Mr. HAY observed that it would be necessary to give evidence to show the temper of mind of the accused: as for instance, Mr. Stoddert would show his hostility to the administration, and even to the government. To show this disposition of mind might lead to treasonable designs, to plans, and thence to overt acts. This was the natural order of things, and of the evidence. He hoped, that in drawing out this evidence, the court would rely upon his candour and humanity, that he would produce none which he did not believe to bear upon the fact.

Mr. RANDOLPH said, that however he might respect that gentleman's humanity, he knew too well the temper of any proseaution to expect much from it. They are for strict law, said Mr. Randolph, and so are we. In England, before a witness is heard, it must be stated in general terms what he intends to prove. The same practice ought to prevail here. Let the attorney for the United States state the substance of each part of the testimony he is to produce, and the court will then perceive, whether it is calculated to bear upon the case itself, or whether it is only intended to inflame the public prejudices against colonel Burr. We demand, that the overt act be first proved: without that, the accessorial evidence is of no kind of use. Let that be established, and the accessory facts will then have their weight. I hope, sir, if the attorney for the United States does not introduce his evidence on that point, we shall be at liberty to suppress all the irrelevant testimony.

Mr. BOTTS said he should leave it to the court.

Mr. HAY.-Agreed.

The CHIEF JUSTICE decided, that the attorney for the United States might pursue whatever course he thought best.

Mr. BOTTS.-Send us the written testimony before you submit it to the court.

Mr. HAY.-As I said before, I shall take up the depositions first, and then the viva voce testimony in a chronological order. I shall first introduce general Wilkinson's deposition.

Some desultory conversation then ensued, between Mr. Hay and Mr. Botts, on the latter demanding the liberty of examining the deposition. At length, Mr. Hay handed the paper to him. Mr. Botts then addressed the court.

Mr. BOTTS. In my objections to general Wilkinson's affidavit, I may be compelled to question the correctness of principles, in favour of which the court has expressed an impression. It has been our misfortune, to have been drawn out into a desultory discussion of some of the propositions, fixing limits to the examination; when these propositions had such relation to each other,

and among themselves, as to render it difficult to fortify one effectually against assault, without the support of the others. And although the subject was not wanting in novelty or importance, to fit it for solemn argument, yet the complaints of the prosecutor, so often, so loudly, and so causelessly repeated, have forced from the court a premature intimation of judgment. I feel the perplexity of my situation most sensibly, and shall hope for the indulgence of the court, if I should unwarily stray into the seeming indecorum of resisting, now and then, an inclination of the mind of the bench. Whenever I venture into a scene so delicate, I shall present to the court authorities not to be resisted.

The opinion of the supreme court overruling the objection, that the oath administered to general Wilkinson was extrajudicial, fixes the law for this court. The best evidence that the nature of the case will admit of, should be produced. This rule applies to every stage of every case in every court. The failure to produce the best evidence that the nature of the case admits of, furnishes a presumption, that the higher evidence left behind, would, if produced, make against the party offering the weaker. All this is familiar in civil cases, where 40s. may be the quantum of interest in litigation. The benefit of this common law, and common sense, ought not to be lost, when the liberty of a citizen is concerned; when a six months' imprisonment in a dungeon may be the object of the motion. The supreme court considered an affidavit as the best evidence the case then admitted of. The accusation was fresh, and neither time nor means had been allowed for procuring a personal attendance. Now, the accusation is old, and the government has had all the necessary means of bringing the witness here. The circumstances do, therefore, now admit of higher evidence than an ex parte affidavit.

The viva voce testimony of general Wilkinson is the right of my client. No man should be deprived of the benefit of a cross examination, without necessity. You have in another place said, sir, that it was to be made out only by inference from general Wilkinson's affidavit, that colonel Burr was the writer of the letter in cypher. If the witness was here, he would impugn that inference, by swearing that it was not in colonel Burr's hand writing. If general Wilkinson was present, would you admit his affidavit? If he ought to have been present, and the government would not get him, shall the prosecution be favoured for its negligence?

But the present charge is confined to high treason, in levying war against the United States; and the great question is, whether Wilkinson's evidence is in any form pertinent to the charge? I do not mean to urge the objection, that if it develops any criminal purpose, it is not a treasonable purpose; for this construction has been settled by the supreme court. Admitting for the time, that it contained evidence of a treasonable purpose, and that the

opinion of the supreme court is to be overruled, still the evidence would be most impertinent upon the present charge of actual

treason.

I have alluded to legal propositions, intended to be pressed, as forming legal restrictions upon the task in which we are engaged. I will first combine them, that their fitness to each other, and their collective effects, may be seen. My second process will be to disunite them, and by an analytical comparison of them with the known principles of our treason laws, to ascertain their legality.

No evidence of any matter ought to be given, until proof shall be adduced, that there was an actual war levied in the district of Virginia; and, until it is proved that an overt act of treason, in that war, was done by colonel Burr, which proofs shall be by two witnesses at least. First, It must be proved that there was an actual war. A war consists wholly in acts, and not in intentions. The acts must be in themselves acts of war; and if they be not so intrinsically, words or intentions cannot make them so. In England, when conspiring the death of the king was treason, the quo animo formed the essence of the offence; but in America, the national convention has confined treason to the act. We cannot have a constructive war within the meaning of the constitution. An intention to levy war, is not evidence that a war was levied. Intentions are always mutable and variable; the continuance of guilty intentions is not to be presumed. If this were not the case, the avowal of a purpose to levy war would fix the crime. For a proved intention might be attached to the next innocent act of the person who formed it; and so, preparations of emigration be turned into a levying of war. It has been eloquently declared, that war cannot exist in a closet, or a corner; but when levied, it must be in the face of the world. This cannot be true, if the recesses of the bosom are to be explored for any of the ingredients in the composition of the crime of levying war. The guilty intention must be made manifest from the act alone. General Wilkinson professes to know nothing but of intentions, which are not evidence of acts.

Secondly, The war must not only have been levied, but colonel Burr must be proved to have committed an overt act of treason in that war. A treasonable intention to cooperate is no evidence of an actual cooperation. The acts of others, even if in pursuance of his plan, would be no evidence against him. It might not be necessary that he should be present, perhaps; but he must be, at the time of levying the war, cooperating by acts, or, in the language of the constitution, be committing overt acts. The acts of associates, in a treasonable plan, in countries where the doctrine of constructive war prevails, can never be given in evidence, against the accused, until after the plan has been proved on

the latter, and until such acts shall appear to have been within the limits of that plan. 1 East's Crown Law, 96, 97. Part of the proof in this affidavit is of the declarations of a supposed associate, as to what the plan itself was. But in this country, as there cannot be a constructive treasonable war, plans, and acts of associates, can only come in when the former have been executed, and the latter have been visibly and publicly assisted. Tucker's Black. vol. 4. Appendix B.

Thirdly, The overt act by the accused, in an actual war, must not only be proved, but it must be proved to have been committed within this district. The fifth article of the constitution of the United States, and the eighth article of the amendments to the constitution, require, that the trial shall be by a jury of the district where the offence was committed. The oath of the grand jury is, accordingly, to inquire of offences within the district. The jurisdiction of this court is also limited, by express law, to offences within the district; and it is obviously true, that the court's jurisdiction cannot be broader in an incipient inquiry than it would be in its connexion with a jury on a final trial. Doctor Blackstone, in the fourth volume of his Commentaries, 303, refers to the oath of the grand jury, "to inquire" into offences committed within the body of the county, and denies the right of the grand jury to inquire into facts out of the county. In preparing a work for the grand jury the court cannot disregard the limits of their power. The crime to be committed in the district must be wholly committed there. At the common law, if the stroke was given in one county, and the person striken died in another, the murderer could not be prosecuted in either. To remedy this defect, and to provide for others similar to it, many provisions have been made by the English parliament. 4 Black. 303, 4, 5. But the English parliament never did alter the common law, as it respected the crime of levying an actual treasonable war. Kelyng, 15. The constitution and act of congress have both adopted the rule of location. Tucker's Blackstone, vol. 4. Appendix B. 49, 50, 51. Granting then, that intention may make that war, which would not otherwise be so, still, as a formed intention is no proof of its own continuance or execution, the intention must be proved to have been cotemporaneous and homogeneous with the act in the district. In this view, the intention forms a constituent part of the offence. If one constituent part of the offence can be brought from without the district, and coupled with others in the district, any one constituent part, or number of constituent parts, of the crime, may be brought from without the district. Then one component part only happening in Virginia, out of one hundred necessary to its completion, would give this court jurisdiction; and thence one, out of one hundred parts of a crime, would be a crime within the meaning of the constitution. Let us view the consequences of this logic.

VOL. I.

M

Upon proof against colonel Burr touching a crime, part of which was committed in this district, he may be tried and ac quitted. In Ohio he may be indicted, and evidence may be prepared touching the same crime. Can he plead autrefois acquit in bar, by averring, that the crimes charged in the two states was one and the same? His averment would be against the record of the indictment charging a complete separate crime in each district. Will you, sir, put upon the constitution such a construction as will subject a citizen to be hunted down, by trial after trial, in state after state, as long as the persecuting spirit of a wicked executive may last? Do not understand me to allude, in this, to the present administration, the characters of which I have been in the habit of admiring; but the construction now to be fixed must go down to posterity, and may be made instrumental in effecting the worst of state oppressions.

Remember that colonel Burr has forborn to avail himself of this legal principle in Kentucky and in the Mississippi Territory, in order that the merits of his case might come before the inquests; but it ought now to be agreed that he should protect himself from being harassed further, by calling into exercise the great principles of the constitution, declaring that no man shall be twice put in jeopardy of his life for the same offence. See amendments to constitution. Now, what part of the affidavit speaks of a fact within the district?

Fourthly, The overt act of treason by colonel Burr within the district must be proved by two witnesses. The constitution and act of congress require two witnesses, not only to the act, but to the treasonable quality of the act. After full time has been afforded to collect all the witnesses in the power of the government, the accused ought not to be deprived of his liberty, unless it was believed that the evidence collected would convict him: imprisonment is only intended for trial and not for punishment. By what does general Wilkinson's affidavit make out intentions? The answer is, by the confessions of the accused or of his supposed associates. The confessions of the accused, by the express words of the constitution, are not evidence, unless made in open court. Confessions are often admitted, from necessity, to get at crimes that deal in secrecy; as larceny, forgery and robbery: but the safety of the people requires that crimes, which deal in publicity, as does the crime of a treasonable war, should not be proved by evidence so incapable of exculpatory proof. When an honourable gentleman (Mr. Giles) was challenged the other day upon a suggestion of his having expressed himself upon the case of the accused, he said he was indisposed to hear evidence of unguarded expressions, in which the witness might have