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manifestly relapsed to the age of the Revolution. He talked, in broken sentences, of the committees of safety, and the rest of that great machinery, which he imagined to be still in action. One of his exclamations was, “Warn the committee to be on their guard; ” and he instantly rose in his bed, with the help of his attendants, and went through the act of writing a hurried note. But these intervals were few and short. His reason was almost constantly upon her throne, and the only aspiration he was heard to breathe, was the prayer, that he might live to see the fourth of July. When that day came, all that he was heard to whis
r was the repeated ejaculation—“Nunc Dom}. dimittas"—Now, Lord, let thy servant depart in peace And the prayer of the patriot was heard and answered.
The patriarch of Quincy, too, with the same certainty of death before him, prayed only for the protraction of his life to the same day. His prayer was also heard: and when a messenger from the neighboring festivities, unapprised of his danger, was deputed to ask him for the honor of a toast, he showed the object on which his dying eyes were fixed, and exclaimed with energy, “Independence for ever!” His country first, his country last, his country always l
Hitherto, fellow-citizens, the fourth of July had been celebrated among us, only as the anniversary of our independence, and its votaries had been merely human beings. But at its last recurrence—the great jubilee of the nation—the anniversary, it may well be termed, of the liberty of man—Heaven, itself, mingled visibly in the celebration, and hallowed the day anew by a double apotheosis. Is there one among us to whom this language seems too strong? Let him recall his own feelings, and the objection will vanish. When the report first reached us, of the death of the great man whose residence was nearest, who among us was not struck with the circumstance that he should have been removed on the day of his own highest glory? And who, after the first shock of the intellince had passed, did not feel a thrill of mournul delight at the characteristic beauty of the close of such a life. But while our bosoms were yet swelling with admiration at this singularly beautiful coincidence, when the second report immediately followed, of the death of the great sage of Quincy, on the same day—I appeal to yourselves—is there avoice that was not hushed, is there a heart that did not quail, at this close manifestation of the hand of Heaven in our
affairs! Philosophy, recovered of her surprise, may affect to treat the coincidence as fortuitous. But philosophy herself was mute, at the moment, under the pressure of the feeling that these illustrious men had rather been translated, than had died. It is in vain to tell us that men die by thousands every day in the year, all over the world. The wonder is, not that two men have died on the same day, but that two such men, after having performed so many and such splendid services in the cause of liberty—after the multitude of other coincidences which seem to have linked their destinies together—after having lived so long together, the objects of their country's joint veneration—after having been spared to witness the great triumph of their toils at home—and looked together from Pisgah's top, on the sublime effect of that grand impulse which they had given to the same glorious cause throughout the world, should, on this fiftieth anniversary of the day on which they had ushered that cause into light, be both caught up to Heaven, together, in the midst of their raptures Is there a being, of heart so obdurate and sceptical, as not to feel the hand and hear the voice of Heaven in this wonderful dispensation 1 And may we not, with reverence, interpret its language? Is it not this? “These are my beloved servants, in whom I am well pleased. They have finished the work for which I sent them into the world; and are now called to their reward. Go ye, and do likewise ! ” One circumstance, alone, remains to be noticed. In a private memorandum found among some other obituary papers and relics of Mr. Jefferson, is a suggestion, in case a memorial over him should ever be thought of that a granite obelisk, of small dimensions, should be erected, with the following inscription:
here Lies punied THOMAS JEFFERSON, Author of the Declaration of Independence, Of the Statutes of Virginia, for Religious Freedom, And Father of the University of Virginia.
All the long catalogue of his great, and splendid, and glorious services, reduced to this brief and modest summary 1
Thus lived and thus died our sainted Patriots! May their spirits still continue to hover over their countrymen, inspire all their counsels, and guide them in the same virtuous and noble path o And may that God, in whose hands are the issues of all things, confirm and perpetuate to us the inestimable boon, which through their agency he has bestowed; and make our Columbia the bright exemplar for all the struggling sons of liberty around the globel
SPEECH IN THE TRIAL OF AARON BURR.
In May, 1807, Aaron Burr was arraigned in the Circuit Court of the United States, held at Richmond, Virginia, for treason, in preparing the means of a military expedition against the possessions of the King of Spain, with whom the United States were at peace.* Under the direction of President Jefferson, Mr. Wirt was retained, to assist the United States Attorney in the prosecution, and in the course of the trial, he spoke as follows:
MAY IT PLEASE You R HoNors: 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 manoeuvre 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 un
* A full report of this extraordinary trial was taken in short hand by Mr. T. Carpenter, and published in three volumes, 1807. See note at page 174, in the first volume of this work; also the speech of Mr. Randolph, at the same place.
dermine 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 drawing-room 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, ulat 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 develope 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 of defence. It marks the genius and hand of a master. For it gives to the prisoner every possible advantage, while it gives him the full benefit of his legal defence— the sole defence which he would be able to make to the jury, if the evidence were all introduced before them. It cuts off from the prosecution all that evidence which goes to connect the prisoner with the assemblage on the island, to explain the destination and objects of the assemblage, and to stamp beyond controversy the character of treason upon it. Connect this motion with that which was made the other day, to compel us to begin with the proof of the overt act, in which, from their zeal, gentlemen were equally sanguine, and observe what would have been the effect of success in both motions. We should have been reduced to the single fact, the individual fact, of the assemblage on the island, without any
of the evidence which explains the intention.
and object of that assemblage. Thus gentlemen would have cut off all the evidence, which carries up the plot almost to its conception, which, at all events, describes the first motion which quickened it into life, and follows its progress until it attained such strength and maturity as to throw the whole western country into consternation. Thus, of the world of evidence which we have, we should have been reduced to the speck, the atom which relates to Blannerhassett's Island. General Eaton's deposition, (hitherto so much and so justly revered as to its subject,) standing by itself would have been without the powerful fortification derived from the corroborative evidence of Commodore Truxton, and the still stronger and most extraordinary coincidence of the Morgans. Standing alone, gentlemen would have still proceeded to speak of that affidavit, as they have heretofore done; not declaring that what General Eaton had sworn was not the truth, but that it was a most marvellous story! a most wonderful tale! and thus would they have continued to seek, in the bold and wild extravagance of the project itself, an argument against its existence and a refuge from public indignation. But that refuge is taken away. General Eaton's narration stands confirmed beyond the possibility of rational doubt. But I ask what inference is to be drawn from these repeated attempts to stifle the prosecution and smother the evidence? If the views of the prisoner were, as they have been so often represented by one of his counsel, highly honorable to himself and glorious to his country, why not permit the evidence to disclose these views? Accused as he is of high treason, he would certainly stand acquitted, not only in reason and justice, but by the maxims of the most squeamish modesty, in showing us by evidence all this honor and this glory which his scheme contained. No, sir, it is not squeamish modesty; it is not fastidious delicacy that prompts these repeated efforts to keep back the evidence; it is apprehension; it is alarm; it is fear; or rather it is the certainty that the evidence, whenever it shall come forward, will fix the charge; and if such shall appear to the court to be the motive of this motion, your Honors, I well know, will not be disposed to sacrifice public justice, committed to your charge, by aiding this stratagem to elude the sentence of the law; you will yield to the motion no further than the rigor of legal rules shall imperiously constrain you. I shall proceed now to examine the merits of the motion itself, and to answer the argument of the gentleman, (Mr. Wickham,) who
opened it. I will treat that gentleman with candor. If I misrepresent him, it will not be intentionally. I will not follow the example, which he has set me, on a very recent occasion. I will not complain of flowers and graces, where none exist. I will not, like him, in reply to an argument as naked as a sleeping Venus, but certainly not half so beautiful, complain of the painful necessity I am under, in the weakness and decrepitude of logical vigor, of lifting first this flounce, and then than furbelow, before I can reach the wished for point of attack. I keep no flounces or furbelows ready manufactured and hung up for use in the millinery of my fancy, and if I did, I think I should not be so indiscreetly impatient to get rid of my wares, as to put them off on improper occasions. I cannot promise to interest you by any classical and elegant allusions to the pure pages of Tristram Shandy. I cannot give you a squib or a rocket in every period. For my own part, I have always thought these flashes of wit, (i. they deserve that name,) I have always thought these meteors of the brain, which spring up with such exuberant abundance in the speeches of that gentleman, which play on each side of the path of reason, or sporting across it with fantastic motion, decoy the mind from the true point in debate, no better evidence of the soundness of the argument with which they are connected, nor, give me leave to add, the vigor of the brain from which they spring, than those vapors which start from our marshes and blaze with a momentary combustion, and which, floating on the undulations of the atmosphere, beguile the traveller into bogs and brambles, are evidences of the firmness and solidity of the earth from which they proceed. I will endeavor to meet the gentleman's propositions in their full force, and to answer them fairly. I will not, as I am advancing towards them with my mind's eye, measure the ho breadth and power of the proposition; if I find it beyond my strength, halve it; if still beyond my strength, quarter it; if still necessary, subdivide it into eighths; and when, by this process I have reduced it to the proper standard, take one of these sections and toss it, with an air of elephantine strength and superiority. If I find myself capable of conducting, by a fair course of reasoning, any one of his propositions to an absurd conclusion, I will not begin by stating that absurd conclusion as the proposition itself which I am going to encounter. I will not, in commenting on the gentleman's authorities, thank the gentleman, with sarcastic politeness, for introducing them, declare that they conclude directly against him, read just so much of the authority as serves the purpose of that declaration, omitting that which contains the true point of the case which makes against me; nor, if forced by a direct call to read that part also, will I content myself by running over it as rapidly and inarticulately as I can, throw down the book with a theatrical air, and exclaim, “just as I said,” when I know it is just as I had not said. I know that, by adopting these arts, I might raise a laugh at the gentleman's expense; but I should be very little leased with myself, if I were capable of enjoying a laugh procured by such means. I know, too, that by adopting such arts, there will always be those standing around us, who have not comprehended the whole merits of the legal discussion, with whom I might shake the character of the gentleman's science and judgment as a lawyer. I hope I shall never be capable of such a wish, and I had hoped that the gentleman himself felt so strongly that proud, that high, aspiring and ennobling magnanimity, which I had been told conscious talents rarely fail to inspire, that he would have disdained a poor and fleeting triumph, gained by means like these. I proceed now to answer the several points of his argument, so far as they could be collected from the general course of his speech. I say, so far as they could be collected; for the gentleman, although requested before he began, refused to reduce his motion to writing. It suited better his partisan style of warfare to be perfectly at large; to change his ground as often as he pleased; on the plains of Monmouth to-day, at the Eutaw i. to-morrow. He will not censure me, therefore, if I have not been correct in gathering his points from a desultory discourse of four or five hours' length, as it would not have been wonderful if I had misunderstood him. I trust, therefore, that I have been correct; it was my intention to be so; for I can neither see pleasure nor interest in misrepresenting any gentleman; and I now beg the court, and the gentleman, if he will vouchsafe it, to set me right if I have misconceived him. I understood him, then, sir, to resist the introduction of further evidence, under this indictment, by making four propositions. First. Because Aaron Burr, not being on the island, at the time of the assemblage, cannot be a principal in the treason, according to the constitutional definition or the laws of England. Second. Because the indictment must be proved as laid; and as the indictment charges the prisoner with levying war, with an assemblage on the island, no evidence to charge him with that act, by relation, is relevant to this indictment. Third. Because, if he be a Fo in the treason at all, he is a principal in the second degree; and his guilt being of that kind which is termed derivative, no parol evidence can be let in to charge bim, until we shall show a record of the conviction of the principals in the first degree. Fourth. Because no evidence is relevant to connect the prisoner with others, and thus to make him a traitor by relation, until we shall previously show an act of treason in these others; and the assemblage on the island was not an act of treason. I beg leave to take up these propositions in
succession, and to give them those answers which to my mind are satisfactory. Let us examine the first: it is because Aaron Burr, not being present on the island at the time of the assemblage, cannot be a principal in the treason, within the constitutional definition or the laws of England. In many of the gentleman's general propositions, I perfectly accord with him: as that the constitution was intended to guard against the calamities to which Montesquieu refers, when he speaks of the victims of treason; that the constitution intended to guard against arbitrary and constructive treasons; that the principles of sound reason and liberty require their exclusion; and that the constitution is to be interpreted by the rules of reason and moral right. I fear, however, that I shall find it difficult to accommodate both the gentlemen who have spoken in support of the motion, and to reconcile some of the positions of Mr. Randolph to the rules of Mr. Wickham ; for, while the one tells us to interpret the constitution by sound reason, the other exclaims, “save us from the deductions of common sense.” What rule then shall I adopt? A kind of reason which is not common sense might indeed please both the gentlemen; but, as that is a species of reason of which f have no very distinct conception, I hope the gentlemen will excuse me for not employing it. Let us return to Mr. Wickham. Having read to us the constitutional definition of treason, and given us the rule by which it was to be interpreted, it was natural to expect that he would have proceeded directly to apply that rule to the definition, and give us the result. But while we were expecting this, even while we have our eyes on the gentleman, he vanishes like a spirit from American ground, and we see him no more until we see him in England, resurging by a kind of intellectual magic in the middle of the sixteenth century, complaining most dolefully of my lord Coke's bowels. Before we follow him in this excursion, it may be well to inquire what it was that induced him to leave the regular track of his argument. I will tell you what it was. It was, sir, the decision of the Supreme Court in the case of Bollman and Swartwout. It was the judicial exposition of the constitution by the highest court in the nation, upon the very point which the gentleman was considering, which made him take this flight to England; because it stared him in the face and contradicted his position. Sir, if the gentleman had believed this decision to be favorable to him, we should have heard of it in the beginning of his argument; for the path of inquiry in which he was led him directly to it. Interpreting the American constitution, he would have preferred no authority to that of the Supreme Court of the country. Yes, sir, he would have immediately seized this decision with avidity. He would have set it before you in every possible light. He would have illustrated it. He would have adorned it. You would have seen it under the action of his genius appear with all the varying andeur of our mountains in the morning sun. #. would not have relinquished it for the common law, nor have deserted a rock so broad and solid, to walk upon the waves of the Atlantic. But he knew that this decision closed against him completely the very point which he was laboring. Hence it was that the decision was kept so sedulously out of view, until from the exploded materials of the common law he thought he had reared a Gothic edifice so huge and so dark, as quite to overshadow and eclipse it. Let us bring it from this obscurity into the face of day. We who are seeking truth and not victory, whether right or wrong, have no reason to turn our eyes from any source of light which presents itself, and least of all from a source so high and so respectable as the decision of the Supreme Court of the United States. The inquiry is, whether presence at the overt act be necessary to make a man a traitor? The gentlemen say that it is necessary; that he cannot be a principal in the treason without actual presence. What says the Supreme Court in the case of Bollman and Swartwout? “It is not the intention of the court to say that no individual can be guilty of this crime, who has not appeared in arms against his ‘..."; on the contrary, if war be actually levied, that is, if a body of men be assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” Here then we find the court so far from requiring presence, that it expressly declares that, however remote the accused may have been from the scene of the treasonable assemblage, he is still involved in the guilt of that assemblage, his being leagued in the general conspiracy was sufficient to make the act his own. The Supreme Court, being of that opinion, proceeded to an elaborate examination of the evidence, to ascertain whether there had been a treasonable assemblage. It looked to the depositions of General Eaton and General Wilkinson, the cihered letter, the declaration of Swartwout that }. was levying an armed body of seven thousand men; and it looked to these parts of the evidence expressly for the purpose of discovering, whether it were probable that Burr had actually brought these men together; not whether Bollman and Swartwout were present at any such assemblage. It knew that, if any such assemblage had taken place, Bollman and Swartwout must have been at that time at the city of Orleans, or on their way thither; indeed the whole reasoning of the court proceeded on the fact, as admitted, of the prisoner's absence. Why, then, the laborious investigation which the court makes as to the probability of Burr having brought his men or any part of them together, unless the guilt of that assemblage were to be imputed to Bollman and Swartwout? If their absence were sufficient to ex
cuse them, that fact was admitted, and the inquiry would have been a very short one. But, the court having previously decided that the fact of presence or absence was unimportant, that it made no odds how far distant the aocused might be from the treasonable assemblage, it became the unavoidable duty of the court to proceed to the inquiry, whether any such assemblage had taken place; and if the evidence had manifested that fact to its satisfaction, it is clear that, in the opinion of that court, the prisoners would have been as deeply involved in the guilt of that assemblage as any of those who actually composed it. The counsel knew that their first point was met directly by the counter authority of the Supreme Court. They have impliedly, if not expressly, admitted it; hence they have been reduced to the necessity of taking the bold and difficult ground, that the passage which I have read is extrajudicial, a mere “obiter dictum.” They have said this, but they have not attempted to show it. Give me leave to show that they are mistaken; that it is not an “obiter dictum; "that it is not extrajudicial; but that it is a direct adjudication of a point immediately before the, court. What were the questions before the court? The court made no formal division of this subject, but these questions are necessarily and irresistibly involved in it. It must first be observed, that the arrest of Bollman and Swartwout at New Orleans, and the fact that thcy had not been present at any assemblage of the traitors in arms, were notorious and admitted. The case then presented to the court three distinct questions. First. Has Aaron Burr committed treason, or has he been engaged or leagued in any treasonable conspiracy Second. Were Bollman and Swartwout connected with him? Third. Could they be guilty of treason without being actually present? Now, if the court had been satisfied that there had been an overt act, and that these men were leagued in the conspiracy which produced it, still it would have remained a distinct and substantive question, whether their absence from the overt act, and their having no immediate hand in it, did not discharge them from the constitutional guilt of levying war; for, though leagued in the conspiracy, and although there might have been an overt act, these men would have been innocent, if presence at the overt act were necessary to make them guilty. The question then, of presence or absence, was a question really presented by the case of Bollman and Swartwout. It was one important to the decision of the case, and the court, thinking it so, did consider and decide it in direct opposition to the principle contended for on the other side. A plain man would imagine that, when the Supreme Court had taken up and decided the case, its decision would form a precedent on the subject; and, having that authority on my side, I should suppose that I might safely dismiss the gentleman's first point. But