evidence respecting the intention? The court has no such powers. The only power which the court possesses is, not to direct the order in which the evidence shall be introduced, but to instruct them on the law; to direct whether the evidence be competent or incompetent to be laid before, the jury: to determine its weight or sufficiency to prove the overt act is the exclusive province of the jury. The court cannot withhold from them any evidence touching the issue. Will the court stop us? Will the court or the jury decide on the issue? All the authorities of the law concur in this, that the whole testimony shall come before the jury; that they have a right to hear the whole and decide on it.

The only inquiry now is, as to the order in which it shall be introduced. We insist that the mode which we propose, is the most luminous, and most favourable to a complete comprehension of the subject; and that that which they maintain, is the most confused and worst calculated to attain that end.

I will refer you to the sentiments delivered by judge Iredell, on the Trial of Fries, pages 174, 175: Mr. Lewis having stated a question, whether the overt act laid in the indictment in a certain county, must not be proved to the satisfaction of the jury, both as to fact and intention in the same county; or whether the overt act did not include both fact and intention? Judge Iredell replied, "that he considered Foster's Crown Law, as settling that point. When two witnesses are produced, who prove the overt act laid in the indictment, there might then be evidence from other counties, respecting the intention. This is the opinion of judge Foster, and it is my opinion. But there is another thing. It goes to a point which is inadmissible; it is not for the court to say, whether there were a treasonable intention or act as charged in the indictment; that is for the jury to determine, we have only to state the law. We therefore should have no right to give an opinion upon it. Again, if no evidence could regularly be admitted out of the county, until both the fact and intention were established, where the crime is laid, the consequence would be, that there ought to be some way of taking the opinion of the jury, whether they believed that the crime was committed at Bethlehem, before the court could proceed to extraneous testimony! This cannot be done. A jury must give a verdict on all the evidence collectively: if the evidence be admitted, then the jury is bound to respect the weight of it; the competency of that evidence is for the court to decide; but the jury must estimate its weight." You cannot stop the prosecutor after he has given a part of the evidence. The jury must hear the whole, and make up an opinion on the whole. Neither the court nor the gentlemen can stop us. If we prove an act in the course of the whole evidence, it will suffice. If we prove either first, we must go a VOL. I. 3 M

step beyond that, and prove the other, so as to shew that it is a complete overt act of treason.

Mr. Botts has referred to the opinion of judge Iredell, but certainly it cannot be interpreted in his favour. The judge is not contemplating the order of evidence; he speaks of the evidence to the jury. The point before him was, not the order of the evidence, but the propriety or impropriety of its introduction at all. The inquiry was, whether the prisoner were guilty of levying war against the United States, at Bethlehem, in Northhampton county, and whether the evidence supported that charge? and the judge told the jury, that, if the prisoner went to the place where the act was committed, with treasonable intentions, the treason was complete. He investigated nothing but the propriety of the evidence. Of its order, nothing was said. The court cannot stop the inquiry. Who is to judge of the evidence of the overt act? The court? Will the court tell the jury when they are satisfied, that the overt act has been proved? When are we to be stopped? Is the court to decide at what stage of the evidence we are to be stopped? If the court stop us before we adduce all our evidence, they usurp the power of deciding on the evidence. Is this a part of your functions? I think not. The whole evidence must be laid before the jury; the court taking care not to let in any but what is legal. The authority quoted by Mr. Botts, from Foster, 216. has no sort of application to this point.

The principle of the decision in Vaughan's case is not against us. The indictment against captain Vaughan, was for adhering 'to the king's enemies on the high seas; and the overt act laid was his cruising on the king's subjects, in a vessel called the “Loyal Clencarty." The counsel for the prosecution offered evidence to prove, that he had some time before, cut away the custom house barge, and had gone a cruising in her. This evidence was opposed by the prisoner's counsel, and rejected by the court; "for were it true, it is no sort of proof, that the prisoner had cruised in the Loyal Clencarty, which was the only fact he was then to answer for." This case only proves, that on a trial on an indictment for any specific treason, evidence of a previous intention to commit a distinct substantive treason, is inadmissible; or in other words, that the evidence must prove the charge; it being a principle universally correct, that an offence different from that which is charged, shall not be proved. It was merely the rejec tion of evidence foreign to the point in issue. It only proves that no evidence of what is a different and distinct substantive treason of itself, shall be admitted to support any indictment. This doctrine ought to have more effect in England than in this country, since the abuses against which it is intended to secure, might there be more extensively injurious than here: but the same court allowed other overt acts to be given in evidence, for the purpose of shew

ing the intention of the prisoner. It is, indeed, as Foster says, a sound and just rule, that all evidence without the issue, should be rejected: but how can testimony, shewing the intention of Aaron Burr, be said to be without the issue? It goes directly to prove the treason in the indictment.

The doctrine in Smith and Ogden, p. 82. explains the danger of going out of the statement in the indictment, and shews the necessity of preserving the principle, " that the evidence must be pertinent to the issue." The exhibition of proof of Aaron Burr's intentions is within the rule established in the English courts, and the decision in Smith and Ogden.

Mr. Wirt further remarked, that the former decision of this court on this point, which gentlemen had thought proper to refer to as decisive in their favour, could not be rightly so considered: that two material circumstances would justify this conclusion. First, the court at that time wished to avoid such a discussion and display of the evidence as might prejudice the public mind. Second, the court then decided on the law and the fact, and performed the duties of judge and juror. It might decide when it was proper to stop or proceed; be satisfied with the testimony already introduced, or require more. But that now the jury were to decide on the guilt or innocence of the accused, the court had only to state the law on the different points arising in the course of the trial.

Mr. LEE in substance contended, that the act, an open deed of war, committed in the full view of the world, on the 10th day of December, on Blannerhassett's island, if it ever existed, was susceptible of clear proof; that the time, place and manner of committing the offence, as laid in the indictment, were material to be proved; that it was not pretended that the counsel for the prosecution, had any right to exhibit proof of any other treason than that specified in the indictment; that the effect of the facts to be proved, must be discussed hereafter, but that the proof of them, as preliminary to, and the foundation of, other testimony, was indispensably requisite; that it was difficult to describe the absurdity to which the admission of other evidence, before proof of the acts authorising that admission, would lead; that it would be almost as inconsistent and improper, as to attempt to make the effect precede its cause, or according to the vulgar phraseology, to put the cart before the horse; that it would be changing the rules of law; that a great deal of time might be occupied in adducing a great deal of testimony, to charge a man accused of murder, with malignant intentions, when the person said to be murdered, was actually alive; or of arson, when the house alleged to be burnt was standing; that the act existed, or it did not. If it existed, it ought to be immediately proved: if it did not exist,

they ought magnanimously to yield, as they could not produce that testimony which might render all other evidence applicable.

Mr. Lee further dilated with great force and ingenuity; but for the reasons before mentioned, his arguments are necessarily condensed.

. Mr. MARTIN spoke to the following effect:

I shall take the liberty of adding a few observations, to what has been already said.

The great question is, whether the prosecutors must not prove an overt act in the first instance, before any other evidence can be introduced? We contend that they must, and that law and reason support us. They admit that colonel Burr must be proved to have committed one or more overt acts; and that the court and jury must be satisfied, that these acts were committed with a treasonable design; that he levied war against the United States, with intent to destroy the constitution and government thereof. This is the true construction of the words "levying war." There can be no "levying war," unless the object and design be the subversion of the government of the United States. It is admitted that both these things must be proved, before he can be found guilty. The question which results necessarily is, which of them is first to be proved? The very eloquent and ingenious counsel admit, that it is not of much consequence, in which order these facts are to be established; but insist on proceeding as they have done, for two reasons; first, because it is the most correct and usual mode; and secondly, because it is a mark of disrespect to the attorney of the United States, to interfere with his arrangement of the evidence. As to the second cause, which I think proper to answer first, I will only say, that we cannot conceive, why they should have construed the performance of a professional duty, into a manifestation of disrespect for the gentleman. We exercised a right and discharged a duty to our client, in opposing what we deemed an illegal proceeding. How then can he consider himself treated disrespectfully? He certainly has no right to view it in that light. We had no such intention; and I will say further, that if he conduct himself with that mildness and decorum, which ever becomes a public prosecutor, he shall receive from us every mark of respect. As to the first and principal reason urged by gentlemen in support of this mode of conducting the prosecution, that it is the most correct order of proceeding; it might be proper, if it were an indictment for a conspiracy to commit treason, to proceed in the first instance, to prove the intentions: but in this prosecution for treason for "levying war," I confidently say, that the most natural order of proceeding, is, to begin with proving the material act, without which, all other evidence whatso

ever, would be irrelevant and improper. In Great Britain, a conspiracy to commit treason is made treason by a particular statute; that is, "compassing the death of the king," is made high treason. In that particular instance, the intention, the mere act of the mind is rendered, what it is in no other case without an act in pursuance of it, criminal and punishable. In that case,. which is in fact a conspiracy to commit treason, the intention of the heart, the formation of the design in the mind is the very crime; and the correct mode of procedure on a trial for it, would be to begin to shew the conspiracy, the number of persons engaged in it, the time when, and place where, they did conspire, and other circumstances connected with the conspiracy: but this applies only to a prosecution on an indictment for compassing the death of the king. In every other case, where a material act constitutes the crime, the prosecutor must begin by proving that act, either by positive testimony or strong circumstances, to shew that the party accused committed it. In a prosecution for treason for "levying war," after the cause is opened, proof of the act should be adduced, as is done in every other criminal case. On a trial for murder, the act of killing must first be proved, if not admitted; in a prosecution for burglary, the nocturnal breaking into the house must be proved; in larceny, the taking and carrying away must be proved; and in a prosecution for robbery, it is necessary to prove the taking by force and violence from the person, before any testimony can be admitted respecting the felonious intention. The true and natural order in all prosecutions is to shew first that the principal act on which the charge depends has been committed.

The gentleman who opened the cause argued it on the princiciples of common sense, which he says is sometimes in discussion not adhered to by lawyers. Let us examine whether he has himself verified this sentiment, and how his doctrine applies to this case. Does not common sense require, that the act which is the very foundation of the charge, should be proved in the first instance? Would it not be absurd to go into evidence to shew that the act was committed with a treasonable intent, without any testimony to prove that the act was committed at all? Is it rational to inquire into the design and intention with which an act has been performed, without proving that it has been performed?

The gentleman who spoke so eloquently against our motion, says, that the jury must judge of the weight of evidence, and that the court cannot stop the prosecutor in his examination of witnesses, and command the jury to find such a verdict as it pleases to require! The general principle is not controverted by us, but we deny the inferences which he has drawn from it. The jury are certainly to decide on the weight of evidence, but the court is to pronounce the law, on what is or is not legal evidence.