he was incorrect. I would agree to die ten thousand times over before I would dare to advance so horrible a proposition. It was the language of zeal, mistaken zeal, uttered in the warmth of debate. It was a spark of momentary irritation which is common to that gentleman with most other men, but inconsistent with his usual sentiments of politeness and friendship, which I hope now. have resumed their place in his breast. I do not wish to hurt his feelings; but I must add, that he went still farther. He stated that if we opposed him, we must adopt the doctrine established by the cruel Jeffries, and apply it against the accused; not the doctrine of the execrable Coke, but of the bloodthirsty Jeffries. Have we quoted his opinions, resorted to his authority or advocated his principles? Sir, I never did, I never will, I never can advocate opinions and principles which I abhor; and I firmly and cordially unite in handing down the name of Jeffries with my execration to all posterity. Let that name be consigned to merited and eternal infamy. No man holds it in in greater detestation and abhorence than I do. Jeffries the disgrace of the English bench, whose name is not mentioned even in that country but to be despised, will never be spoken of in this country but in terms of the deepest reproach.

Sir, we have never gone one step out of the right path as far we could trace it. We have confined ourselves within the fair exposition of the constitution of our country, according to our several capacities. I may be mistaken; but I have heard nothing yet to induce me to think, that my exposition of the constitution and laws is incorrect. I have not stated a single fact which I did not believe to be true, nor urged a single argument which has not operated conviction on my own mind. Nor have the great and persevering exertions of the counsel of the accused, with all the splendour of their talents and the depth of their researches, enabled them to advance a single principle of defence which, in my estimation, hath not been amply refuted.

With this view of the subject, and believing the liberty, prosperity and happiness of the people, to be strongly connected with the decision of this case, I cannot conclude without expressing my hope, that the motion will be rejected; that according to the opinion of this court on a late occasion, they will not stop the prosecution, but permit us to introduce the rest of our witnesses, in order to enable the jury to decide upon the fact coupled with the intention.

After Mr. Hay concluded, a short and desultory conversation took place among the counsel of the accused.

Mr. MARTIN who was expected to reply was not then ready. Mr. RANDOLPH said, that though he had not intended to speak any more on this question, yet he would reserve to him

self, with the approbation of the court, the liberty of answering some observations which he had heard to day, if what he felt should not be expressed by other gentlemen; that he had heard some things said in a high tone respecting the power of the court to grant the motion, and the danger of usurpation on the rights of the jury; that he would take upon himself to vindicate the power of the court, if he found it necessary, after other gentlemen should have spoken.

Mr. CHARLES LEE then addressed the court as follows:

May it please your Honours. Several considerations are necessary in this inquiry. I shall endeavour to establish four points, to satisfy the court that our motion is founded on law and ought to be granted; but before I proceed to the arrangement or division of the subject, I will make a few preliminary remarks.

This is an objection to testimony which is deemed by colonel Burr and his counsel to be illegal and improper. When this motion to exclude it was made, I considered it as an ordinary step in legal proceedings: an objection to the admission of improper testimony, which promised nothing very novel or interesting: a motion founded on a principle never denied to be correct and familiar in every day's practice. It would seem that in such a motion nothing could occur to produce surprise or excite the feelings of the gentlemen to whom we are opposed. Who can deny the principle that either party, in any cause civil or criminal, has a right to object to the admission of unlawful testimony? In what courts have they practised without hearing such motions frequently made? Appeal to their own experience, and they will inform you, that questions of this kind are constantly made and as constantly decided in all the courts in which they practise. But when this ordinary motion is made, you are informed that the power of the court does not reach it; that you have no right to decide it; that you are bound to avoid the bulwark of liberty; that if you grant the motion you transcend the line of your jurisdiction and usurp the powers and rights of the jury, by deciding up on facts! Is it not sufficient to state our objection to satisfy your Honour and the gentlemen themselves, that you are not called on to decide facts? Is it possible that the gentlemen could believe, that we called on the court to decide any fact? to snatch from the jury (to use his own phrase) the decision of this case? Whatever may be the determination of the court, whether the motion succeed or not, the jury are to render their verdict on the evidence which according to the rules of the law is submitted to their consideration.

Our motion, which is so simple and plain and founded on so clear a right, has been misunderstood; and being so I wonder not that it has been misrepresented. Our motion is not to exclude

any legal testimony; but we call on the court to arrest illegal testimony.

It has been represented that the testimony which we object to is of transactions, of acts done in Virginia. We have never had such a thought. Our objection is only to irrelevant testimony. We cannot agree that every act in the whole course of his life, of a private as well as of a public nature should be publicly exposed and become the subject of judicial investigation. When they endeavour to prostrate every thing that is dear to us, we cannot submit to encroachments on our important rights or waive great and beneficial privileges. What could have put it into the gentlemen's imaginations? what could have induced them to consider it in that point of view? When we first made the motion, we stated to your Honours, that it was to illegal testimony which we objected.

But say gentlemen, can you stop the evidence after the trial has been begun before the jury? Yes: I say they can; and we know that the court only has a right to stop the evidence when it is illegal. If you cannot stop it, who can? Is there no rule for the regulation of trials and of evidence? Is it all uncertainty, squabbling, caprice and chance? It has been the common use to stop illegal testimony from being heard by a jury, not only in civil but in criminal cases. There is scarcely any distinction between the rules of evidence in civil and criminal cases. It belongs to the court to regulate these rules. I know nothing more favourable to liberty than the power of the court to interpose with respect to evidence. By its means it can prevent any individual from being unjustly oppressed; and though it can prevent, it cannot practise oppression, without corruption; which ought never to be presumed.

The gentleman then said, that in substance there was no difference between the opinion which we desire you to give, and that for which judge Chase was impeached. It was very kind in the gentleman to remind the court, of the danger of a decision of the motion in favour of the prisoner: a decision like that, which had already produced the impeachment of another judge.

Mr. HAY,-The cases are different. What I said was only said to put Mr. Botts right in his misrepresentation. It was innocently said and compatible with the highest respect for the court; not with the design which the gentleman (I will say not very candidly) insinuates.

CHIEF JUSTICE.-I did not consider you as making any personal allusion, but as merely referring to the law.

Mr. LEE. The gentleman plainly insinuated the possibility of danger to the court, from a favourable opinion to the prisoner;

because he said that the opinion which we claimed for him was the same in substance, as had occasioned the impeachment of one judge already. It certainly would not be unfair to infer, that it was intended to shew that the same cause might again produce the same effect. The idea then of danger to the court from a decision in our favour, when there was no danger, we were bound to repel, whatever might have been the intention with which the observation was made. The gentleman having brought the point before the court in order to prove the impropriety of our argument, and to make the court believe, as we have a right to presume, that the question was different from what it really was, it was at least as fair in me to repel it in defence, as it was in him to urge it as an argument in prosecution, and as much my duty to shew its fallacy, as it would be to explain away and repel any arguments magnifying or destroying evidence. I hope I shall pass over the rest of the argument in a manner more satisfactory to the gentleman. It is not my intention to misrepresent any gentleman's argument or to make improper conclusions with respect to their motives. I do not charge him with any improper designs. I only shewed the consequences flowing from his argument as naturally as water would run from a fountain.

You are called on to decide on our motion. Have you the power to decide on it or not? Is it encroaching on the rights of the jury? Can liberty be endangered by it? If it be a power which belongs to you, it becomes us to shew that it should be exercised; that it is your duty to exercise it. The question is, what is the proper interpretation of levying war? This question belongs to the court. When that question of law is decided by the court, the jury will have to decide, whether the facts proved have brought the conduct of the prisoner within that definition or not. The power of regulating evidence according to law is not and cannot be denied to belong to the court. Does treason make an exception to the general power of the court as to evidence? This is the first time that the objection has been made. That there can be no such objection sanctioned by the law, can be demonstrated in a very few words. Suppose in the case of burglary, a question were to arise what constituted burglary, the court would be the proper authority to give a definition of it. It would have to decide, that burglary consisted of breaking and entering by night into the house with an intention to commit a felony; that there must be a breaking and an entry; that it must be in the night, and with an intent to commit a felony. Suppose the case of a prosecution on an indictment for burglary: suppose on the trial of the accused, there were evidence to shew, that he penetrated into the house not in the night time, but in the day time; and there were no evidence to prove that he broke into the house in the night: ought not the proceedings in such case to

be arrested? Would it not be the duty of the counsel for the accused to move the court to prevent any further evidence from being introduced? Would the counsel for the prosecution be permitted to proceed in the proof of other points? If the fact be, that the house was never broken in the night time, ought the time of the court to be taken up to prove the intentions of the party to have been, to break it open, or to prove any other persons being in the house or any other circumstances? No surely: because such evidence would be irrelevant to the subject before the court. It would be losing time without any object; as the essential fact of its being done in the night could not be supported. Would not the court stop the testimony in that case as irrelevant.

Suppose it was a prosecution for maiming: and on the trial no evidence could be produced to shew that the defendant disfigured the party supposed to be maimed, in the manner described by the legislative acts against that crime, or suppose it appeared that he was not present: when the essential part of the proof was clearly wanting and could not be proved, ought the trial to proceed? Ought evidence of ill will, hostility, or threats to maim the party, to be admitted? On what rational principle could the trial be continued?

We will suppose a prosecution for a riot. According to the definition of a riot the law requires that there should be an assemblage of persons to a certain number, who should do some act of violence. Now I will suppose that colonel Burr was indicted for a riot; and on the trial, there was evidence to prove, that there was a riotous assembly, but that colonel Burr was not there; would the court receive any evidence on the part of the prosecution, to prove, that he was aiding and abetting the riot? or any evidence which did not shew that he was personally present at the riot? An aider or abettor of a riot can not be. To commit a riot, the person must be actually present. He must be a coactor in the riot. The law makes aiders and abettors in riots innocent. It secures to them impunity, because there are no accessories in misdemeanors. In this case of the riot, if there were no other evidence, would testimony of the intention, to procure, aid, abet or counsel be admitted? Would it not be the duty of the court in that case to arrest the irrelevant testimony? But suppose further in the case of the riot, it was proved that there was an assemblage of men, but no act of violence; and gentlemen prosecuting the accused would say, "this assemblage of men, in which colonel Burr was, committed no act of violence; but we will produce evidence to shew, that he had the intention and went thither to commit violence;" would not the court stop the evidence? Most certainly it would be the duty of the court to prevent the further waste of time, by admitting testimony en