action of his genius appear with all the varying | grandeur of our mountains in the morning sun. He 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 country; 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."

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 ao cused 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.

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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 they had not been present at any assemblage of the traitors in arms, were notorious and admitted. Here then we find the court so far from re- The case then presented to the court three disquiring presence, that it expressly declares that, tinct questions. First. Has Aaron Burr comhowever remote the accused may have been mitted treason, or has he been engaged or from the scene of the treasonable assemblage, he leagued in any treasonable conspiracy? Seois still involved in the guilt of that assemblage, ond. Were Bollman and Swartwout connected his being leagued in the general conspiracy was with him? Third. Could they be guilty of sufficient to make the act his own. The Su- treason without being actually present? Now, preme Court, being of that opinion, proceeded if the court had been satisfied that there had to an elaborate examination of the evidence, to been an overt act, and that these men were ascertain whether there had been a treasonable leagued in the conspiracy which produced it, assemblage. It looked to the depositions of still it would have remained a distinct and sub General Eaton and General Wilkinson, the ci- stantive question, whether their absence from phered letter, the declaration of Swartwout that the overt act, and their having no immediate Burr was levying an armed body of seven thou-hand in it, did not discharge them from the sand men; and it looked to these parts of the constitutional guilt of levying war; for, though evidence expressly for the purpose of discover- leagued in the conspiracy, and although there ing, whether it were probable that Burr had might have been an overt act, these men would actually brought these men together; not have been innocent, if presence at the overt act whether Bollman and Swartwout were present were necessary to make them guilty. The at any such assemblage. It knew that, if any question then, of presence or absence, was a such assemblage had taken place, Bollman and question really presented by the case of Boll Swartwout must have been at that time at the man and Swartwout. It was one important to city of Orleans, or on their way thither; in- the decision of the case, and the court, thinking deed the whole reasoning of the court proceeded it so, did consider and decide it in direct oppoon the fact, as admitted, of the prisoner's ab- sition to the principle contended for on the sence. Why, then, the laborious investigation other side. A plain man would imagine that, which the court makes as to the probability of when the Supreme Court had taken up and Burr having brought his men or any part of decided the case, its decision would form a prethem together, unless the guilt of that assem- cedent on the subject; and, having that authorblage were to be imputed to Bollman and Swart-ity on my side, I should suppose that I might wout? If their absence were sufficient to ex- safely dismiss the gentleman's first point. But

Mr. Randolph seems to think it very doubtful | But its object, I presume, was not to declare whether you ought to be bound by that author- that there was no such crime. It certainly did ity, and that you must be very much embar- not mean to encourage treason. It meant to rassed to have to decide it, even admitting it to recognize the existence of the crime and provide be a regular judicial determination of this ques- for its punishment. The liberties of the people, tion; for he made a very pathetic and affecting which required that the offence should be deapostrophe to the situation in which you would fined, circumscribed and limited, required also be placed, if you differed from this opinion of that it should be certainly and adequately punthe Supreme Court. ished. The framers of the constitution, informed by the examples of Greece and Rome, and foreseeing that the liberties of this republic might one day or other be seized by the daring ambition of some domestic usurper, have given peculiar importance and solemnity to the crime, by ingrafting it upon the constitution. But they have done this in vain, if the construction, contended for on the other side, is to prevail. If it require actual presence at the scene of the assemblage to involve a man in the guilt of treason, how easy will it be for the principal traitor to avoid this guilt and escape punishment for ever! He may go into distant States, from one State to another. He may secretly wander, like a demon of darkness, from one end of the continent to the other.

I see no difficulty in the case, if our laws are to be uniform. How can the inferior court control the decisions of the superior court? You are but a branch of the Supreme Court. If you, sir, sitting as a circuit court, have a right to disregard the rule decided by the Supreme Court, and adopt a different rule, every other inferior court has an equal right to do the same, so that there will be as many various rules as to treason as there are courts; and the result might be, and certainly would be, that what would be treason in one circuit would not be treason in another; and a man might be hung in Pennsylvania for an act against the United States, in which he would be held perfectly innocent in Virginia. Thus treason against the United States would still be unsettled and fluctuating, and the object of the constitution, in defining it, would be disappointed and defeated; whereas a principle of law, solemnly adjudged by the Supreme Court, becomes, I apprehend, the law of the land; and all the inferior courts are compulsorily bound by it. To say that they are not, is to disorganize the whole judiciary system, to confound the distinctions and grades of the courts, to banish all certainty and stability from the law, and to destroy all uniformity of decision. I trust that we are not prepared to rush into this wild dis-only from the scene of the assemblage and the order and confusion, but that we shall temperately and regularly conform to the decrees of that parent court, of which this is a mere branch, until those decrees shall be changed by the same high authority which created them.

But for a moment, let us relinquish that decision, and, putting it aside, let us indulge the gentleman with the inquiry, whether that decision be in conformity with the constitution of the United States, and the laws of England. In interpreting the constitution, let us apply to it the gentleman's own principles: the rules of reason and moral right. The question to be thus determined is, whether a man, who is absent, may not be guilty as if he were actually present.

He may enter into the confidence of the simple and unsuspecting. He may pour his poison into the minds of those who were before innocent. He may seduce them into a love of his person, offer them advantages, pretend that his measures are honorable and beneficial, connect them in his plot and attach them to his glory. He may prepare the whole mechanism of the stupendous and destructive engine and put it in motion. Let the rest be done by his agents. He may then go a hundred miles from the scene of action. Let him keep himself

immediate spot of battle, and he is innocent in law, while those whom he has deluded are to suffer the death of traitors! Who is the most guilty of this treason, the poor, weak, deluded instruments, or the artful and ambitious man who corrupted and misled them? There is no comparison between his guilt and theirs; and yet you secure impunity to him, while they are to suffer death! Is this according to the rules of reason? Is this moral right? Is this a means of preventing treason? Or rather, is it not in truth a direct invitation to it? Sir, it is obvious, that neither reason nor moral rights require actual presence at the overt act to constitute the crime of treason. Put this case to any common man, whether the absence of a That a law should be so construed as to ad- corruptor should exempt him from punishment vance the remedy and repress the mischief, is for the crime which he has excited his deluded not more a rule of common law, than a princi- agents to commit; and he will instantly tell you ple of reason; it applies to penal as well as to that he deserves infinitely more severe punishremedial laws. So also the maxim of the com- ment than his misguided instruments. There mon law, that a law as well as a covenant should is a moral sense much more unerring in quesbe so construed that its object may rather pre- tions of this sort, than the frigid deductions of vail than perish, is one of the plainest dictates jurists or philosophers; and no man of a sound of common sense. Apply these principles to mind and heart, can doubt for a moment bethe constitution. Gentlemen have said, that its tween the comparative guilt of Aaron Burr. object was to prevent the people from being (the prime mover of the whole mischief), and harassed by arbitrary and constructive treason. I the poor men on Blannerhassett's Island, who

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called themselves Burr's men. In the case of miles from the scene of action, incur equally the murder, who is the most guilty, the ignorant, sentence of the law; they are all equally traideluded perpetrator, or the abominable instiga- tors. This scale, therefore, which graduates the tor? The decision of the Supreme Court, sir, guilt of the offenders and establishes the order is so far from being impracticable on the ground of their respective trials, if it ever existed here, of reason and moral right, that it is supported is completely abrogated by the highest authorThe convention which by their most obvious and palpable dictates. ities in this country. Give to the constitution the construction con- formed the constitution and defined treason, tended for on the other side, and you might as Congress which legislated on that subject, and well expunge the crime from your criminal code; the supreme judiciary of the country expoundnay, you had better do it, for by this construc- ing the constitution and the law, have united tion you hold out the lure of impunity to the in its abrogation. But let us for a moment put most dangerous men in the community, men of the convention, Congress and judiciary aside, ambition and talents, while you loose the ven- and examine how the case will stand. Still this geance of the law on the comparatively inno-scale of moral guilt, which Mr. Wickham has cent. If treason ought to be repressed, I ask you who is the most dangerous and the most likely to commit it-the mere instrument who applies the force, or the daring, aspiring, elevated genius who devises the whole plot, but acts behind the scenes? *

I come now, sir, to the gentleman's third point, in which he says he cannot possibly fail. It is this: "because if the prisoner be a principal 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 further parol evidence can be let in to charge him, until we show a record of the conviction of the principals, in the first degree."

By this, I understand the gentleman to advance, in other terms, the common law doctrine, that when a man is rendered a principal in treason, by acts which would make him an accessory in felony, he cannot be tried before the principal in the first degree.

I understand this to be the doctrine of the common law, as established by all the authorities; but when I concede this point, I insist, that it can have no effect in favor of the accused, for two reasons: first, because it is the mere creature of the common law; secondly, because, if the common law of England be our law, this position assumes what is denied, that the conduct of the prisoner, in this case, is of an accessorial nature, or such as would make him an accessory in felony.

First. Because this position is the mere creature of the common law. If it be so, no consequence can be deduced from it. It is sufficient, on this branch of the subject, to take his own declaration, that the common law does not exist in this country. If we examine the constitution and the act of Congress, we shall find that this idea of a distinction between principals in the first and second degree, depends entirely upon the common law. Neither the constitution nor the act of Congress knows any such distinction. All who levy war against the United States, whether present or absent-all who are leagued in the conspiracy, whether on the spot of the assemblage or performing some minute and inconsiderable part in it, a thousand

The rest of the argument on this point is omitted, as well as the entire argument on the second point.

given us, is the creature of the common law, which, as already observed, he himself in another branch of his argument, has emphatically told us does not exist in this country. He has stated that the creature presupposes the creator, and that where the creator does not exist, the crea ture cannot.

The common law, then, being the creator of the rule which Mr. Wickham has given us, and that common law not existing in this country, neither can the rule, which is the mere creature of it, exist in this country. So that the gentleman has himself furnished the argument which refutes this infallible point of his, on which he has so much relied. But to try this position to its utmost extent, let us not only put aside the constitution and act of Congress, and decision of the Supreme Court, but let us admit that the common law does exist here. Still, before the principle could apply, it would remain to be proven, that the conduct of the prisoner, in this case, has been accessorial; or, in other words, that his acts in relation to this treason, are of such a nature as would make him an accessory in felony.

But is this the case? It is a mere "petitio principii." It is denied that his acts are such as would make him an accessory in felony. I have already, in another branch of this subject, endeavored to show, on the grounds of authority and reason, that a man might be involved in the guilt of treason as a principal, by being legally though not actually present; that treason occupied a much wider space than felony; that the scale of proximity between the accessory and principal must be extended in proportion to the extent of the theatre of the treason; and that as the prisoner must be considered as legally present, he could not be an accessory but a principal. If I have succeeded in this, I have in fact proved that his conduct cannot be deemed accessorial. But an error has taken place from considering the scene of the overt act as the theatre of the treason, from mistaking the overt act of the treason itself, and consequently from referring the conduct of the prisoner to the acts on the island. The conduct of Aaron Burr has been considered in relation to the overt act on Blannerhassett's island only; whereas it ought to be considered in connection with the grand design, the deep plot of seizing Orleans, separating the Union, and establishing an independent

empire in the west, of which the prisoner was to be the chief. It ought to be recollected that these were his objects, and that the whole western country, from Beaver to Orleans, was the theatre of his treasonable operations. It is by this first reasoning that you are to consider whether he be a principal or an accessory, and not by limiting your inquiries to the circumscribed and narrow spot in the island where the acts charged happened to be performed. Having shown, I think, on the ground of law, that the prisoner cannot be considered as an accessory, let me press the inquiry, whether on the ground of reason he be a principal or accessory; and remember that his project was to seize New Orleans, separate the Union, and erect an independent empire in the west, of which he was to be the chief. This was the destination of the plot and the conclusion of the drama. Will any man say that Blannerhassett was the principal, and Burr but an accessory? Who will believe that Burr, the author and projector of the plot, who raised the forces, who enlisted the men, and who procured the funds for carrying it into execution, was made a cat's-paw of? Will any man believe that Burr, who is a soldier, bold, ardent, restless and aspiring, the great actor whose brain conceived, and whose hand brought the plot into operation, that he should sink down into an accessory, and that Blannerhassett should be elevated into a principal? He would startle at once at the thought. Aaron Burr, the contriver of the whole conspiracy, to every body concerned in it was as the sun to the planets which surround him. Did he not bind them in their respective orbits and give them their light, their heat and their motion? Yet he is to be consid-stroyer comes; he comes to change this parered an accessory, and Blannerhassett is to be the principal!

tumn of 1806 he goes forth for the last time to apply this match. On this occasion he meets with Blannerhassett.

Who is Blannerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours. His bistory shows that war is not the natural element of his mind. If it had been, he never would have exchanged Ireland for America. So far is an army from furnishing the society natural and proper to Mr. Blannerhassett's character, that on his arrival in America, he retired even from the population of the Atlantic States, and sought quiet and solitude in the bosom of our western forests. But he carried with him taste and science and wealth; and lo, the desert smiled! Possessing himself of a beautiful island in the Oho, he rears upon it a palace, and decorates it with every romantic embellishment of fancy. A shrubbery that Shenstone might have envied, blooms around him. Music that might have charmed Calypso and her nymphs is his. An extensive library spreads its treasures before him. A philosophical apparatus offers to him all the secrets and mysteries of nature. Peace, tranquillity and innocence shed their mingled delights around him. And to crown the enchantment of the scene, a wife, who is said to be lovely even beyond her sex, and graced with every accomplishment that can render it irresistible, had blessed him with her love, and made him the father of several children. The evidence would convince you that this is but a faint picture of the real life.) In the midst of all this peace, this innocent simplicity and this tranquillity, this feast of the mind, this pure banquet of the heart, the de

Let us put the case between Burr and Blannerhassett. Let us compare the two men and settle this question of precedence between them. It may save a good deal of troublesome ceremony hereafter.

Who Aaron Burr is, we have seen in part already. I will add, that beginning his operations in New York, he associates with him men whose wealth is to supply the necessary funds. Possessed of the mainspring, his personal labor contrives all the machinery. Pervading the continent from New York to New Orleans, he draws into his plan, by every allurement which he can contrive, men of all ranks and descriptions. To youthful ardor he presents danger and glory; to ambition, rank and titles and honors; to avarice the mines of Mexico. To each person whom he addresses he presents the object adapted to his taste. His recruiting officers are appointed. Men are engaged throughout the continent. Civil life is indeed quiet upon its surface, but in its bosom this man has contrived to deposit the materials which, with the slightest touch of his match, produce an explosion to shake the continent. All this his restless ambition has contrived; and in the au

adise into a hell. Yet the flowers do not wither at his approach. No monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him. A stranger presents himself. Introduced to their civilities by the high rank which he had lately held in his country, he soon finds his way to their hearts by the dignity and elegance of his demeanor, the light and beauty of his conversation, and the seductive and fascinating power of his address. The conquest was not difficult. Innocence is ever simple and credulous. Conscious of no design itself, it suspects none in others. It wears no guard before its breast. Every door, and portal, and avenue of the heart is thrown open, and all who choose it enter. Such was the state of Eden when the serpent entered its bowers. The prisoner, in a more engaging form, winding himself into the open and unpractised heart of the unfortunate Blannerhassett, found but little difficulty in changing the native character of that heart and the objects of its affection. By degrees he infuses into it the poison of his own ambition. He breathes into it the fire of his own courage; a daring and desperate thirst for glory; an ardor panting for great enterprises, for all the storm and bustle and hurricane

inferior in guilt to them,) Aaron Burr was not a principal, but an accessorial offender in the treason; would you, for that reason, stop the evidence from going to the jury? Now, to inquire whether the conduct of Aaron Burr make him liable as a principal or accessory, is only arguing in a different shape the whole question, whether he have committed an overt act of war or not. The jury are to consult and decide whether he be a principal offender or not. Whether he be a principal or accessory is a question of fact, which they are sworn to decide. The court must judge of the weight of evidence, before it can say that the accused is either a principal or accessory. Suppose one part of the evidence contradicts another. Is it not judging of the weight of evidence to decide whether he be a principal or accessory? If it be not, I know not what judging of the weight of evidence is. Nothing is more peculiar within the exclusive province of the jury than the sufficiency or insufficiency of the evidence.

of life. In a short time the whole man is changed, | injustice and inhumanity of considering him as and every object of his former delight is relinquished. No more he enjoys the tranquil scene; it has become flat and insipid to his taste. His books are abandoned. His retort and crucible are thrown aside. His shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His ear no longer drinks the rich melody of music; it longs for the trumpet's clangor and the cannon's roar. Even the prattle of his babes, once so sweet, no longer affects him; and the angel smile of his wife, which hitherto touched his bosom with ecstasy so unspeakable, is now unseen and unfelt. Greater objects have taken possession of his soul. His imagination has been dazzled by visions of diadems, of stars, and garters, and titles of nobility. He has been taught to burn with restless emulation at the names of great heroes and conquerors. His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately "permitted not the winds of" summer "to visit too roughly," But the court never says that the evidence is we find her shivering at midnight, on the win- or is not sufficient to prove what it is intended try banks of the Ohio, and mingling her tears to establish. No court has such right. The with the torrents that froze as they fell. Yet course in such cases, is to give instructions in a this unfortunate man, thus deluded from his in-general charge to the jury, after all the evidence terest and his happiness, thus seduced from the paths of innocence and peace, thus confounded in the toils that were deliberately spread for him, and overwhelmed by the mastering spirit and genius of another this man, thus ruined and undone, and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, while he, by whom he was thus plunged in misery, is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the hu- Mr. Martin has referred you to a number of man understanding will bear a perversion so cases from Cooper and other authors, but they monstrous and absurd! so shocking to the soul! do not prove the position intended. The court, so revolting to reason! Let Aaron Burr, then, in all these cases, leaves the jury to decide on not shrink from the high destination which he the overt act. You will find those cases to has courted, and having already ruined Blan-amount simply to this: a dialogue between the nerhassett in fortune, character and happiness, court and the counsel of the prisoner, as to the for ever, let him not attempt to finish the trage-overt act. The court was required to say, whethdy by thrusting that ill-fated man between him-er the overt act were proved or not. There was self and punishment.

Upon the whole, sir, reason declares Aaron Burr the principal in this crime, and confirms herein the sentence of the law; and the gentleman, in saying that his offence is of a derivative and accessorial nature, begs the question, and draws his conclusions from what, instead of being conceded, is denied. It is clear from what has been said, that Burr did not derive his guilt from the men on the island, but imparted his own guilt to them; that he is not an accessory, but a principal; and, therefore, that there is nothing in the objection which demands a record of their conviction before we shall go on with our proof against him.

But suppose you should think otherwise, suppose you were of opinion, that on principles of law and reason, (notwithstanding the seeming

shall have been heard. Will you, because of your impressions on this subject, from a merely partial view of the evidence, compel the jury also to decide on that necessarily partial view? If you do, do you not thereby divest the jury of their peculiar functions? Their province should not be invaded. The invasion is big with danger and terror. I trust that you will see this subject in the awful light in which it really stands, and that you will suffer the trial to take its natural course.

no judicial determination. The judge merely told his opinion; but he told the jury at the same time, that the decision belonged to them and not to him.

There is a wide difference between criminal and civil cases; and as it is of much more importance to preserve the trial by jury in the former, to protect the lives of the people against unjust persecutions, than in mere civil suits, to preserve the rights of property, the constitution has secured that trial in all criminal prosecutions.

Should the court interfere for the purpose of stopping the evidence, and to wrest the cause from the jury, in favor of the accused, would there not be a reciprocal right? If it can interfere to save the prisoner, can they not interfere equally against him? A thing unprecedented