ner, that is to say, with guns, swords and dirks, and other warlike weapons, as well offensive as defensive, being then and there unlawfully, maliciously and traitorously assembled and gathered together, did falsely and traitorously assemble and join themselves together against the said United States; and then and there with force and arms did falsely and traitorously and in a warlike and hostile manner array and dispose themselves against the said United States; and then and there, that is to say, on the day and in the year last mentioned, at the island aforesaid, in the county of Wood aforesaid, in the Virginia district, and within the jurisdiction of this court, in pursuance of such their traitorous intentions and purposes aforesaid, he the said Aaron Burr with the said persons so as aforesaid traitorously assembled, and armed and arranged in manner aforesaid, most wickedly, maliciously and traitorously did ordain, prepare and levy war against the said United States; and further to fulfil and carry into effect the said traitorous compassings, imaginations and intentions of him the said Aaron Burr, against the said United States, and to carry on the war thus levied as aforesaid against the said United States, the said Aaron Burr, with the multitude last mentioned, at the island aforesaid, in the said county of Wood within the Virginia district aforesaid, and within the jurisdiction of this court, did array themselves in a warlike. manner, with guns and other weapons, offensive and defensive, and did proceed from the said island down the river Ohio in the county aforesaid, within the Virginia district and within the jurisdiction of this court, on the said eleventh day of December, in the year one thousand eight hundred and six aforesaid, with the wicked and traitorous intention to descend the said river and the river Mississippi, and by force and arms traitorously to take possession of a city commonly called New-Orleans, in the territory of Orleans, belonging to the United States, contrary to the duty of their said allegiance and fidelity, against the constitution, peace and dignity of the said United States, and against the form of the act of the congress of the United States in such case made and provided.

HAY, Attorney of the United States, for the Virginia district.

Indorsed " A TRUE BILL-JOHN RANDOLPH."

A Copy. Teste,

WILLIAM MARSHALL, Clerk.

After the indictment was read, Mr. HAY requested that the jury should be furnished with implements necessary to enable them to take notes on the evidence, and also on the arguments if they should think proper; that as the cause was important, and would require all their attention, it would be proper to afford them this assistance. This was accordingly done.

Mr. HAY then opened the case in the following speech:

May it please the court, and you gentlemen of the jury: In the preliminary stages of the prosecution in which we are now engaged, many observations were made extremely derogatory to the character of the government under which we live, and injurious to the feelings of the counsel concerned in the prosecution. Among other things, gentlemen of the jury, it was said, that we had indulged an intemperate zeal against the prisoner, which transgressed all the limits of moderation and humanity; that we were anxious to convict him even if innocent, and to deprive him of those means of defence which justice and law direct. I do not know, gentlemen of the jury, whether you heard this charge, or if you did, whether it made any impression on your minds; but if it did, it is my duty to efface that impression. But how, gentlemen? By professions of moderation, candour, liberality and humanity? professions easily made and as easily forgotten! No. I will prove, gentlemen, that this charge is unjust, by the course which I shall pursue in the very management of this prosecution. We come now to a serious and interesting crisis in this inquiry; on the result of which the life of a man, and of a fellow citizen, who once stood high in the estimation of his country, must certainly depend. It is alleged, that his life is forfeited to the offended justice and violated laws of his country. It is my duty to support that allegation: but, gentlemen of the jury, if I know myself, if I can venture to express what my own feelings dictate, I shall support that allegation only, by facts which I believe to be true, and by arguments which have already produced my own conviction.

The prisoner at the bar, is charged with treason in levying war against the United States. To this charge, he has pleaded not guil ty. It is your high and solemn duty to decide whether the charge be true or not; and you have sworn to decide it according to the evidence which shall be laid before you. If you attend to the obligation and the words of your oath, any admonitions from me, with respect to the course which you ought to pursue, will be entirely superfluous. If you decide according to the evidence, you will divest your minds of every bias, of all political prepossessions produced by extraneous statements and rumours which you may have seen and heard. You will enter upon the case with impartial attention, and a firm determination to do justice between the U. States and the prisoner. But, gentlemen, if, after that patient investigation of the evidence,which the importance of the case requires, and which I am sure you will bestow, you be not satisfied of the guilt of the accused, it is your duty to say, that he is not guilty. This, gentlemen of the jury, is the language of the law, of hu

VOL. I.

3 I

manity and of common sense. If you doubt on the subject, and cannot bring your minds to a positive determination, that he is guilty, you must declare him to be innocent. But gentlemen of the jury, there is one distinction made sometimes by jurymen, to which I will for a single moment call your attention, which seems to me to be a distinction without a difference, and founded in wickedness and folly. It is this: that they were satisfied as individuals that the prisoner was guilty; but yet, that they were not satisfied as jurymen. This appears to me to be a miserable fallacy. A juryman may entertain a belief, founded on what he has heard out of doors, which would not be warranted by the legal evidence before him in court, on which alone he ought to decide; but if the belief once exist in his mind, from the evidence, that the prisoner has committed the crime alleged, he is then guilty of treachery to his God, to his country, and to himself, if he do not pronounce a verdict dictated by that belief.

This indictment contains two counts: one for levying war against the United States, at Blannerhassett's island, in the county of Wood. The other contains precisely the same charge, but goes on with this addition, that in order to levy it more effectually, he descended the Ohio and Mississippi, with an armed force, for the purpose of taking New-Orleans. If either charge be supported by evidence, it will be your duty to find a verdict against him.

In Great-Britain, there are no less than ten different species of treason; at least that was the number when Blackstone wrote, and it is possible that the number may have been in. creased since. But in this country, where the principle is established in the constitution, there are only two descriptions of treason; and the number being fixed in the constitution itself, can never be increased by the legislature, however important and necessary it should be, in their opinion, that the number should be augmented. By the 3d section of the 3d article of the constitution of the United States, "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies; giving them aid and comfort." With respect to the latter description, there is no occasion to say any thing, as the offence charged in the indictment is "levying war against the United States;" but it adds that "no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confes sion in open court." The offence being thus constitutionally defined, the only question which presents itself to your view, at this stage of the inquiry, is, What shall constitute an overt act of levying war against the United States? Treason consists

in levying war against the United States: the question then is. What is, in the law, an overt act of "levying war" against the United States? It is obvious, that the interval between the first movements towards a conspiracy, and actual hostilities, or a battle fought, is immense. There may be a conspiracy to "levy war;" but this is not treason. Individuals may meet together and traitorously determine to make dispositions to bring forces into the field, and levy war against their country; this is a conspiracy, but not treason. The conspirators may go a step further; they may not only project a plan for "levying war,' but they may inlist troops for the purpose of prosecuting their traitorous designs; but this is not an overt act. It hath been decided by the supreme court of the United States, that the persons concerned in this conspiracy, may yet take one step further, and be on the safe side of the line, which separates conspiracy from treason. It has been adjudged that the individuals engaged in the treason, may proceed to a place of rendezvous. But gentlemen, common sense and principles founded on considerations of national safety certainly require, that the crime of treason should be completed, before the actual commission of hostilities against the government. If force must be employed, before treason shall be said to be perpetrated, what is the consequence? Why, that the traitor will so take his steps, as not to strike a blow, till he be in such an attitude, as to be able to bid defiance to the government, and laugh at your definitions of treason. If he be a man of common understanding, he will not hazard a blow, till his arrangements be so complete, that the blow shall be fatal. It will then be a matter of very little consequence to him, what may be the definition of the crime which he has thus committed. What then is the point at which a treasonable conspiracy shall be said to be matured into treason? What shall be said to be an overt act of treason in this country? The answer is this, gentlemen of the jury, that an assemblage of men convened for the purpose of effecting by force a treasonable design, which force is intended to be employed before their dispersion, is treasonable; and the persons engaged in it are traitors. The answer which I have thus given, is not literally that which is furnished by the decision of the supreme court of the United States; but it is substantially the same, and is given in conformity to what I understand to be the spirit of that decision. This is precisely the question which was fully discussed before the supreme court of the United States; and as the opinion of that court, on this question, was pronounced after great deliberation, no other judicial tribunal within the United States ought to support a doctrine contrary to the principles of that decision; and that opinion was, that a bare assem

blage of men, met to carry into forcible execution, before their separation, a treasonable design, was an overt act of levying war against the United States. I refer to the opinion delivered by the chief justice, in the case of Bollman and Swartwout, on the 21st of February, 1807; in which the following words. occur. "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 actually 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: but there must be an actual assembling of men, to constitute a levying of war." If therefore war be levied in this manner, if a number of men collect together for the purpose of effecting a treasonable purpose, all are traitors. The construction which I have thus given, comes within the words and meaning of the decision of the supreme court, pronounced by yourself. The same idea is expressed in perhaps ten or fifteen other parts of this decision: "To complete the crime of levying war against the United States, there must be an actual assemblage of men, for the purpose of executing a treasonable design. There is the utmost precision of language in every part of this judicial sentence. Again:

"A design to overturn the government of the United States at New-Orleans, by force, would have been unquestionably a design, which, if carried into execution, would have been treason; and the assemblage of a body of men, for the purpose of carrying it into execution, would amount to levying war against the United States; but no conspiracy, for this object, no inlisting of men to effect it, would be an actual levying of war." If then the accused and his associates, had met together for the purpose of effecting by force, a dissolution of the government of the United States, at New-Orleans, though no force had been used, or battle fought, to accomplish it, they would have been guilty of treason. Again, gentlemen, the same idea occurs in these other passages: "It cannot be necessary that the whole army should be assembled, and that the various parts which are to compose it, should be combined, but it is necessary that there should be an actual assemblage." "The meeting of particular bodies of men, and their marching from places of partial to places of general rendezvous, would be such an assemblage.' "It would certainly be an overt act oflevying war." I think therefore, gentlemen, that I may with confidence say, that I am warranted in the construction which I have given, by an express and solemn adjudication of the supreme judicial tribunal of this country.