names of the accomplices in connexion with whom the treason has been committed are to be inserted, and objects to its being stated, that they are unknown, I will adduce several other cases, entitled to equal credit, where the names of the accomplices were not in the indictment. In 6 State Trials, page 60, the indictment against Francis Francia charges that he conspired and agreed with divers persons to the jurors unknown to commit the treason therein specified.

In the indictment against Christopher Layer, 6 State Trials, 229, he is charged with compassing the death of the king, and that "he did, with divers false traitors to the jurors unknown, traitorously, &c. conspire, &c. to raise, levy and move rebellion and war against the king."

The indictment against Elizabeth Gaunt, 4 State Trials, 142, in like manner charges that she conspired the death of the king, with divers false traitors and rebels to the jurors unknown.

The name of the accomplice is also omitted in the indictment against Thomas Rosewell, in 3 State Trials, 997.

In the same manner the indictment against John Hampden states, 4 State Trials, 207, that he conspired the death of the king with divers other false traitors unknown; and in the same volume, page 131, both John Fearnby and Henry Cornish are each of them indicted for conspiring and compassing the king's death, with divers false traitors and rebels unknown to the jury, though the former is charged with harbouring James Bunton a traitor, and the latter with harbouring Joseph Halloway and Henry Lawrence traitors; and in the indictment against John Fries, he is charged to have committed the offence with a great multitude of persons, whose names are unknown to the jury. The gentlemen have referred the court to a great number of authorities, for the purpose of shewing what treason is. I shall not deem it necessary to go through an examination of all their authorities, defining the crime. I shall content myself with believing, that it is impossible to give the court any information respecting the essential definition of this offence, which it does not already possess; but I will observe that the authorities I have just referred to from the State Trials, Foster, Bacon and East to shew that it is not necessary to charge the war to be a public war or improper to state that the crime was committed in connexion with persons unknown, also will go to prove that an overt act of treason may be committed without actual force. I consider it as completely proved by the opinion in the case of Bollman and Swartwout, that if an unlawful assemblage of men meet together for a treasonable purpose, it is not necessary that arms should be in the hands of those who are concerned, in order to make them traitors. I have imagined that their meeting together in this manner (in military array) would be suffi

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cient to shew that their purpose was treasonable. I have supposed that assembling men for a treasonable purpose would constitute an act of treason. I consider the reasoning of East as conclusive on this subject, where among other things, he says, "that any assembly of persons met for a treasonable purpose, armed and arrayed, in a warlike manner, is bellum levatum, though not percussum." "Inlisting and marching are sufficient overt acts, without coming to an actual engagement," and "that numbers will often supply the want of military weapons and discipline, as experience has often evinced." The opinion of judge Chase, in his charge to the jury on the trial of Fries, page 197, is nearly to the same effect [vide ante.] I do not believe, that the supreme court, if it had formed deliberately the opinion which it gave in Bollman and Swartwout, as the only true and proper definition of the crime, now charged and proved before it, would have given a definition varying from it, as that opinion is so extremely apposite to the case now before the court. "The travelling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies of men and their marching from places of partial, to a place of general rendezvous, would be such an assemblage." Is not this the very case which is before the court? It is not the equivocal act of individuals travelling singly to the place of rendezvous. Have not these men gone from Blannerhassett's island the place of their partial, to the mouth of Cumberland the place of their general rendezvous? Did not another body of men meet at the latter place those who went from the island? This definition comes most completely up to this case. There are particular bodies of men, different places of partial rendezvous, and a general place of rendezvous; and they march from the former to the latter. A reference to the evidence will prove this to be most indisputably true. There was unquestionably an assemblage on the island, which afterwards formed a part of the general meeting at the mouth of Cumberland. Though it is my opinion, that it is not necessary to prove that these men were armed, yet it is not transcending the evidence in the cause, to say, that they were armed. Several witnesses prove they had a considerable number of arms with them, and that they used those arms. One person said that there were arms enough for all those who were on the island; and several persons proved that they were prepared to defend themselves. When this evidence is connected with the proof of their having boxes of arms afterwards, without any thing to shew, that they received those arms after leaving the island, the presumption is strong and violent, that all on the island were armed. I ask what character do these things give to these transactions? Are they not sufficient to constitute a military appearance or warlike posture? the

speciem belli? As their intentions were traitorous, were they not guilty of treason according to the opinion of the supreme court? I should suppose that as we have proved, or to speak more correctly, were prepared fully to prove, to the satisfaction of the jury, that the overt act laid in the indictment has been committed, we have a right to adduce, in confirmation or corroboration thereof and to shew the intention of the party committing it, proof of other overt acts not laid in the indictment. This has been fully established by authorities. In addition to Deacon's case and other cases from Foster, from State Trials and other authors which have been heretofore read to the court, I refer to 1 Dallas's Rep. page 35, where it was ruled by the court, in the case of the Commonwealth v. Mulin, " that evidence might be given of an overt act, committed in another county, after an overt act was proved to have been committed in the county where the indictment was laid and tried."

This is the evidence, by which Mr. Wickham fears we can abundantly prove the guilt of his client, and hence his anxiety, hence the greatest exertions of his eloquence and talents to exclude this testimony.

If gentlemen contend, that sufficient proof of the overt act has not yet been produced and that therefore we have no right to introduce corroborative evidence and that the court ought to judge whether the overt act be proved; I am sure this court will not undertake to decide whether the evidence amount to a proof of the overt act and to decide on the weight of evidence and thereby usurp the rights which belong exclusively to the jury.

There is so evident an impropriety in the court deciding on the competency of the evidence to establish an overt act, that I should suppose it would be barely sufficient to mention it to be convinced of it. But though I think the point so clear, and though I have already detained the court too long, I hope to be excused for introducing one or two authorities, which seem to be conclusive, if indeed any authority be necessary in so plain a case. I will read a few sentences from East's Crown Law, page 66, 67, to shew that this is a question proper for the jury alone to decide, and that it is a question of fact which cannot regularly be taken from them: "It must in general be difficult, in the inception of intestine troubles, to fix the period when opposition to the established government shall be said to wear the formidable appearance of insurrection, and to constitute, what in the terms of the act, is called a levying war against the king.

"It is strictly, therefore, a question of fact, to be tried by the jury, under all the circumstances;" and in support of his opinion,' he refers to Hale, Foster, the State Trials and Salkeld.

This doctrine is also supported by the opinion of judge Iredell, in Fries's trial, page 175, “It is not for the court to say

whether there was a treasonable intention or act, as charged in the indictment; that is for the jury to determine; we have only to state the laws, we therefore should have no right to give our opinion upon it." "A jury must give a verdict upon all the evidence collectively; if the evidence is admitted, then the jury is bound to respect the weight of it; the competency of that evidence is for the court to decide, but the jury must estimate its weight."

These authorities appear to me to establish this point conclusively; if any thing be necessary to be superadded, I refer to the opinion of the court, heretofore declared, as I understood it: that "the levying of war is a fact" which must be decided by a jury. If it be a question compounded of fact and law, it ought also to be decided by the jury.

According to the laws of England if they are to be considered as in force in this country, according to the common law if the common law have any force here, or according to the constitution of the United States, this indictment has been properly preferred against the prisoner. I trust that enough has been said to shew, that we have disproved the two points, attempted to be established by the counsel for the prosecution; and that the overt act committed on Blannerhassett's island will justify you in permitting us to bring forward all the rest of our evidence. The court then adjourned till to-morow.

TUESDAY, August 25th, 1807.

Mr. WIRT then addressed the court thus:

It is my duty to proceed on the part of the United States, in opposing this motion. But I should not deem it my duty to oppose it, if it were founded on correct principles. I stand here with the same independence of action, which belongs to the attorney of the United States; and as he would certainly relinquish the prosecution the moment he became convinced of its injustice, so also most certainly would I. The humanity and justice of this nation would revolt at the idea of a prosecution, pushed on against a life, which stood protected by the laws; but whether they would or not, I would not plant a thorn, to rankle for life in my heart, by opening my lips in support of a prosecution which I felt and believed to be unjust. But believing, as I do, that this motion is not founded in justice, that it is a mere manœuvre to obstruct the inquiry, to turn it from the proper course, to wrest the trial of the facts from the proper tribunal, the jury, and embarrass the court with a responsibility which it ought not to feel, I hold it my duty to proceed for the sake of the court, for the sake of vindicating the trial by jury, now sought to be violated, for the sake of full and ample justice in this particular case, for the sake of the future peace, union and independence of these states, I feel it my

bounden duty to proceed; in doing which, I beg that the prisoner and his counsel will recollect the extreme difficulty of clothing my argument in terms which may be congenial with their feelings. The gentlemen appear to me to feel a very extraordinary and unreasonable degree of sensibility on this occasion. They seem to forget the nature of the charge and that we are the prosecutors. We do not stand here to pronounce a panegyric on the prisoner, but to urge on him the crime of treason against his country. When we speak of treason, we must call it treason. When we speak of a traitor, we must call him a traitor. When we speak of a plot to dismember the union, to undermine the liberties of a great portion of the people of this country and subject them to a usurper and a despot, we are obliged to use the terms which convey those ideas. Why then are gentlemen so sensitive? Why on these occasions, so necessary, so unavoidable, do they shrink back with so much agony of nerve, as if instead of a hall of justice, we were in a drawingroom with colonel Burr, and were barbarously violating towards him every principle of decorum and humanity?

Mr. Wickham has indeed invited us to consider the subject abstractedly; and we have been told, that it is expected to be so considered; but sir, if this were practicable, would there be no danger in it? Would there be no danger, while we were mooting points, pursuing ingenious hypotheses, chasing elementary principles over the wide extended plains and Alpine heights of abstracted law, that we should lose sight of the great question before the court? This may suit the purposes of the counsel for the prisoner; but it does not therefore necessarily suit the purposes of truth and justice. It will be proper, when we have derived a principle from law or argument, that we should bring it to the case before the court, in order to test its application and its practical truth. In doing which, we are driven into the nature of the case, and must speak of it as we find it. But besides, the gentlemen have themselves rendered this totally abstracted argument completely impossible, for one of their positions is, that there is no overt act proven at all. Now, that an overt act consists of fact and intention has been so often repeated here, that it has a fair title to justice Vaughan's epithet of a " decantatum." In speaking then of this overt act, we are compelled to inquire, not merely into the fact of the assemblage, but the intention of it, in doing which we must examine and develop the whole project of the prisoner. It is obvious therefore, that an abstract examination of this point cannot be made; and since the gentlemen drive us into the examination, they cannot complain, if without any softening of lights or deepening of shades, we exhibit the picture in its true and natural state.

This motion is a bold and original stroke in the noble science VOL. II.

H