termed derivative, no further So that the gentleman has himself furnished the parol evidence can be let in to charge him, un- argument which refutes this infallible point of til we show a record of the conviction of the his, on which he has so much relied. But to principals, in the first degree.”

try this position to its utmost extent, let us By this

, I understand the gentleman to ad- not only put aside the constitution and act of vance, in other terms, the common law doc- Congress, and decision of the Supreme Court, trine, that when a man is rendered a princi- but let us admit that the common law does expal in treason, by acts which would make him ist here. Still, before the principle could apply, an accessory in felony, he cannot be tried before it would remain to be proven, that the conduct the principal in the first degree.

of the prisoner, in this case, has been accesso I understand this to be the doctrine of the rial; or, in other words, that his acts in rela common law, as established by all the authori- tion to this treason, are of such a nature as ties; but when I concede this point, I insist, that would make him an accessory in felony. it can have no effect in favor of the accused, for

But is this the case? It is a mere "petitio two reasons: first, because it is the mere crea- principii.” It is denied that bis acts are such ture of the common law; secondly, because, if as would make him an accessory in felony. I the common law of England be our law, this have already, in another branch of this subject, position assumes what is denied, that the con- endeavored to show, on the grounds of authoriduct of the prisoner, in this case, is of an acces- ty and reason, that 'a man might be involved in sorial nature, or such as would make him an the guilt of treason as a principal, by being legalaccessory in felony.

ly though not actually present; that treason oc First. Because this position is the mere crea-cupied a much wider space than felony; that ture of the common law. If it be so, no con- the scale of proximity between the accessory sequence can be deduced from it. It is suffi- and principal must be extended in proportion cient, on this branch of the subject, to take his to the extent of the theatre of the treason; and own declaration, that the common law does not that as the prisoner must be considered as exist in this country. If we examine the con- legally present, he could not be an accessory but stitution and the act of Congress, we shall find a principal. If I have succeeded in this, I have that this idea of a distinction between princi- in fact proved that his conduct cannot be deemed pals in the first and second degree, depends en accessorial. But an error has taken place from tirely upon the common law. Neither the con- considering the scene of the overt act as the stitution nor the act of Congress knows any theatre of the treason, from mistaking the overt such distinction. All who levy war against the act of the treason itself, and consequently from United States, whether present or absent-all referring the conduct of the prisoner to the acts who are leagued in the conspiracy, whether on

on the island. The conduct of Aaron Burr bas the spot of the assemblage or performing some been considered in relation to the overt act on minute and inconsiderable part in it, a thousand Blannerhassett's island only; whereas it ought

to be considered in connection with the grand The rest of the argument on this point is omitted, as design, the deep plot of seizing Orleans, separatwell as the entire argument on the second point

ing the Union, and establishing an independent

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