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dictment, consists of the fact and of the intention with which that fact was committed. The testimony disclosing both the fact and the intention must be relevant. The court finds no express rule stating the order in which the attorney is to adduce relevant testimony, nor any case in which a court has interfered with the arrangement he has made. No alteration of that arrangement therefore will now be directed.

But it is proper to add, that the intention which is considered as relevant in this stage of the inquiry is the intention which composes a part of the crime, the intention with which the overt act itself was committed; not a general evil disposition, or an intention to commit a distinct fact. This species of testimony, if admissible at all, is received as corroborative or confirmatory testimony. It does not itself prove the intention with which the act was performed, but it renders other testimony probable which goes to that intention. It is explanatory of, or assistant to, that other testimony. Now it is essentially repugnant to the usages of courts, and to the declarations of the books by whose authority such testimony is received, that corroborative or confirmatory testimony should precede that which it is to corroborate or confirm. Until the introductory testimony be given, that which is merely corroborative is not relevant, and of conse quence, if objected to, cannot be admitted without violating the best settled rules of evidence.

This position may be illustrated by a direct application to the testimony of general Eaton. So far as his testimony relates to the fact charged in the indictment, so far as it relates to levying war on Blannerhassett's island, so far as it relates to a design to seize on New-Orleans, or to separate by force, the western from the Atlantic states, it is deemed relevant and is now admissible: so far as it respects other plans to be executed in the city of Washington, or elsewhere, if it indicate a treasonable design, it is a design to commit a distinct act of treason, and is therefore not relevant to the present indictment. It can only, by shewing a general evil intention, render it more probable that the intention in the particular case was evil. It is merely additional or corroborative testimony, and therefore, if admissible at any time, is only admissible according to rules and principles which the court must respect, after hearing that which it is to confirm.

The counsel will perceive how many questions respecting the relevancy of testimony, the arrangement proposed on the part of the prosecution will most probably produce. He is however at liberty to proceed according to his own judgment, and the court feels itself bound to exclude such testimony only, as at the time of its being offered, does not appear to be relevant.

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General William Eaton was then called to give his evidence. He inquired, whether he might be permitted to have a recurrence to his notes?

CHIEF JUSTICE.-Were they written by yourself?

Mr. Eaton. They were taken and copied by me from others, which are at my lodgings.

Mr. Burr's counsel objected, unless he had the original notes. Mr. WICKHAM.-At what time were they taken?

Mr. Eaton. At different times.

Mr. BURR. What is the nature of them?

Answer. They are nothing but memoranda taken from notes, which I made of the conversations between you and myself, at the times when they passed.

The court decided, that they were not admissible.

Mr. Eaton. May I ask one further indulgence from the court? I have been long before the public. Much stricture and some severity have passed upon me. May I, in stating my evidence, be permitted to make some explanation about the motives of my own conduct?

CHIEF JUSTICE.-Perhaps it would be more correct for the court to decide upon the propriety of the explanation, when the particular case occurs. Some cases may require it; and if any objection be made to your explanation, then the court will decide upon it.

Mr. Eaton. Concerning any overt act, which goes to prove Aaron Burr guilty of treason, I know nothing.

Mr. HAY.-I wish you to state to the court and jury, the different conversations you have had with the prisoner.

Mr. Eaton. Concerning certain transactions which are said to have happened at Blannerhassett's island, or any agency which Aaron Burr may be supposed to have had in them, I know nothing. But concerning colonel Burr's expressions of treasonable intentions, I know much, and it is to these, that my evidence relates.

Mr. MARTIN.-I know not how far the court's opinion extends. CHIEF JUSTICE.It is this; that any proof of intention formed before the act itself, if relevant to the act, may be admitted. One witness may prove the intention at one time, and another may prove it at another; so as to prove the continuance of the intention throughout the whole transaction; and therefore the proof of very remote intentions may be relevant to this particular act.

Mr. MARTIN.-I trust, that when he speaks of a treasonable intention not applicable to this act, the court will stop him.

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Mr. WICKHAM.-If I understand the opinion of the court correctly, it relates to treason charged to be committed in Virginia, and evidence of acts out of it, is inadmissible.

CHIEF JUSTICE.-The intention to commit this crime, to erect an empire in the west, and seize New-Orleans, may be shewn by subsequent events to have been continued; and facts out of the district may be proved, after the overt act, as corroborative testimony.

Mr. Eaton. During the winter of 1805, 6, (I cannot be positive as to the distinct point of time; yet, during that winter), at the city of Washington, Aaron Burr signified to me, that he was organizing a military expedition to be moved against the Spanish provinces, on the south western frontiers of the United States: I understood under the authority of the general government. From our existing controversies with Spain, and from the tenor of the president's communications to both houses of congress, a conclusion was naturally drawn, that war with that power was inevitable. I had just then returned from the coast of Africa, and having been for many years employed on your frontier, or a coast more barbarous and obscure, I was ignorant of the estimation in which colonel Burr was held by his country. The distinguished rank he held in society, and the strong marks of confidence which he had received from his fellow citizens, did not permit me to doubt of his patriotism. As a military character, I had been made acquainted with none within the United States, under whose direction a soldier might with greater security confide his honour than colonel Burr. In case of my country's being involved in a war, I should have thought it my duty to obey so honourable a call, as was proposed to me. Under impressions like these, I did engage to embark myself in the enterprise, and pledged myself to colonel Burr's confidence. At several interviews, it appeared to be his intention to convince me by maps and other documents, of the feasibility of penetrating to Mexico. At length, from certain indistinct expressions and innuendoes, I admitted a suspicion, that colonel Burr had other projects. He used strong expressions of reproach against the administration of the government: accused them of want of character, want of energy, and want of gratitude. He seemed desirous of irritating my resentment by dilating on certain injurious strictures I had received on the floor of congress, on account of certain transactions on the coast of Tripoli; and also on the delays in adjusting my accounts for advances of money on account of the United States; and talked of pointing out to me modes of honourable indemnity. I will not conceal here, that colonel Burr had good reasons for supposing me disaffected towards the government: I had indeed suffered much, from de

lays in adjusting my accounts for cash advanced to the government, whilst I was consul at Tunis, and for the expense of supporting the war with Tripoli. I had but a short time before been compelled ingloriously to strike the flag of my country, on the ramparts of a defeated enemy, where it had flown for forty-five days. I had been compelled to abandon my comrades in war, on the fields where they had fought our battles. I had seen cash offered to the half vanquished chief of Tripoli, (as he had himself acknowledged), as the consideration of pacification.

Mr. WICKHAM.-By whom?

Answer. By our negotiator, when as yet no exertion had been made by our naval squadron to coerce that enemy. I had seen the conduct of the author of these blemishes on our then proud national character, if not commended-not censured; whilst my own inadequate efforts to support that character were attempted to be thrown into shade. To feelings naturally arising out of circumstances like these, I did give strong expression. Here I beg leave to observe, in justice to myself, that however strong those expressions, however harsh the language I employed, they would not justify the inference, that I was preparing to dip my sabre in the blood of my countrymen; much less of their children, which I believe would have been the case, had this conspiracy been carried into effect.

Mr. MARTIN objected to this language.

I listened to colonel Burr's mode of indemnity; and as I had by this time begun to suspect, that the military expedition he had on foot was unlawful, I permitted him to believe myself resigned to his influence, that I might understand the extent and motive of his arrangements. Colonel Burr now laid open his project of revolutionizing the territory west of the Allegany; establishing an independent empire there; New-Orleans to be the capital, and he himself to be the chief; organizing a military force on the waters of the Mississippi, and carrying conquest to Mexico. After much conversation, which I do not particularly recollect, respecting the feasibility of the project, as was natural, I stated impediments to his operations; such as the republican habits of the citizens of that country, their attachment to the present administration of the government, the want of funds, the opposition he would experience from the regular army of the United States, stationed on that frontier; and the resistance to be expected from Miranda, in case he should succeed in republicanizing the Mexicans. Colonel Burr appeared to have no difficulty in removing these obstacles. He stated to me, that he had in person, (I think the preceding season), made a tour through that country; that he had secured to his interests and attached

to his person, (I do not recollect the exact expression, but the meaning, and I believe, the words were), the most distinguished citizens of Tennessee, Kentucky, and the territory of Orleans; that he had inexhaustible resources and funds; that the army of the United States would act with him; that it would be reinforced by ten or twelve thousand men from the above mentioned states and territory; that he had powerful agents in the Spanish territory, and "as for Miranda," said Mr. Burr, facetiously, "we must hang Miranda." In the course of several conversations on this subject, he proposed to give me a distinguished command in his army; I understood him to say, the second command. I asked him who would command in chief. He said, general Wilkinson. I observed, that it was singular, he should count upon general Wilkinson: the distinguished command and high trust he held under government, as the commander in chief of our army, and as governor of a province, he would not be apt to put at hazard for any prospect of precarious aggrandisement. Colonel Burr stated, that general Wilkinson balanced in the confidence of his country; that it was doubtful whether he would much longer retain the distinction and confidence he now enjoyed; and that he was prepared to secure to himself a permanency. I asked colonel Burr, if he knew general Wilkinson. He said, yes; and echoed the question. I told him that twelve years ago I was at the same time a captain in the wing of the legion of the United States, which general Wilkinson commanded, his acting brigade-major, and aid-de-camp; and that I thought I knew him well. He asked me, what I knew of general Wilkinson? I said, I knew general Wilkinson would act as lieutenant to no man in existence. "You are in an error," said Mr. Burr, "Wilkinson will act as lieutenant to me." From the tenor of much conversation on this subject, I was prevailed on to believe, that the plan of revolution meditated by colonel Burr, and communicated to me, had been concerted with general Wilkinson, and would have his cooperation; for colonel Burr repeatedly, and very confidently expressed his belief, that the influence of general Wilkinson with his army, the promise of double pay and rations, the ambition of his officers, and the prospect of plunder and military achievements, would bring the army generally into the measure. I pass over here, a conversation which took place between colonel Burr and myself, respecting a central revolution, as it is decided to be irrelevant, by the opinion of the bench.

Mr. HAY.-You allude to a revolution for overthrowing the government at Washington, and of revolutionizing the eastern

states.

I was passing over that, to come down to the period when I supposed he had relinquished that design, and adhered to the project of revolutionizing the west.

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