It was then proposed, that the court should meet at nine o'clock in the morning, and sit till four in the afternoon; this was finally determined.

Mr. HAY proceeded then to the examination of the witnesses summoned on the part of the United States; general William Eaton was sworn, when'

Colonel BURR rose and objected to this order of examining the witnesses. He said Mr. Hay had not stated the nature of Mr. Eaton's testimony; but he presumed that it related to certain conversations said to have happened at Washington; adding, that the propriety of admitting any other testimony, depended on the previous proof of an overt act.

Mr. HAY.-Our object is to prove by him, what is contained in his deposition, which has been published.

Mr. BOTTS, Mr. WICKHAM and Mr. MARTIN, then called on them to prove (what they said the court had already determined to be the proper course of proceeding) an overt act. They presumed that, if the decision of this court were to be respected, gentlemen should call on the witnesses to prove facts before declarations. But if gentlemen did not admit that this point had been already sufficiently determined by the court, it would be their duty to go into a recapitulation of the arguments, and quotation of the authorities heretofore referred to, unless the court would say, that the question had been already decided. Their object was to save the time of the court; they knew that there had been a great deal of war in the newspapers: but they also knew from actual experience and positive knowledge, that there had been no war in fact in this country; and knowing that there has been in fact no war, are we, (they asked), to be entertained by this and that idle story; to waste several weeks at great expence and trouble; detain from their homes, the court, counsel and jury, and keep the prisoner in a very unpleasant situation; and all for no useful purpose, in the discussion of points entirely irrelevant to the question in issue? Shall we be told in justification of this great waste of time, and this immense trouble, that they mistook the law and the testimony; that they expected to prove an overt act, but were disappointed?

They further contended, that the material fact on which all the merits of the controversy depended ought first to be proved in every case; that it would be irregular, irrational and illegal to admit corroborative testimony, before proof was adduced of the principal fact, which it was intended to confirm. They admitted that it was usual, in most criminal prosecutions, to call on the prosecutor to begin his proof in support of either point, fact or inten

tion, as he might deem proper; but, they said, there were twe reasons for this practice. First, every prosecutor, learned in criminal law, began with proving the fact on which principally the charge was founded. Or, secondly, the fact was known to be susceptible of clear proof, and therefore, there was an acquiescence on the part of the accused with respect to the commission of that fact. As in the case of a prosecution for murder: the fact of killing ought certainly to be first proved; but it is generally so well known to have been committed by the accused, that there is no question made on that point; and the defence arises from the motives or inducement to the perpetration of the act whether justifiable or excusable. In such a case, it would be ridiculous to inquire into the causes or circumstances of the killing, till the death were proved; but in all other cases of a similar nature, where the fundamental fact was denied, it must be proved before any confirmatory proof should be admitted. And wherever a prosecutor, from inadvertence, want of experience, or any other cause, began at the wrong end of the prosecution, and the accused himself did not see cause to acquiesce, he had a right to apply to the court, to require proof of the principal fact. They argued with great ingenuity and at considerable length in support of this principle; that the court ought not to admit corroborative testimony, in anticipation of the principal fact, to corroborate which, it is sought to be introduced. They referred to the former decision of the court, relative to this same point, on the motion to hold colonel Burr to bail in a greater sum of money, than had been at first required, and insisted that the order of evidence was part of the law of evidence; that the court was to judge of the competency of testimony, and had a right to stop any evidence which it deemed immaterial; that it was of no avail to prove intentions or designs before an overt act, an open deed of war, had been established; that, as in a writ of ejectment, it would be ridiculous to begin with proving the boundaries before the title was proved, so, it was improper to begin with the declarations of colonel Burr, or any conversations, until the overt act were shewn; that these declarations could only be admitted as confirmatory evidence; that it would be peculiarly hard on any individual, to ransack and expose all the transactions of his whole life in a court of justice; that nothing was more repugnant to justice, than to discuss, misrepresent, and torture every conversation, however innocent, which he had held, and every declaration, however loose and inadvertent, which he had made at any time, and on any occasion, before it was known, whether any actual crime could be proved against him; that if the prosecutor would thus proceed to develop the intention only, the court had a right to stop him, and require the production of evidence, of the act itself. They made many other observations to

the same purport. They cited Foster, p. 246. and Judge Iredell's opinion on Fries's Trial, the Case of Smith and Ogden, and Hardy's Case. Their arguments on this doctrine are considerably condensed; because it was afterwards, with other points, very fully and elaborately discussed on the motion made by Mr. Wickham, to arrest the evidence.

Mr. WIRT addressed the court on this subject, as follows:

After expressing his regret at the unnecessary waste of so much time, by so many motions and obstacles thrown in the way of the prosecution, by the accused, he contended, that the opposition made to the introduction of this testimony, and to the arrangement of the attorney for the United States, was unprecedented; that from the first foundation of courts to this day, it had been the practice for the prosecutor to display the evidence in his own way; and that it manifested a disrespect to the attorney, tò require a departure from it, in this instance. I defy, said Mr. Wirt, the gentlemen to produce a single example, from all the English authorities, from the whole history of their jurisprudence, where the attorney general, or the counsel for the crown, has been arrested in the introduction or arrangement of the evidence, by the counsel of the defendant, and put on a different course. I defy them to produce a single example, of any interference with the course adopted by the prosecutor. It depends on himself, who knows the evidence best, to state and exhibit it according to his own judgment. If the whole evidence be adduced, the result will be the same, in whatever manner it may be arranged; but the chronological order which the attorney was about to pursue, unfolding events as they occurred, is no less conformable to law and reason, than sanctioned by uniform experience. It develops this conspiracy from its birth to its consummation; unravels the plot from its conception to its denoument, and traces Aaron Burr step by step as he advanced and became more bold, till the act was consummated, by the assemblage on Blannerhassett's island. Is not this the lucid order of nature and reason? Would you begin to narrate a tale at the end of it? If you were to write a history of the late revolution, would you begin at the siege of York? We wish to display the history of facts as they happened, not only because it is the most luminous mode of communicating them to the jury, but because it is our duty to vindicate it as the right of the attorney, as consistent with universal practice in prosecutions, both in our own, and every other civilized country. Examples of a contrary practice, might be found in England, if it ever existed; but no case can be shewn in the courts of Great Britain, where the counsel for a prisoner has been permitted on a trial, to invert the order of chronology for his own purposes. I refer the court to

the Trial of Hardy, pages 95, 96, 97. Though that case is not directly applicable to the case now before the court, I introduce it, to shew the independence of the attorney general of England, in conducting prosecutions, and introducing testimony as he thinks proper; and to prove that the opposition now made to our evidence, is unusual in that country. He introduced many letters and papers against Hardy, and declarations of his associates. In p. 95, "Then followed the correspondence between Mr. Hardy as secretary to the corresponding society, and Mr. Gerald and Mr. Margarot, two of the delegates at the convention in Edinburgh; most of these papers were printed also in the appendix to the report of the committee of secrecy." They were produced by a witness of the name of Gurnell. These papers being all read by the officer of the court, Mr. Bowen said, “My lords, we now propose, on the part of the crown, to read the proceedings of the convention itself." To this, Mr. Erskine, for the prisoner, objected; because, though the society had been formed, the object of its formation had not yet been heard of by evidence; that if Margarot and Gerald had exceeded the letter and spirit of their instructions, the prisoner could not be affected by it; that he was charged with no act of the convention at Edinburgh. "He is charged," said Mr. Erskine, p. 96, "with having encompassed the death of the king; to prove that he had that wicked intention, the evidence should be clear, and refer to the act itself; but no act can be given in evidence, that does not go to shew, that the prisoner had that encompassing in his own heart at the time the act was committed." This shews his conviction, that proof of the intention may precede that of the acts; p. 97. "I must take care that the rules of law are preserved inviolate. All that I mean to say, is, that if Mr. Hardy knew of the proceedings of this convention in Edinburgh, then my objection falls to the ground in this respect." The lord president agreed that the evidence proposed, could not be adduced immediately against the prisoner. He observed, however, that it might be let in; but that the application of it was another thing. At all events, the prisoner might afterwards object that the delegates had exceeded their commission, and that objection would be valid so far. Mr. Bower. "Yes, my lord, we mean to shew, in many instances, the prisoner's subsequent approbation of the proceedings of the British convention." The lord president. "That declaration is enough to let in the evidence, the application of it will depend on what will further appear."

Now, sir, how were the proceedings of this convention admitted as evidence? The court decided, that they should be first read, and applied afterwards by other testimony, to Hardy. Did the court tell the prosecutor," you shall stop, till you shew a prerious connexion between them, and his subsequent approbation:

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you shall not read these proceedings?" The attorney told the court I will adduce evidence to let the testimony in. I will prove his approbation subsequently." The attorney's declaration, of his intention to prove the approbation of Hardy, was respected by the court, and those proceedings were permitted to be read. Now here was an evident perversion of the rule, for which the gentlemen contend. For according to it, the subsequent approbation of Hardy ought to have been proved before the proceedings of the convention; the admissibility of the latter depended on the proof of the former. If this approbation could not have been proved afterwards, the reading of the proceedings would have been illegal and the time employed in it lost. But the court did not stop the attorney. It told him, on your declaration that you will bring it home to Hardy, you may read the evidence now. Yet this was a direct perversion of the doctrine which gentlemen wish now to establish. Why should not the same respect be paid to the declarations of the attorney for the United States in this case? If you permit us to proceed in the way we propose, we shall neither violate principle nor waste time. Can there be an overt act of treason without an intention to commit it? Can any assemblage, however large, armed or arrayed, however disorderly and tumultuous, commit an act of treason without intending it? and ought not their intention be proved? The rule of law excludes whatever does not touch the issue; but the intention is an important feature in that issue. Every transaction derives its character principally from the intention. It is the great point in every case. Yet we are stopped from explaining the intention by a pretended difficulty; that its premature introduction tends to fetter the minds of the jury, as if the proof of the intention preceding that of the act, did not present an unity of action from the birth to the consummation of the design. But we are to be stopped. The objection manifests a want of respect for the attorney, as if he knew not, better than any other, the nature and bearing of the evidence, and how to unfold it, in the most regular way. It is improper not only for this reason, but because the mode we propose, is the most luminous and correct; it is the order of nature itself, as it traces the transactions from beginning to end. We insist on its correctness for another reason; because the method they propose, cannot produce a single good effect. Gentlemen say, that if we prove the overt act first, we can be permitted to shew the design afterwards. They say that none is yet proved. Suppose we prove no overt act in the opinion of the court, how are the jury to be disposed of? Could you send them out to deliberate or could you discharge them? If the prosecutor state that he is about to proceed to prove the intention, can the court say that it does not prove the overt act, and that therefore they will send the jury out without hearing the