August 20, 1807
Richmond, Virginia

Aaron Burr argued that prosecution evidence should not be admitted unless it related to establishing that Burr participated in an "overt act of war." The prosecution had intended to produce an additional 135 witnesses to establish Burr's guilt, but Burr's motion effectively ended the prosecution case after Chief Justice Marshall ruled in his favor.

Before the gentleman proceeds with his evidence, I will suggest that it has appeared to me that there would be great advantage and propriety in establishing a certain principle founded upon the facts which have been presented to the court. [Burr] said the facts which had been presented were to be taken for granted; and yet they utterly failed to prove that any overt act of war had been committed; and it was admitted that he was more than one hundred miles distant from the place where the overt act is charged to have been committed. He denied that any evidence was admissible to connect him with other persons, in acts done by them in his absence, and even done without his knowledge; or that facts brought from distant places could be connected with those done at Blennerhassett's Island, to give to the acts done there the name of treason, when no overt act of war was committed at that place. He commented upon the opinion of the supreme court in the Case of Bollman and Swartwout, and said that it had been totally misunderstood by the counsel for the prosecution. The defence had the right here to call upon the attorney for the United States to say whether an assemblage of men merely can be called, or in any way tortured into an act of "levying war." This point must be inevitably determined at some stage of the examination, and therefore they had the right to require of the prosecutor to show that every witness will give testimony tending to prove an overt act of war, or his testimony would be irrelevant and immaterial.

Another point was, whether a person not present, remote, in another district, can be considered, in any possible legal construction, to be present, and concerned in the transaction, so as to make him a principal in the guilt of it. If not, then the necessity of examining the remainder of these 135 witnesses is done away, because their testimony can have no bearing on the case. If, said he, the gentlemen mean or expect to prove an overt act; if they mean to prove that I am the source of the whole transaction, and that there was anything like an act of violence on Blennerhassett's Island, and that there was actual war waged, actual exertion of force used, a collision of arms, or the like, then to be sure the case will have a right to go on to that point; but even then there would be an absurdity, because of my being absent at that time, at a distance where I could not take a part in it. The gentlemen who are engaged with me as my counsel will enlarge on these points, and, if I am not mistaken, they will prove that this is the moment when the argument and decision will be most applicable, because upon the result will rest the future fate of the case.

Now, if my ideas are right, the gentlemen mean to argue that a bare assemblage of men, coupled with previous treasonable declarations, is treason. I understand that they mean to contend further, that a person not being present, but absent from the place where the treason is laid, he having counseled and advised the operations, should be denominated a principal in the treason. But this, I shall contend, is a species of constructive treason. Again: I shall ask what an accessory means, and prove that if it means what they think it does, resort must be had to the exploded common law of England. These questions, sir, will demand some attention from the court, and will be extremely interesting to the country at large, because every man might be affected by them. Gentlemen ought to come forward and say that they mean to charge me upon the common law: that though there was no force used in reality, yet by construction there was force used; that though I was not personally present, yet that by construction I was present; that though there really was no military array, yet by construction there was military array. Now, sir, we totally deny all these things, upon the soundest principles, and it is full time that it should be known what is, and what is not, the law on the subject.

Mr. Hay said he had no objection to any fair inquiry into these principles; but the motion was premature. He believed testimony would be introduced, and that presently, which would give a very different aspect to the transactions on Blennerhassett's Island to what had appeared. Although there was not on that island what Mr. Lee had called "open war," no "collision of arms," or "hard knocks," they would prove that there was "military array"; that the men were collected for military purposes, and that a military object was in view. It was impossible then to tell in what precise light the transactions on Blennerhassett's Island would ultimately appear, because new light was every moment coming in. He asked if the court after all that had been exposed, and with the uncertainty as to what might be brought to view, would undertake to say that an overt act of treason had not been proved. That was a fact to be ascertained by the jury. It was their province, and theirs only, to say whether the act has or has not been committed. The object of the motion was not to save time, but it was to prevent the public from seeing what they ought to see. He denied that there was any privilege or authority in this court, or in the courts of Great Britain, to arrest inquiry and tell the jury that the act had not been proved, and therefore there was an end to the case. When the whole of the testimony should be laid before the court, it would then be in the power of the accused to address to the court a motion to instruct the jury on any point of law which the circumstances of the case might require. It would then become the duty of the court to take up the subject and say what is the law upon the case; and the jury would take the facts under their views, and regulate their verdict agreeably to the law and the facts that may appear. He did not understand what the common law had to do with any inquiry before our courts, except it was any part of it adopted by statute. He was willing to steer clear of the common law, and go entirely upon the principles of statutory law and common sense. The case was a charge for an overt act of treason in levying war. Would common sense say, or would our statutes or constitution require that the person who had produced all this commotion should be present when the battle was fought, or even when the troops were collected for the enterprise? He conceived the question to be,whether the accused was principally concerned with it -- whether he did project and carry it on with a design to complete it? And how could this be ascertained, unless the prosecution were permitted to go on with the evidence?

Mr. Wickham, in answer to the allegation that it was not a proper time to bring forward such a motion, denied that, during the whole three days that had been occupied in the examination of witnesses, there had been a single word, by any one witness, that could tend in the least to support the indictment. It is proved, (said he,) and the attorney for the United States declares, that Colonel Burr was not present at the time and place charged. Now we declare that it is absolutely necessary to prove the fact of presence at once: we say the indictment must inevitably fail without it. The counsel for the accused propose now to go into this question, and I trust the court will hear them. He would give an intimation to the counsel for the prosecution, that they should take a wide and extensive range on the subject, and by which they were convinced there would be a stop put to the case at once.

Mr. Burr added: The gentlemen were about to proceed to connect me with the act. I deny, sir, that they can do so. They admit that I was not there, and therefore let the nature of the transaction be what it may, it cannot affect me. Again: I deny that there was war, at all, and no testimony can be brought to prove that there was war; and surely the article war is of imperious necessity in the charge of treason. Now, if this be true, will the court go on week after week, discovering nothing that can affect me? I was desirous that the court, the jury, and the country should know what was charged against me; this has been done, and it has been found that I cannot be connected with the facts. I demand the opinion of the court on these points.

Mr. Martin spoke of the great length of time that the trial would probably last, if the prosecutor was permitted to go on in his own way. It was a very sickly season, and the probability of sickness among some of the jury or the court was very great, which would prevent the case going on. If one of the jurors should die, however far the case may have progressed, the trial must begin anew.

The CHIEF JUSTICE said that there was no doubt that the court must hear the objections to the admissibility of the evidence; it was a right, and gentlemen might insist on it. But as some of the transactions on Blennerhassett's Island remained yet to be gone into, he suggested whether it would not be as well to postpone the motion till that evidence was gone through.

Mr. Burr. -- I have no objection to that, if they do confine themselves to Blennerhassett's Island, and strictly to transactions on that island; if so, we will hear it.