Wood county, made a precipitate retreat by night, in company with Blannerhassett, and went down the Ohio to the mouth of Cumberland river, where the accused joined them and took the command. By this time their numbers increased to about one hundred. These men under the command of Burr and Blannerhassett, descended the Mississippi to Bayou Pierre, a point not far from Natchez. It was here, gentlemen of the jury, that he first learned that all his schemes would be frustrated by the exertions of the commander in chief; that his letter in cypher had been communicated to the president; and it was here that in the first moment of surprize, he expressed to another person his astonishment and indignation, at being (as he said) thus betrayed. Finding that the commander in chief, had baffled all his schemes, by communicating his letter to the president, he entered into a kind of capitulation with Cowles Meade, was bound to appear before a tribunal at Natchez, from whence, it is said, he came off without leave of the court, in violation of his recognisance, and in his flight was taken by Perkins.

It will be proved to you, by express and direct evidence, that a settlement of lands on the Washita, was merely a cover to conceal the real design, which was to separate the union, take possession of New-Orleans, and attack the Spanish provinces. But the utmost mystery and circumspection prevailed on this subject. To the world at large, and to those with whom he had not tampered, the object was held up to be, the settlement of lands up the Red river. To some, intimations were dropped, of an approaching rupture with Spain, against whose provinces the expedition was intended, and the conquest of Mexico was alluded to; his language varied according to the character of the man with whom he conversed. To a few only his real design was developed; but to all he said that there was a great scheme in view. All were told, that the design was just and honorable; known and approved by the government; in which the cooperation of the army was to be expected; in which great wealth was to be acquired, and that it would be developed as soon as the proper time for the disclosure arriv. ed. The time, however, never did arrive. At Blannerhassett's island, they were told, that it was not the time, but that when they came to the mouth of Cumberland, they should be informed. When there, some of them, whose intentions were really honest, who were not disposed to violate the laws of their country, and who were induced to join him by the expectation of acquiring wealth, by laudable and honorable enterprise, were anxious and endeavoured to know, what was the real design: but circumstances, they were told, were such, that it could not yet be communicated. Ignorant people were led away from VOL. I. 3 L

their homes, under a belief that they would be speedily informed of the whole project. The information was promised, but never imparted. The consequence was, that when Mr. Burr was apprehended, they were left to find the way back to their own homes, by any means in their power.

Chimerical as this project was, there was only one single thing wanting to its accomplishment; the cooperation of the commander in chief, and of the American army. If general Wilkinson had acted as some have represented, if he had acted the part of a traitor instead of performing the character of a patriot, I ask what would have been the situation of this country at this moment? There would have been a civil war raging in the west; and the people of the United States, united as they are, by interest, by sympathy and blood, would have been involved in a sanguinary contest with one another; while our eastern coasts would have been insulted and ravaged by an insolent and rapacious foe, in consequence of their knowledge of our divided situation. From this calamity in the west, we have been protected by the vigilance and integrity of the commander in chief. I care not how my declaration may be considered; but I will venture to assert, that from the adoption of the federal constitution, till this time, no man has rendered more essential service to the people and government of the United States, than general Wilkinson has done, by counteracting and defeating this project. Yet, for this service, eminent and important as it is, he has been as much censured, abused, and calumniated, as if he had joined in it.

It is not for me to anticipate the defence which will be made for the accused, but I presume I may speak of the defence which he has made. He stated himself, while under examination, that his scheme was peaceful and agricultural. If this ground shall be again taken, it will be extremely easy to satisfy you, by a variety of circumstances, that this was not the scheme contemplated by those engaged in that expedition. I intend hereafter, if necessary, to enter into an enumeration of those circumstances, but at present I feel myself too much exhausted to detail them.

I have observed, that you would enter upon this inquiry with candour and patience, and I must hope too with firmness. You will contemplate and decide this question, on the same principles, under the same laws, and in the same manner, as if the question were between the United States and the most ignorant and deluded of those concerned in the scheme. It is true, that the prisoner has been vice-president of the United States; he has been the second in office in the government of this country, and perhaps the second in the confidence and affection of the

people; and that he possesses talents and energies, which at the approaching crisis, might have been employed most honorably for himself, and most usefully for his country: but these circumstances rather aggravate than extenuate his guilt, if he be guilty. In other countries, a discrimination may be made between different classes of the community; it is not often that the laws of society operate upon men of this stamp in those countries. Lord George Gordon, the miserable fanatic, who marched at the head of the rioters in London in the year 1781, was discharged, while eighteen or nineteen of his poor deluded followers paid the forfeit of their offences, and were punished for his crimes. I call upon you, gentlemen of the jury, to disregard all such distinctions in this land of liberty, equality and justice; and to view this case, in the same light in which you would regard it, if any other man in the community were brought before you. I call on you to do justice and to decide the cause according to the evidence which will be produced before you.

After Mr. Hay concluded, some desultory observations were made by the counsel on both sides, with respect to the accommodation of the jury, and the times of meeting and adjourning the court, during the trial. Some arrangements were proposed for the jury; that they were to occupy convenient rooms in the capitol at night, and in the recess of the court; that for the sake of exercise, they might walk out in a body or separately, if accompanied by the marshal or one of his deputies; that they might send or receive letters, if shewn to the marshal: but that all letters should be laid before the court, which should appear to relate to the trial, and be designedly sent to influence their verdict. These arrangements were not adopted at this time, but their consideration postponed, all parties being desirous to accommodate the jury as much as possible, consistently with the necessity of keeping them together, secure from intrusion.

On the question, how long the court ought to be occupied every day during the trial, colonel Burr expressed a wish, that the court, should for the sake of expediting business, meet at as early and adjourn at as late an hour as possible. He referred to trials in England, where the court sat twelve and sixteen hours every day; and proposed that the court should sit ten or twelve hours each day. This was opposed as too long, fatiguing and oppressive in such warm weather.

The CHIEF JUSTICE said, that the court had no wish on the subject, but was willing to consult the convenience of the gentlemen of the bar, and the accommodation of the jury.

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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 two 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