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trine which was advanced the other day, that a majority ought to govern, we shall not find it so safe; for we may find from experimental writers on the subject, that factions are more felt in a free government, than under one which is despotic. We have our parties and our factions, to be sure; but in the country governed by Bonaparte, or in his camps, there is no faction or party: but who would not prefer the government of laws? Upon the ground, therefore, of keeping us from the power of party, and fixing the principle of crimes, our constitution and laws were established.
Sir, I have gone through what I had proposed. These are questions, which not only affect my client, but the citizens at large of this country: and I only observe, that when the counsel have to oppose this doctrine, it must be upon abstract principles; and there is no ground be. sides, of whatever nature. Indeed, they must contend, or admit, that the constitution of the United States, which was drawn with so much care and attention, is a dead letter-that the citizens of the United States may be hurried, no matter how, from one end of the United States to the other; and be charged with the commission of crimes where they never have been, and in company with persons utterly unknown to them. All this, and more might be the consequence. They might be tried under an indictment that does not even specify what they were brought there for— They might be liable for crimes that are not even named; and connected with persons that they never heard of. Indeed, they must go beyond that: they must even say that judge Jeffries was right, and that all the moderate sages of this country were wrong, before they can convict my client of treason. Besides this, they must contend that the law of treason is totally misunderstood; and that it is whatever they please to make itand that levying war against a government is to be done,
without arms, without military force, and without men! All this, and more, must be contended for, upon this principle, wherever the crime shall be charged, and against whomsoever. I do not, here, pretend to charge the government: God forbid that I should make the slightest reference to their being the authors of this prosecution, or that I should ascribe it to any of the gentlemen on the other side. I believe that both the government and they would disclaim any wrong action. But there may be some agents who would wish it; and who ought not to be trusted so far as they are in the concerns of the government. However, I wish to make no reflections, but to consider the question more as regards futurity, and not my client, who cannot be involved under this indictment. The principles themselves, and not my client, particularly, demand the attention of the court; and solely upon this ground I have taken up so much of the time of the court.
SPEECH OF MR. WIRT,
ON THE TRIAL OF AARON BURR, LATE VICE-PRESIDENT OF THE
UNITED STATES, FOR HIGH TREASON.
(IN REPLY TO MR. WICKELAM.]
MAY IT PLEASE YOUR HONOURS: 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 proceed, if I thought the motion itself well founded. I stand here with the same independence 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 hu
manity and justice of this nation would revolt at the idea of a prosecution pushed against a life which stood protected by the laws; but whether they would or not, before I would plant a thorn in my own heart to rankle there for life, by opening my lips unconscientiously in such a case, I would seal them up for ever. Believing, however, as I do, that this motion is a mere manæuvre to obstruct the enquiry, 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 hold it my bounden duty to proceed.
And while I do so, let me request the prisoner and his counsel to consider the difficulty of clothing my argu. ment 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 home upon him the charge of treason against the United States. Treason is the charge; 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 undermine the liberties of a great portion of the people of this country, and to subject them to an usurper and a despot, we are obliged to use the terms which convey these ideas. Why, then, are gentlemen so sensitive? Why on these occasions so necessary and so unavoidable, do they shrink back with as much agony of nerve as if, instead of a hall of justice, we were in a drawing room with Col. Burr, and were barbarously violating towards him, every principle of decorum and humanity.
We have, indeed, been invited by Mr. Wickham to conduct this argument on abstracted ground; and have been told that it is expected to be so conducted: 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 ele. mentary 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 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, that it has a fair title to Justice Vaughan's epithet of decantatum; in speaking then of this overt act, we are compelled to enquire not merely into the fact of the assemblage, but the intention of it; in doing which we must examine and develop 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, sir, is a bold and original stroke in the noble science of defence. It shows the hand and genius of a master. For while it gives to the prisoner the full benefit of his legal defence, of the whole and sole defence which VOL. II.
he would be able to make to the jury, if the evidence were gone through, 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 that assemblage, and to stamp, beyond controversy, the character of treason upon it. Connect this motion with that which was made by the prisoner the other day, to compel us to begin with 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 sin. gle fact, the insulated fact of the assemblage on the island, without any of that evidence which explains the intention and object of that assemblage; thus gentlemen would have cut off all the evidence which carries up this 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: Of the world of evidence which we have, we should have been reduced to the speck, the atom which relates to Blannerhasset's island; General Eaton's published narration, hitherto so much and so unjustly reviled, would have been without the strong corroboration of Commo. dore Truxtun, and the still stronger and most extraordinary evidence 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 extrava. gance 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 at