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conclude, that the confederation is too defective to deserve correction. Let us take farewell of it, with reverential respect, as an old benefactor. It is gone, whether this House says so, or not. It is gone, sir, by its own weakness.

authority has no weight with me, till I am convinced-that not the dignity of names, but the force of reasoning, gains my assent.

I intended to have shown the nature of the powers which ought to have been given to the I am afraid I have tired the patience of this general government, and the reason of investHouse; but I trust you will pardon me, as I ing it with the power of taxation; but this was urged by the importunity of the gentleman, would require more time than my strength, or in calling for the reasons of laying the ground- the patience of the committee, would now work of this plan. It is objected by the honor- admit of. I shall conclude with a few observaable gentleman over the way, (Mr. George tions, which come from my heart. I have Mason,) that a republican government is im- labored for the continuance of the Union-the practicable in an extensive territory, and the rock of our salvation. I believe that, as sure extent of the United States is urged as a reason as there is a God in Heaven, our safety, our for the rejection of this constitution. Let us political happiness and existence, depend on the consider the definition of a republican govern- union of the States; and, that without this ment, as laid down by a man who is highly union, the people of this and the other States esteemed. Montesquieu, so celebrated among will undergo the unspeakable calamities which politicians, says, "that a republican government discord, faction, turbulence, war and bloodshed, is that, in which the body, or only a part of have produced in other countries. The Amerthe people, is possessed of the supreme power; ican spirit ought to be mixed with American a monarchical, that in which a single person pride-pride to see the Union magnificently governs, by fixed and established laws; a des- triumph. Let that glorious pride, which once potic government, that in which a single per- defied the British thunder, reanimate you again. son, without law and without rule, directs Let it not be recorded of Americans, that, after every thing, by his own will and caprice. This having performed the most gallant exploits, author has not distinguished a republican gov- after having overcome the most astonishing ernment from a monarchy, by the extent of its difficulties, and after having gained the admiraboundaries, but by the nature of its principles. tion of the world by their incomparable valor He, in another place, contradistinguishes it, as and policy, they lost their acquired reputation, a government of laws, in opposition to others, their national consequence and happiness, by which he denominates a government of men. their own indiscretion. Let no future historian The empire, or government of laws, according inform posterity, that they wanted wisdom and to that phrase, is that in which the laws are virtue to concur in any regular, efficient govmade with the free will of the people; hence ernment. Should any writer, doomed to so then, if laws be made by the assent of the peo- disagreeable a task, feel the indignation of an ple, the government may be deemed free. honest historian, he would reprehend and reWhen laws are made with integrity, and exe- criminate our folly, with equal severity and cuted with wisdom, the question is, whether a justice. Catch the present moment, seize it great extent of country will tend to abridge the with avidity and eagerness, for it may be lost, liberty of the people. If defensive force be never to be regained. If the Union be now necessary, in proportion to the extent of coun- lost, I fear it will remain so for ever. I believe try, I conceive that, in a judiciously constructed gentlemen are sincere in their opposition, and government, be the country ever so extensive, actuated by pure motives; but when I maturely its inhabitants will be proportionably numerous, weigh the advantages of the Union, and dreadand able to defend it. Extent of country, in ful consequences of its dissolution; when I see my conception, ought to be no bar to the adop- safety on my right, and destruction on my left; tion of a good government. No extent on earth when I behold respectability and happiness seems to me too great, provided the laws be acquired by the one, but annihilated by the wisely made and executed. The principles of other, I cannot hesitate to decide in favor of representation and responsibility may pervade the former. I hope my weakness, from speaka large, as well as a small territory: and tying so long, will apologize for my leaving this ranny is as easily introduced into a small, as into a large district. If it be answered, that some of the most illustrious and distinguished authors are of a contrary opinion, I reply, that

subject in so mutilated a condition. If a further explanation be desired, I shall take the liberty to enter into it more fully another time.

SPEECH IN THE TRIAL OF AARON BURR.

In May, 1807, Aaron Burr was arraigned in | exclude further testimony, and thereby enthe Circuit Court of the United States, held at croaching on the sacred rights of the jury. Richmond, Virginia, for treason, in preparing They are capable of being reconciled, for they Courts have their rights, and juries have theirs. the means of a military expedition against the are bodies of the same system. But, although possessions of the King of Spain, with whom the court has no right to dictate the motion of the United States were at peace.* Mr. Ran- the jury, it has a right to restrain them within dolph, associated with Mr. Luther Martin and administration of justice, not rivals in power; their proper orbits. They are brethren in the other distinguished lawyers, appeared in the and if I were permitted to draw an analogy, I defence of Mr. Burr, and spoke as follows: would say that the court is the father of the judicial family-that both are essential to administer justice according to law. This the court is bound to enforce, and this the jury are bound to obey.

The little fragment of time that is left for me, may it please your Honors, I shall not abuse. The day before yesterday I informed the court that I had reserved to myself the right of fully answering the arguments of gentlemen on the other side; but I forbore to exercise it, in consideration of my respect for Mr. Martin. But I said, that if any thing should be omitted by him, I would take the liberty of addressing the court, to supply the omission. There is scarcely any thing which Mr. Martin has not noticed. He has amused and instructed us; but it is difficult to come within that condition I had prescribed to myself; and there are two or three sentiments which I have much at heart, and on which I could not justify to myself to remain silent.

I do not mean to pass through the long series of authorities to which reference has been had, because not a single case has been adduced, by the gentlemen for the prosecution, that has not been fully answered, and its intended effects repelled. I shall endeavor to connect the observations I am about to make with the general subject already submitted to you; but though this cannot be done without mentioning principles which have been sufficiently discussed, I shall avoid repetition as much as possible, and endeavor to place the subject in such a clear point of view that our object cannot be misunderstood.

We have been charged with attempting to

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"As to 'Burr's conspiracy," says Mr. Sullivan, “that unfortunate man, on leaving the vice-presidency, in 1805, becamo a wanderer. He appeared in the western States, in the course of that year, and there attempted to carry into effect some designs, but precisely of what character is not certain. It may be that he calculated on a war with Spain, and intended to advance his own interests under the supposed approbation of the administration, as Miranda did. It

may be that he intended to possess himself of Mexico; or

perhaps to plunder New Orleans; or to sever the Union with the aid of Spain, and found a western empire; perhaps he

intended, as a last resort, to effect a settlement of lands on

the Washita river. His purposes do not appear to have been disclosed, so that they can be placed beyond conjecture."-Familiar Letters on Public Characters, page 243.

Why should they complain? Because, say gentlemen, we suppress testimony. How do we suppress testimony? They have a carte blanche, and are at liberty to suppose every other evidence, except what they know does not exist; that is, the presence of Mr. Burr, and that actual force was employed. They may, if they can, prove every thing short of these things. Have not gentlemen seized these with great eagerness? They have kept their eyes on the court, but alarmed the ears of the jury. They have professed to talk in the abstract, but have described with a pencil whose strokes, dark as Erebus, and intended similitude and application, could not be mistaken. They have thrown, with rhetorical magic, into the cauldron of public opinion, already overboiling, poisonous ingredients, to the ruin of Colonel Burr. We wage an unequal war—an individual against the whole power and influence of the United States. We have to defend ourselves but with law and fact. Only permit us, if you please, to come with this dreadful disparity (for thus we have to contend), even when clothed with the mail of innocence. We ask for the benefit of the law. Why should we be upbraided for asking no more than the law has given us? That we must have. There is not a power on earth that can refuse us what the law gives. It is a privilege given for good reasons as a check to prevent the danger of perversion to oppression; of degeneracy to tyran

ny.

We have fundamental fact to proceed upon the absence of Colonel Burr from the scene of action. His absence is acknowledged; and if it were not, it is proved by us. Hence emerges a question, whether any facts, which can be proved, can convict him as a principal in the treason alleged to have been committed in his absence. If he were not present at Blannerhassett's Island, as stated in this indictment, how can he be convicted as a principal? After the admission that he was absent, how can they succeed? They cannot add one iota to what relates to this part of the business. It is a rule that cannot be controverted, that when an indispensable position cannot be

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proved, the court may interpose with respect to the law, and state its necessity to the jury. This is not a case of equivocal testimony, where credibility and mere weight are to be considered, which it would be improper for the court to decide upon. We ask your opinion of facts, concerning which there is no doubt. Why should the trial proceed, if it should be the opinion of the court that proof of his absence cannot support the charge of his being present as an actor? Surely not to add fuel to the general inflammation, which has already spread far and wide, and that only for the mere purpose of gratifying any one man or set of men; for this court sits not for the amusement of the public fancy or the gratification of public malignity.

But, say they, may not the jury decide the law and the fact against the opinion of the court? But is it proper to produce a struggle between the court and jury? Ought the jury to disregard the opinion of the court when it is confessedly correct? When the court tells the jury truly, that the substratum does not exist, a respectable jury never did and never will find a verdict of guilty.

They say that they are determined to probe this conspiracy, as it is called, to the bottom; and therefore they make these extraordinary efforts; but is there no respect that counsel ought to have for their character, to prevent them from pressing on the jury doctrines which they know to be illegal? Is there no respect due from the jury to the admonition of the court? If irrelevant testimony be to be admitted, twenty or twenty-five days, or more, may be spent in hearing what has no relation to the subject, and cannot affect us. It is in vain, therefore, to proceed. What ought we to expect from the court? Its authority. If the law is to be regarded, we have a right to call on the court for the exercise of its authority to prevent the introduction of illegal testimony.

It is objected that juries would thus be prostrated, and that the court might, on the same principle, decide against the accused. Who thus complains? Was it ever argued that the rights of the jury and the safety of the citizen were destroyed by a favorable opinion to the accused?

Let a Jeffreys arise and succeed you on that seat; let him arrogate to himself what powers he pleases; let him encroach on privileges and tyrannize over the rights of juries, and all those who shall advocate them; yet what examples would he take? If he would permit precedent to be quoted as authority before him, would he take the exercise of mercy for his example?

When this Jeffreys shall arise he will not act on precedent, but will boldly bound over every barrier if he wish to seize his victim; but if he were to follow precedent, he would never take one on the side of mercy. He would pursue an example of rigid severity and cruelty. Would Judge Chase have been impeached, if, in the case of Callender, he had decided on the side of mercy; if he had yielded to the highwrought pretensions of Callender? Would he have been impeached for a misdirection, in issuing process, had he directed a summons to issue instead of a capias? Sir, it is a phenomenon in law and judicial proceedings, that the accused should suffer now (as the counsel for the prosecution insist), in order to provide security for persons who may be accused hereafter; that his rights must be taken from him, in order that others may not lose theirs!

Sir, I am not surprised that the people have been taught to believe that we mean to smother testimony. I have been told of it out of doors, and I have no doubt that such is the general opinion. This is the effect of the improper publicity given to whatever passes here. I have remonstrated against this malpractice, but in vain. We see that not a particle of intelligence is received, no step is taken, nothing If, indeed, as Mr. Hay and Mr. Wirt said, the happens here, which is not in twelve hours consequences of this interposition of the court made public. This intelligence will be diffused, would be the annihilation of the rights of the augmented, and distorted. We make no atjury, I would answer, that any individual on tempts of this sort. These reports remain unearth ought to be sacrificed rather than that so contradicted, and excite prejudices against us. great a danger should be realized. I wish not I wish to know, then, how it can be shown to touch so inestimable an institution. But that we have such an object in view. Where there exists no such danger. Why do we wish is the proof of smothering testimony? We deto have juries? It is that men of our own ny the truth of the accusation. We wish not condition, and who have a fellow-feeling for to suppress testimony,, but it is our duty to opus, should determine controversies and try ac-pose the admission of what is not lawful evicusations against individuals among us; so dence, since so much prejudice has been excited that no standing jurisdiction or permanent tri- against the accused. bunal is to be employed to dictate the fate of any individual. It is a wise and humane regulation, that a jury should thus interpose between the public and an individual. For it is very improbable that oppression will ever take place on that side. All is safe while decisions are on the side of tenderness. No precedent can be drawn from all this to sanction injustice or oppression.

Away, then, with this idea, that we wish to suppress testimony. We only claim what the law allows; and I am afraid that if he be deprived of this right, there never will be again found, in this country, a tribunal able to fortify itself against popular clamor, or counsel sufficiently firm to support an unfortunate client against popular fury. I want no precedents. I want nothing but pre-eminence of virtue and

talents to discern and decide. And while you are placed on the seat of justice, we fear not to meet that high tone of popularity, that popular rage which is so much, and, we say, so unjustly inflamed against us; if not met now, it never can be met.

We are told that every man is a politician, and even judges may be so hereafter. Then we shall be in danger. When they become political partisans we shall be in danger. This evinces the greater necessity of adhering inflexibly to principle.

Sir, I believe that Blannerhassett is innocent. I know him to be innocent, and he may defy all the efforts to be made against him. But the situation in which he is placed does not reflect criminality on Colonel Burr. Do you examine into the character and conduct of the accessory in examining the principal-as whether he were under the influence of the principal or not? Is not this an invitation to subvert all the rules of the law? Blannerhassett is not to be examined, but he is to be called small in guilt, because that of Mr. Burr is to be magniI do not wish to go beyond the seas for ex-fied. The is done, not out of any cordiality to amples, but I cannot help reminding the court | of the conduct of the illustrious Mansfield. He stood, on a critical occasion, as this court stood at the beginning of this trial. I am inclined to believe that the public prejudice has relented; but suppose it to be still in its full fury, the situations are similar. When the popular frenzy was at its utmost height he had to encounter it. He displayed that unshaken firmness which this court now feels. He was unmoved by popular clamor, unawed by popular fury. He wanted no popularity but that which he was sure would follow him and survive when he was no more; that which ever pursues meritorious conduct, the high meed of virtue, which is the best stimulus to the most honorable exertions.

If it were to be said that we want authority and precedent here for this firmness of conduct, we can say that our Washington is recorded in trials not wholly different. He was once in a situation where he might have been alarmed with what was called the popular voice. He was assailed by popular clamor and discontent, but he was firm to his purpose. I can only say that he would have been without a historian if he had not withstood them.

him, but in hatred of Burr. The question now, when he is tried as a principal, is, is he guilty or not? Did he commit the fact? Whereas, according to law, when an accessory before the fact is examined or tried, the only question is, did he abet or aid him who committed the act? and not whether he committed the act himself. This argument was not addressed to you, but to those who surround this great tribunal.

But the constitution, the law of England, and American decisions have been quoted, to show that the prime mover is at any distance a principal. I will examine all these; but the constitution is what I have most at heart, and what I will first consider.

Mr. Hay says that he would rather the constitution should perish than the rights of juries. I revere both. I revere the constitution, because, among other blessings, it secures the rights of juries; and there is no man who hears me, but is convinced that the rights incident to the trial by jury are secured by it.

The constitution is not express upon this subject; and if it be not express, are you to narrow it? Are you to conjecture so as to create a new crime, not only in name but in substance, by introducing a new person which the constitution never contemplated, by adding procuring" as a crime to "doing?”

An argument has been already used, which, if well understood, cannot be resisted. I feel it to be firmly established, but I hope the court" will excuse me for indulging myself in further explaining the principle; not because I deem it necessary after what has been said, but because I want the jury, this audience, and all the world to know and be impressed with what are the rights of the accused. It is this: that when a fact, essential to the guilt of the accused, does not exist, all further proceedings against him should cease.

Another circumstance has been offered to your consideration with a view of exciting the public indignation. Blannerhassett has been most piteously represented as a seduced person, and it is asked, what! shall the seducer be acquitted, and the seduced be the victim? And in order to make the representation more affecting, and to excite our sympathy to a higher degree, the gentleman has gravely introduced his lovely wife and prattling children, his hatred of war, his love of music, of literature, and chemistry, till his seduction by the arts of Mr. Burr.*

* Vide post, Speech of Mr. Wirt.

But we are told that the constitution has adopted terms in treason which are well known. Be it so. But it is only to tell you what is the "læsa majestas" of the nation. It tells you that the legislature should never avail themselves of the malignant passions of the people, so as to call that "lasa majestas" which is not so in fact.

The constitution only intended the classification of crimes which should be considered as tending directly to the subversion of the government. It was left to the legislature to say what particular acts should have this tendency, and to provide the punishment. The constitution supposed that there could be only two classes of cases in which the government could be subverted: levying war, and adhering to the enemies of the country. It never could have been intended to import aid from the common law to expound the constitution. It is only a general description; and the legislature are left to provide a proper remedy for the evil. The legislature, therefore, might have declared at any time, what should be done with

an accessory before the fact. They might punish this and other accessorial offences, by a law coming within the sweeping clause which empowers Congress to make all laws which shall be necessary and proper to carry their enumerated powers into effect.

But the constitution is to be considered according to reason and moral right; and both ask if a transcendent offender be to slip down into an accessory? The answer is, that if reason which judges of the fitness of things, moral right which gives more latitude, or even common sense, be permitted to add persons according to different men's ideas of propriety, what advantage is derived from the principle which has been so long cherished, that penal laws shall be construed strictly? What becomes of the doctrine? What benefit can be had from the constitution containing precise terms and an express enumeration of powers, if moral right, common sense and reason, according to the diversity of human opinions, are to be applied to infer and imply its meaning? We may apply these to Eutopia, Oceana, or even the visions of Plato, or rather, the tribunal of Draco: for wherever they, or what is the same thing, men's different conceptions of them, are to determine what shall be right construction, there will be a tribunal of blood. Language must indeed be understood as the world understands it; but the ideas must not be extended beyond the natural import. I will ask a man of the most common understanding, who is not connected with the cause of Colonel Burr, whether a man, at the distance of three hundred miles from the scene of operation, can be the same as the actual perpetrator? Whether a man could be charged as present at the spot, and doing an act when he was at three hundred miles' distance? What would be his answer? Would he not call it the grossest absurdity? Does not the very idea of law revolt at such a construction? The constitution does not impose it. The common law, the gentleman admits, does not impose it; but common sense requires it! So that common sense shall say absence is presence, and shall consider one man as another, and plunge a dagger into his breast against justice and reason! It is contrary to the common understanding of the world. It is impossible, in the nature of things, that a man at the distance of three hundred miles can be present. This transcends the wildest extravagance of fancy. By metaphysical legerdemain they annihilate space and consolidate identities!

present and to have done it himself; if you charge a crime directly contrary to facts, you mislead and surprise; you are arriving at a point which will involve doctrines of treason which were never intended by the framers of the constitution.

There is a passage in Hume's history which well applies to this subject. I do not say that it will be considered as an authority in a case of treason; but it merits our attention as suggesting useful reflections with respect to the progress of guilt and the promptitude with which the agents of those in power will oppress and destroy, to gratify their employers. The court will recollect the conduct of Henry II. towards Thomas Becket, archbishop of Canterbury, whom he had raised from a low station to the highest offices; but whom he cordially hated and persecuted a long time, on account of his signal ingratitude, his haughtiness, and rigid opposition to his power, which he considered to be treason.

After ne nad issued sentence of excommunication against some of the king's best friends, when the king was informed of it, being vehemently agitated, he burst into an exclamation against his servants, "whose want of zeal," he said, "had so long left him exposed to the enterprises of that ungrateful and imperious prelate." Four gentlemen of his household, taking these passionate expressions for a hint for Becket's death, immediately communicated their thoughts to each other, and swearing to avenge their prince's quarrel, secretly withdrew. They took different routes, but moving in concert, and having an eye to the same end, arrived at the appointed place of meeting about the same time, and soon committed the horrid deed of assassination. Thus a supposed hint from a prince was sufficient for the murder of the prelate.

When the constitution was debated clause by clause in the convention, it was not insinuated by any of its opposers, that the construction now contended for should ever be resorted to. The idea was never advanced, that a man might be thus made a traitor by fiction and relation, and considered as constructively present and constructively an actor, though at the distance of several hundred miles from the place of action; much less that such a construction would ever be countenanced in any of our courts of justice. Not even so much as a conjecture was hazarded to that effect. It never entered into my mind, nor do I believe it entered into that of any other member of that body. And if the common law, with this doctrine of constructive presence, had been a part of this constitution, all the talents on earth would never have been able to have carried it.

The apprehensions which were entertained, and the dangers predicted but a short time past from construction, seem to have been soon forgotten. If you begin so early with creating offences by mere analogy, as constructive presence, where will you stop? Trace the consequences of taking one man for another. Reflect how many shades and approaches there are to guilt. If you can confound these without dis-ed, in the State Convention. tinction, and charge a man, who commanded It is contended that this ought to be conan act to be done by his agent, to have been strued by the same rules as a common statutory

VOL. I.-12

The people of Virginia thought themselves safe on this subject. The construction, now advocated, was not avowed, much less support

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