Mr. HAY.-Will you state what you know about their number and arms?

Answer. On the evening of the 10th of December, I understood that the boats were to start with Comfort Tyler and his men down the river. Two other young men and myself were determined to cross over from Belpré, where I live, to the island. We went down to the landing opposite the island about dusk, took a skiff and landed at the upper part of the landing. We then went up to the house. Tyler's boats lay below our own about seven or eight rods. I heard some person talking on board, but it was dark, and I could not distinguish any one. We went into the hall, a large room, where there were a number of men. I remained but a short time and did not count them. I

cannot say how many there were, but I should judge there were about fifteen or sixteen. One of them was running some bullets; and there was nothing but hub-bub and confusion about the large fire. I was then introduced into a chamber, where there were colonel Tyler, Blannerhassett, Mr. Smith of New-York as they said, and three or four other gentlemen. I was introduced to Mr. Smith and Doctor M Cassley (or M'Castle) who had his lady, if I mistake not, there. I had been introduced to colonel Tyler the day before.

Mr. RANDOLPH.-Were you a perfect stranger to the people in the hall?

Answer. I was.

Question by the same. Was there any alarm on your going in? Answer. They did not appear to be alarmed.

Mr. Coleman (one of the jury) addressed the court. Is it proper to ask any questions about the conversations which took place with those gentlemen?

CHIEF JUSTICE.-It is left to the consent of the accused,

Mr. BURR.-If any of the jury think proper, I have no objection. The inquiry was not pressed.

Before the examination of Mr. Belknap and Mr. Dana, an interesting and animated discussion took place at the bar.

Colonel BURR and his counsel objected strongly to the introduction of collateral evidence, and insisted strenuously, that the counsel for the prosecution should adduce, without further delay, all the testimony which they had, relating to any overt acts alleged to have been committed; that they had already submitted to too much irrelevant evidence; that it could not be denied, that colonel Burr was at a great distance, in the state of Kentucky, when these acts were alleged to have been committed on Blannerhassett's island; and that the relevancy or irreleVOL. I.

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vancy of the collateral proof offered, depended entirely on the existence of those acts. They insisted, that notwithstanding the numerous efforts and prejudices which had been so artfully and zealously excited, and so industriously spread throughout the country, there had not been any act of war, tumult or insurrection, nor even the semblance of an overt act; that they had a right to have the opinion of the court on the subject, and would insist on exercising it, as soon as the testimony, relating to the overt acts of this pretended war, was all introduced; and if gentlemen had any more such, they insisted on its immediate production, or that they would proceed to make their intended application to the court.

The counsel for the prosecution opposed this mode of proceeding. They contended, that it was unusual, irregular and improper; that the whole evidence should be submitted to the jury, whose province it was to decide whether, according to the exposition of the law by the court, there had been war or not; that the counsel for the accused might, when the whole should have been laid before the court, move the court to instruct the jury on the law, or make such other motions or propositions, as they might deem proper; that to decide whether overt acts had been committed or not, was an inquiry of fact, not of law; that though the court had a right to expound the law, and explain what in law constituted an overt act, yet it could not stop the prosecution, and say to the jury, that no overt act was committed; that it was evident that the object of attempting thus to arrest the inquiry, was to prevent the public from seeing and knowing what had been done, and which ought to be known; that the question was not, where the accused was when the treason was committed, but whether he procured it or had a part in it? and that as the objection of the accused to the evidence offered by the prosecution was irregular and improper, it ought to be disregarded by the court.

It was admitted that colonel Burr was in Kentucky at the time when the acts charged in the indictment were committed. It was stated that several witnesses were present ready to prove it.

After some further desultory remarks at the bar,

The CHIEF JUSTICE said, that there was no doubt that the court must hear the objections to the admissibility of the evidence; that it was a right, and gentlemen might insist on it: but he suggested the propriety of postponing their motion.

Mr. HAY admitted their right to object to the introduction of evidence; but contended, that the course they now adopted was irregular. He stated that they had some other witnesses to examine on the same point, whom they wished to introduce.

As soon as Messrs. Belknap and Dana were examined,

Mr. BоTTS moved the court to direct the marshal to make payment daily of their allowance to about twenty witnesses, summoned for the accused, most of whom were so poor, that they could not subsist without it. He had hoped the marshal would have paid them without this application. Colonel Burr thought them material, and summoned them from the best information he could obtain; and when the United States even imprisoned witnesses to compel their attendance, those of the accused ought at least to be supplied with the means of subsistence.

The marshal said that as the number of witnesses was so great, and many of them were said to know nothing of the subject in controversy, he was cautioned by the attorney for the United States, not to pay them till their materiality was ascertained, or till the court ordered him.

Mr. HAY said that the expenses were so enormous, that they would be felt by the national treasury, though it was full. This justified the caution alluded to; and the laws contemplated to pay the witnesses as soon as they gave their evidence.

Colonel BURR said, that when the attorney cautioned the marshal, it was supposed that he had summoned between two and three hundred witnesses, whereas the truth was, that they did not exceed twenty; that they were material; that some of them were summoned to repel what might be said by the witnesses for the United States; that the United States had many advantages in commanding the attendance of their witnesses, which he had not; that he would not acquiesce in the establishment of a principle that might prove injurious to others; that the witnesses ought to be paid, and he hoped that there would be no more difficulty made on the subject.

After some more desultory observations, as the witnesses were stated and considered to be material, the court directed the payment to be made by the marshal.

Mr. WICKHAM then renewed the subject of objecting to the evidence; and again urged the gentlemen who prosecuted, to adduce, if they could, any more testimony in support of what they deemed the overt acts.

Mr. HAY objected to their course of proceeding, but added, that he had only one or two more witnesses on that point, who were then absent, and if gentlemen were determined to make their motion, they might proceed.

Mr. WICKHAM then addressed the court.

May it please the court: The counsel for the prosecution having gone through their evidence relating directly to the overt act charged in the indictment, and being about to introduce collateral testimony of acts done beyond the limits of the jurisdiction of this court, and it not only appearing from the proofs, but being distinctly admitted, that the accused, at the period when war is said to have been levied against the United States, was hundreds of miles distant from the scene of action, it becomes the duty of his counsel, to object to the introduction of any such testimony; as according to our view of the law on this subject, it is wholly irrelevant and inadmissible.

It is not without reluctance that this measure is resorted to. Our client is willing and desirous, that at a proper time, and on a fit occasion, the real nature of the transactions which have been magnified into the crime of treason, should be fully disclosed: and unless he be greatly mistaken, it is now in his power to adduce strong and conclusive testimony in direct opposition to that which has been relied on in behalf of the prosecution. But if we may calculate from the time that has been already consumed in the examination of the small number of witnesses that have yet been introduced, out of about one hundred and forty, that have been summoned on the part of the United States, it is hardly possible, that an opportunity will be afforded him of calling a single witness before this jury. Weeks, perhaps months, will pass away, before the evidence for the United States is closed; and at this unfavourable season, nothing is more likely than that the health of some one, and perhaps more of the jury will be so far affected by the climate and confinement, as to render it impossible to proceed with the trial. Should such an event happen, the cause must lie over, and our client, innocent, as we have a right to suppose him, may be subjected to a prolongation of that confinement which is in itself a severe punishment. The jury too are placed under very unpleasant restraints, and it would be an act of injustice to them, as well as him, to acquiesce in a course of proceeding, which would draw out the trial to an immeasurable length; and which we conceive to be neither conformable to the rules of law, nor consistent with justice.

Hitherto the counsel for the United States have taken frequent occasions to declare their belief of the guilt of the accused. On the motion I am about to make, arguments drawn from this topic will have no application. The question will turn on abstract principles, which will neither be changed nor affected by his innocence or guilt. The foundation on which this prosecution must rest, and which I should hope had not been seen or attended to by the counsel for the United States themselves, will

be exposed to view; and it will be for them to determine, whether it shall be abandoned, or maintained by doctrines incompatible with our republican institutions, and utterly inconsistent with every idea of civil liberty.

In combating these doctrines, we shall, so far as we are able, support the cause, not of our client alone, but of every citizen of the United States, and of future generations; for as to the establishment of the principle, it ought not to be considered as his cause alone, but as the cause of every member of the community and of posterity.

The first position I shall lay down, is, that no person can be convicted of treason in levying war, who was not personally present at the commission of the act, which is charged in the indictment as constituting the offence.

The 3d section of the 3d article of the constitution of the United States, declaring that "treason shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort" and that "no person shall be convicted, unless on the testimony of two witnesses to the same overt act," there can be no doubt, if the words be construed according to their natural import, that it is necessary, in order to fix the guilt of the accused, to prove by two witnesses, that he committed an act of open hostility to the government, at the place charged in the indictment.

But artificial rules of construction, drawn from the common law and the usages of courts in construing statutes, are resorted to in order to prove that these words of the constitution are to be construed, not according to their natural import, but that an artificial meaning, drawn from the statute and common law of England, is to be affixed to them, totally different.

In the first place, I deny that any such rules of construction, however just they may be when applied to a statute, can be properly used, with reference to the constitution of the United States.

This instrument is a new and original compact between the people of the United States, embracing their public concerns in the most extensive sense; and is to be construed, not by the rules of art belonging to a particular science or profession, but, like a treaty or national compact, in which the words are to be taken according to their natural import, unless such a construction would lead to a plain absurdity, which cannot be pretended in the present instance."

It being new and original and having no reference to any former act or instrument, forbids a resort to any other rules of construction than such as are furnished by the constitution itself, or the nature of the subject. If I be correct in this, there is an end to all further inquiry. It is not necessary to resort to