ing the intention of the prisoner. It is, indeed, as Foster says, a sound and just rule, that all evidence without the issue, should be rejected: but how can testimony, shewing the intention of Aaron Burr, be said to be without the issue? It goes directly to prove the treason in the indictment.

The doctrine in Smith and Ogden, p. 82. explains the danger of going out of the statement in the indictment, and shews the necessity of preserving the principle, " that the evidence must be pertinent to the issue." The exhibition of proof of Aaron Burr's intentions is within the rule established in the English courts, and the decision in Smith and Ogden.

Mr. Wirt further remarked, that the former decision of this court on this point, which gentlemen had thought proper to refer to as decisive in their favour, could not be rightly so considered: that two material circumstances would justify this conclusion. First, the court at that time wished to avoid such a discussion and display of the evidence as might prejudice the public mind. Second, the court then decided on the law and the fact, and performed the duties of judge and juror. It might decide when it was proper to stop or proceed; be satisfied with the testimony already introduced, or require more. But that now the jury were to decide on the guilt or innocence of the accused, the court had only to state the law on the different points arising in the course of the trial.

Mr. LEE in substance contended, that the act, an open deed of war, committed in the full view of the world, on the 10th day of December, on Blannerhassett's island, if it ever existed, was susceptible of clear proof; that the time, place and manner of com. mitting the offence, as laid in the indictment, were material to be proved; that it was not pretended that the counsel for the prosecution, had any right to exhibit proof of any other treason than that specified in the indictment; that the effect of the facts to be proved, must be discussed hereafter, but that the proof of them, as preliminary to, and the foundation of, other testimony, was indispensably requisite; that it was difficult to describe the absurdity to which the admission of other evidence, before proof of the acts authorising that admission, would lead; that it would be almost as inconsistent and improper, as to attempt to make the effect precede its cause, or according to the vulgar phraseology, to put the cart before the horse; that it would be changing the rules of law; that a great deal of time might be occupied in adducing a great deal of testimony, to charge a man accused of murder, with malignant intentions, when the person said to be murdered, was actually alive; or of arson, when the house alleged to be burnt was standing; that the act existed, or it did not. If it existed, it ought to be immediately proved: if it did not exist,

they ought magnanimously to yield, as they could not produce that testimony which might render all other evidence applicable.

Mr. Lee further dilated with great force and ingenuity; but for the reasons before mentioned, his arguments are necessarily condensed.

Mr. MARTIN spoke to the following effect:

I shall take the liberty of adding a few observations, to what has been already said.

The great question is, whether the prosecutors must not prove an overt act in the first instance, before any other evidence can be introduced? We contend that they must, and that law and reason support us. They admit that colonel Burr must be proved to have committed one or more overt acts; and that the court and jury must be satisfied, that these acts were committed with a treasonable design; that he levied war against the United States, with intent to destroy the constitution and government thereof. This is the true construction of the words " levying war." There can be no "levying war," unless the object and design be the subversion of the government of the United States. It is admitted that both these things must be proved, before he can be found guilty.. The question which results necessarily is, which of them is first to be proved? The very eloquent and ingenious counsel admit, that it is not of much consequence, in which order these facts are to be established; but insist on proceeding as they have done, for two reasons; first, because it is the most correct and usual mode; and secondly, because it is a mark of disrespect to the attorney of the United States, to interfere with his arrangement of the evidence. As to the second cause, which I think proper to answer first, I will only say, that we cannot conceive, why they should have construed the performance of a professional duty, into a manifestation of disrespect for the gentleman. We exercised a right and discharged a duty to our client, in opposing what we deemed an illegal proceeding. How then can he consider himself treated disrespectfully? He certainly has no right to view it in that light. We had no such intention; and I will say further, that if he conduct himself with that mildness and decorum, which ever becomes a public prosecutor, he shall receive from us every mark of respect. As to the first and principal reason urged by gentlemen in support of this mode of conducting the prosecution, that it is the most correct order of proceeding; it might be proper, if it were an indictment for a conspiracy to commit treason, to proceed in the first instance, to prove the intentions: but in this prosecution for treason for "levying war," I confidently say, that the most natural order of proceeding, is, to begin with proving the material act, without which, all other evidence whatso

ever, would be irrelevant and improper. In Great Britain, a conspiracy to commit treason is made treason by a particular statute; that is, "compassing the death of the king," is made high treason. In that particular instance, the intention, the mere act of the mind is rendered, what it is in no other case without an act in pursuance of it, criminal and punishable. In that case, which is in fact a conspiracy to commit treason, the intention of the heart, the formation of the design in the mind is the very crime; and the correct mode of procedure on a trial for it, would be to begin to shew the conspiracy, the number of persons engaged in it, the time when, and place where, they did conspire, and other circumstances connected with the conspiracy: but this applies only to a prosecution on an indictment for compassing the death of the king. In every other case, where a material act constitutes the crime, the prosecutor must begin by proving that act, either by positive testimony or strong circumstances, to shew that the party accused committed it. In a prosecution for treason for "levying war," after the cause is opened, proof of the act should be adduced, as is done in every other criminal case. On a trial for murder, the act of killing must first be proved, if not admitted; in a prosecution for burglary, the nocturnal breaking into the house must be proved; in larceny, the taking and carrying away must be proved; and in a prosecution for robbery, it is necessary to prove the taking by force and violence from the person, before any testimony can be admitted respecting the felonious intention. The true and natural order in all prosecutions is to shew first that the principal act on which the charge depends has been committed.

The gentleman who opened the cause argued it on the princiciples of common sense, which he says is sometimes in discussion not adhered to by lawyers. Let us examine whether he has himself verified this sentiment, and how his doctrine applies to this case. Does not common sense require, that the act which is the very foundation of the charge, should be proved in the first instance? Would it not be absurd to go into evidence to shew that the act was committed with a treasonable intent, without any testimony to prove that the act was committed at all? Is it rational to inquire into the design and intention with which an act has been performed, without proving that it has been performed?

The gentleman who spoke so eloquently against our motion, says, that the jury must judge of the weight of evidence, and that the court cannot stop the prosecutor in his examination of witnesses, and command the jury to find such a verdict as it pleases to require! The general principle is not controverted by us, but we deny the inferences which he has drawn from it. The jury are certainly to decide on the weight of evidence, but the court is to pronounce the law, on what is or is not legal evidence.

Suppose only one witness were introduced to prove the overt act, and it were candidly declared by the counsel for the prosecution that he could prove it by no other witness, would he be permitted then to proceed to examine the intentions of the party accused? Would it not then be the duty of the court to stop him, and tell the gentlemen of the jury, that there was no evidence to convict the accused; that it would be in vain to proceed farther, since it was admitted, that the constitutional requisition of two witnesses to prove the overt act, could not be complied with? We do not contend, that the court has a right to tell the jury, "you must acquit the party;" but it is undoubtedly its duty to expound and enforce the law, and this is all we want to be done.

Permit me again, to recur to the case of a trial for murder. A great deal of the time of the court might be taken up to prove malice on the part of the person indicted, when in truth no act could be proved, when it did not and could not appear that the man supposed to have been murdered was actually dead! This would be a fruitless waste of time. If there be no evidence that the man is dead, there ought to be no inquiry into the design inducing the commission of the overt act, the act of killing. If the death be proved, then the intention and other circumstances are to be examined, and the jury must decide whether he be guilty or not. This is the natural and legal order of proceeding in criminal prosecutions. Hardy's case confirms and establishes the propriety of this mode of proceeding. The first inquiry on that trial was respecting the act charged in the indictment.

Thus, if A. were indicted for killing B. would the legal order be to prove, in the first instance, that, long and frequent animosities had existed between them? The counsel for the prosecution must first prove, that B. has been killed by some body. If there be any doubt as to the person who killed him, it must be proved who did kill him. If it be proved that A. killed B. then, and not till then, more evidence is necessary to explain the motives and circumstances of the killing; because the law presumes prima facie, that a man who kills another, does it with malice prepense, and therefore he must take off by his proof, this presumption of the law. In the case of larceny, as for instance, for horse stealing, you prove the horse to have been taken from the owner, and found in possession of the party accused. After proving the principal fact, you go into evidence of the intention with which the horse was taken. Does the public prosecutor go into proof of the felonious intention, before proving that the horse has been taken? So in the case of burglary, is it the natural order of testimony, to prove that the accused intended to break and enter into the house, in the night time, to steal or to commit any other felony? Is it not the most natural order, to prove first, that he did actually break and enter the house, and then by evi

dence to shew, that he entered with no other view than to commit a felony. So on a trial for treason, for importing false or base foreign coin, knowing it to be such, does the prosecutor, first call witnesses to prove, that the prisoner knew the coin to be base? Does he not first prove the importation? Would it not be preposterous to go into proof of his knowledge of its baseness, without proving that he imported it? The same remark applies to a prosecution for passing false or counterfeit coin, knowing it to be false or counterfeit. Would not the prosecutor first prove, that he passed it, and then shew by testimony, that he knew it to be base when he passed it? In both cases, he first proves the principal fact, without which all other testimony would be useless; and then proves the circumstances which shew that the prisoner must have known the money to be base when he imported or passed it. They charge us with having committed treason in "levying war" against the United States. This charge is too vague, and must be supported by full testimony according to the well known principles of the law. Here let me mention, that the question, whether any other act committed at a time and place different from those stated in the indictment can be introduced in evidence on this trial, is a distinct question from that now before the court; which is merely, what is the proper order of introducing the evidence in support of the indictment?

Let me advert to the case of Hardy. It was an indictment for compassing the death of the king, which as I have already mentioned, is distinguishable from all other cases, in this, that the intention constitutes the crime. In that case, "what is the natural and lucid order" of evidence, is expressly laid down. There were several persons prosecuted in the same indictment. It charged them "First, with a conspiracy to compass or effect the king's death. Secondly, with endeavouring to effect that object, by means of an insurrection, or inciting the insurrection with that settled design." The court determined, that the legal order of proceeding and admitting evidence, after having proved the existence of the conspiracy, was to prove the connexion of the person accused with the conspirators; and then to charge him with the acts of the conspirators; that after proving his connexion with them, he was liable to be charged with any of their acts. In that case, the intention constituted the crime, and the connexion between the conspirators was first proved, before the acts of one were admitted to be given in evidence against another. But this mode of proceeding, is only admitted in the case of a conspiracy, or an indictment for imagining and compassing the king's death. But in an indictment for "levying war," the acts of one person have never been admitted to be given in evidence against another; the overt acts must be proved against every individual accused. This distinction has been established