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.

Though the prisoner was not at Blannerhassett's island when the overt act was committed, yet he is guilty of treason if any body be guilty. Is there any human being, who having heard the evidence of general Eaton and Mr. Henderson, the evidence of the Messrs. Morgans and the evidence of the witnesses who speak of the overt act on the island, especially Jacob Allbright and Peter Taylor, who can doubt of his guilt? Is there a human being who can doubt of the prisoner's intention to commit treason? The jury are legally authorized to draw inferences from facts proved to them. This would produce an essential difference between their conclusion and what the counsel for the accused wish to consider as correct. All the witnesses are credible; and Eaton's evidence is to the point. It is not necessary to repeat it all, because the court took notes when he was examined. General Eaton informed the court, that Aaron Burr described the present administration in terms far from respectful, as weak and inefficient, wanting both energy and talents, but this he postponed for a considerable time. General Eaton had a fair claim against the government and he was dissatisfied at its being withheld. This was a circumstance known to the prisoner, which he was authorized to believe rendered him not very friendly to the administration. What did he do? After planning and plotting and satisfying himself that such a plot as this, conducted with a great deal of art, of secrecy and of management, might possibly succeed, he commenced his inquiries with this gentleman; and took care to remind him how extremely improperly the government had treated him. He had the art of working his resentment already inflamed to a still higher pitch. Cautious in every step (for no man has a more comprehensive knowledge of human nature) he proceeded by degrees, till he thought it would be safe to mention his plans to Eaton. At first, he said not a word of treason; his conversations related to an expedition against the Spanish territories, with an intimation that it was probable we should have a war with Spain; that the prisoner should be the chief commander, and that he would give a distinguished station to general Eaton, who was disposed to serve his country in any enterprise that was honourable or beneficial to her interests. He was willing to take the station pointed out for him, believing it was sanctioned by the government, the prisoner artfully adapting and changing his conversations to inculcate that belief; sometimes speaking of the Mexican expedition and sometimes of the government. Feeling general Eaton's pulse and offering him prospects of wealth and emolument, he advanced step by step, till at length, fancying that Eaton was disposed to join him (having deceived him in that VOL. II. F

respect) he came out with strong denunciations against the government. When you have heard from a respectable witness, that he proposed to him to join him, but that he rejected his proposals and would not be concerned in the expedition; that the first bold and daring step would be to dismember the American confederacy; that New-Orleans should be seized and made the seat of the new government; and that the Allegany was to be the dividing line between the Eastern and Western governments. I say, when these things have been heard, is there any man who can doubt that the prisoner entertained treasonable intentions? When you proceed further and examine the evidence of the Morgans, fully connected with that of Eaton, is it not obvious that this was the object which he never ceased to cherish? The court will recollect the testimony of colonel George Morgan and his sons: the contemptuous manner in which he spoke of the weakness of the government, the number of men which he deemed necessary to subvert it, and the certainty that the western country would be separated from the eastern in a very short period; his designating on the map, when conversing on this subject on which his mind never ceased to dwell; his anxiety to engage young Morgan to join him; his discouraging reflection against his study of the law; his coming down stairs at eleven o'clock at night; his beckoning to him to go out with him; his inquiries and conversations about military affairs and young gentlemen; his manifest chagrin when he found that he could make no impression on the old gentleman and that nothing could be got out of him: all these and other circumstances concur to shew the views of the accused.

The evidence of commodore Truxtun too, as it relates to the intention, is in my mind very strong. He gave an account of two or three conversations with him: that he wished to create a navy of which he was to be at the head; that he wished him to be unwedded from the navy of the United States. He spoke of the weakness of the government and the expedition to Mexico. He said at one time, that the government must be involved in a war with Spain, but admitted that the president was not privy to the project in which he was concerned; that he wished to see or make him an admiral. Gentlemen rely much on the word "see," but there can be no sort of question that to "make" him an admiral was his meaning. He had told him before to think no more of those men at Washington and to be unwedded from the navy of the United States. If then he became an admiral, he must be of the prisoner's making. I have thought proper thus briefly to mention the evidence, to shew the intention of the prisoner at various times, as far back as

thepreceding winter or fall; and in July following when going to the western country, he passed by the residence of this respectable gentleman Mr. Morgan. It ought not to be forgotten, that when they were on Blannerhassett's island, there was a little more than mere intention. I do not say that the accused was there when the overt act was committed, but he was there once or more before. This is proved by Mr. Woodbridge, the witness who proves that he entered into a contract to supply him with flour and provisions and to build boats for him. Biannerhassett here appears deeply involved in the treason. When Aaron Burr went for the purpose of making a contract for provisions and boats and Mr. Woodbridge began to doubt the certainty of getting payment, he was displeased and asked him if he doubted colonel Burr's honour? and he pledged himself to see the provisions &c. paid for. Why did he go to the island? Why did he make this contract about the boats and provisions? We do not require the court to decide on this evidence. That belongs properly to the jury and not to the court. We do not wish to take from the jury what properly comes within their exclusive jurisdiction or to wrest from the court what is its province alone to decide. Suppose we can prove, that when Aaron Burr went some distance below Blannerhassett's island, he had a number of men and a very considerable number of arms in his possession. Suppose we can prove that these people were at his instance brought together to Beaver, and then at his instance also went to the island. Suppose we can prove that he met them by previous appointment at the mouth of the Cumberland, to take command of them; that a junction was formed between the two parties there, and that in the mean time they were considered as under his control and subject to his directions. Suppose we can prove, that the prisoner at length understanding what was his own dangerous situation and that of the people with him said to them, "fly for your lives or the Philistines will be upon you," and that they did fly. Suppose we can also prove, that going farther down the river towards the seat of his fancied empire and hearing that the militia of the Mississippi territory would prevent him from succeeding in his project, in this situation he became more afraid, put his arms in boxes and sunk them in the river, but artfully attached to the bottom of the stern of the vessel, in order that those who came on board should not see them; and suppose we can, in addition to all this mass of solid testimony, prove that he afterwards acknowledged that his project was defeated by general Wilkinson. Ought we not to be permitted to lay all this evidence before the jury and endeavour to demonstrate to them that an act of treason has been committed? Will any gentle

man doubt that Aaron Burr had thoughts of committing treason? Some gentlemen indeed say, that they doubt whether any evidence in the world can convict him, as he was not on Blannerhassett's island at the time laid in the indictment. But this I will endeavour to shew is erroneous.

I have examined the authorities to which the gentleman has referred, but I do not see that they justify the inferences which he has drawn from them or countenance the doctrine which he has laboured to establish, at least to the extent which he contends.

Even in England, a person standing in the situation of the prisoner would be held and indicted as a principal and not as an accessory, as the gentleman supposes. If these things have been proved on the prisoner, if an overt act have been committed on Blannerhassett's island and war have been hereby levied against the United States, I should hold it to be indisputably clear, that Aaron Burr was guilty of levying war against his country. I cannot see how it is necessary that he should be there, if he inlisted the men and sent them to that place and acted himself in another. If both belong to the same party, if he be leagued with them and coming towards them to assume the command, it does seem to me that all these things are to be considered as so many different acts of the same treason; and any one person, who is guilty of any one overt act, is guilty of all the others; and I trust I shall be able to prove to this court, that this is the law of England and this country, notwithstanding the confidence with which the gentlemen on the other side aver the contrary.

Mr. Wickham said a great deal to prove, that if the prisoner were to be considered as in any degree guilty, he ought to be considered only as an accessory and specially indicted as such; and he denounced in very strong and very proper terms some decisions in England, which I think were indeed so horrid and disgraceful, that I cannot but express my abhorrence of them, though the gentleman seemed to think that we should rely on them.

With the leave of the court, I will mention the first case which he mentioned, and which he only read as stated in a note to the 4th vol. of Tucker's Blackstone. I mean the case of Throgmorton.

As this case has been referred to and listened to by many gentlemen who were present, and the reading and comments may have made some unfavourable impressions against us, I will take the liberty of reading the case for the purpose of shewing two things: first, that there is a great difference between the courts in this country and the commissioners in that