August 26-27, 1807
Richmond, Virginia

A large portion of Mr. Hay's argument was devoted to the question, whether the motion to arrest the evidence was one which, on principle and precedent, could be entertained by the court. He contended that no precedent could be found to justify such practice, either English or American. He insisted that the motion called upon the court to usurp powers belonging exclusively to the jury, by deciding upon the facts of the case. To wrest from the jury the decision of facts in a criminal prosecution, he said, was a most dangerous proposition, replete with incalculable mischief. He felt infinitely more solicitude about the preservation of this principle in all its purity, than for the correct construction of constitutional treason, as contradistinguished from constructive or oppressive treason.
In answer to arguments on the other side, Mr. Hay said the counsel all call aloud for an open deed of war. But neither the constitution nor the law speak of an overt act of war. They speak of levying war. There was a real, essential difference between an open deed of war and an overt act of levying war. An open deed of levying war is an assemblage of troops. If you go beyond that line, if these troops employ force or fight a battle, it is folly to call it an overt act of levying war; it is an open act of war previously levied. Is not this distinction, he asked, plain to the mind of every man of common sense? and is it not according to the obvious meaning of the constitution? Why, then, should counsel call so loudly and vehemently for open deeds of war, when they must have known that the overt act of treason consisted in levying war against the United States, and not in making it?

In reference to the position that before the accused could be held answerable for acts of an accessorial nature, the guilt of the principals must be proved by a record of their conviction, Mr. Hay said there was no law to warrant the application of the rule to this case. The real doctrine was, that if a man be indicted as an accessory, he is at liberty to state before his trial, when the indictment is called, that he does not choose to be tried till the principal be convicted. The judge knows that his objection is valid, and he suspends the prosecution till the principal be convicted; either confining him in prison or bailing him till his trial, according to the circumstances of the case. The accused may choose to be tried, and waive the right of suspending the trial. It never was in the power of the accessory, after he had been arraigned and plead not guilty to the indictment without objection, when the found that the testimony bore heavily upon him, then to call for the record of his principal's conviction as a preliminary point. He contended that this right to call for the record of the conviction of the principal only existed in case of an accessory indicted as an accessory; and could not exist in this case, because the accused was not charged as an accessory, but as a principal.

In reply to the position that inasmuch as Col. Burr was not present when and where the pretended overt act was charged to have been committed, he could be guilty, if at all, only in an accessorial capacity, Mr. Hay said: Mr. Wickham says that his proposition, that Burr is an accessory and not a principal, is deduced from the constitution of the United States, their laws, and the laws of England. His first position was, that there is no treason in the United States but that which is defined by the constitution. Agreed. This is sound doctrine.

His next position was, that no man can be punished but he who does the act thus defined. This is conceded also. But when he says that this act of levying war against the United States cannot be performed but by a person present on the spot where the offence is alleged to be committed, I deny the correctness of the position, and aver that it is not founded in sound sense, or in the law of this country or of Great Britain. A man may levy war without being present with the troops where the offence is alleged to be committed, or even without making actual war at all. It is unnecessary to press the distinction between levying war and war itself. The common sense of mankind has decided this question. The man who levies war is he who projects the plan, provides the means, causes soldiers to be enlisted, and arms and other necessaries to be prepared, and directs and superintends the whole operation. He may sometimes be also master of means sufficient for the subversion of the liberty and happiness of a whole people. What would be the course of conduct which a man, at the head of a conspiracy to subvert the government of his country, and to raise himself on its ruins, would pursue, you may easily judge. Supposing him to be a man whose understanding was equal to his ambition, he would proportion the means to the end. He would use activity and enterprise. He would be confined to no particular scene of operations. He would be here and there and at every place, where and when it would be necessary to prepare for the accomplishment of his great object. He might give directions to different bodies of troops to meet him at given times and places, while in the intermediate time he might make arrangements at different places to prevent disappointment, and to secure final and ample success. Is it necessary, according to common sense, that a leader should be present at the very moment when an assemblage of part of his soldiers is to meet at a particular place in consequence of his previous orders? There may be twenty different assemblages. If he be a man of talents, intelligence, and activity, he may have formed his designs so wisely and concerted his measures so skilfully, as to have fifty, or five hundred, or even a thousand different assemblages and subordinate plans conducing to one common end, all going on at the same time without his actual presence. He is not present at any one place, but he directs and commands everywhere, and vigilantly waits for a favorable moment till he can strike a final and decisive blow. On principles of common sense it is not essential, therefore, that the commander should be present at any preconcerted assemblage of his troops. I repeat, that the common understanding of mankind has decided this question. We find (and every expression used here may be soon verified) that George III. levies war against the United States three thousand miles from us. It is he who declares the war, by whose directions the troops are raised and employed. It is he who levies the war, and not his subjects, who fight the battles; his generals and soldiers, who come hither for slaughter and murder, they make the war upon us, but they do not levy it. If the subjects of the king of Great Britain were to levy war upon this country, they would not be entitled to be considered as public enemies, but robbers, pirates, and murderers, according to the acts which they would commit; and, therefore, instead of being treated as public enemies, they would be regarded as individual offenders who had perpetrated those crimes, and proceeded against as such. But as he levies the war, they become public enemies in consequence thereof. A man may, on principles of common sense, not only levy war, but make war without being present at the place where a battle is fought. Bonaparte was not actually on the field at the battle of Austerlitz. I do not know that he was in view of the line of battle. He was in the rear with the body of reserve; yet the victory gained on that memorable day was gained by him, because he stationed the troops, directed their movements, and stood ready to give assistance; and the glory of that victory, so decisive of the destiny of Europe, was his. He not only levied but made war, without being personally present.

Such is the case here: admit it to be true that Burr was not on the island, yet the men who went, met there by his procurement and direction; they leave it by his direction; and he afterwards joins them, and takes the command. So that in coming to, remaining on, and quitting the island, they act in exact obedience to his command. If the assemblage on Blennerhassett's Island were an overt actof levying war, the person who procured that assemblage, by whom its movements to and from the island were directed, is emphatically guilty of levying war against the United States. Let us pursue this argument a little further; suppose that Burr had never been atthe spot at all, but he knows that his troops are there. He apprehends that an attack is to be made on them; and to repel it, he dispatches more men, arms, ammunition, provisions, and everything necessary for their defense, with orders to resist, and instructions how to conduct the battle which is actually fought. The attack is made and repelled. Thousands fall in the battle. Would he not, then, levy war? Would it be contended by gentlemen that by the constitution of the United States, Aaron Burr, not having been personally present when this over act of his procurement was committed, was not a principal but an accessory? that his soldiers are principals in the treason, but that he is not guilty? that the constitution requires the actual presence of the commander-in-chief whenever a battle is fought by any part of his army, or wherever an attack is made or repelled? If he would be guilty of levying war, what becomes of the doctrine which requires his presence? The constitution requires his presence nowhere.

To prove, however, the fallacy of this doctrine, let us examine the result. He is innocent and safe. They are guilty and punished. Is it possible that the human mind can be so perplexed by learning and so misled by ingenuity, so totally bereaved of all its powers, as to adopt a conclusion like this? to pronounce that the great projector, the prime mover of the whole conspiracy and plot, is constitutionally safe, while his deluded followers are to be hanged? Yet this is the language and this the doctrine of Mr. Wickham. He would make as little ceremony with Blennerhassett as Burr said he would use to Miranda. As to Miranda, said he, "We will hang Miranda." It appears to me, sir, that that construction of the constitution which leads to such a conclusion, which shall exculpate Burr and hang Blennerhssett, which leaves the principal to destroy the agent, is not only repugnant to common sense but to every dictate of feeling and humanity. There is sufficient reason to deplore the misconduct and crime of Blennerhassett. He has certainly done wrong and offended against the laws of his country grievously; but I hope to be excused for declaring that there is no more comparison between Blennerhassett and Burr, as to criminality, than there is between the breeze which gently shakes the leaves and the storm which desolates the earth.If this construction be not founded in reason, let us call for the law which sanctions the doctrine for which he contends. If we look at home we shall find that this question has been decided already by our own judges. The supreme court of the United States has solemnly decided it, in direct opposition to what gentlemen have insisted to be the law. But they say that it ought not to be regarded, because it was an extra-judicial decision. Mr. Wickham, finding it inconvenient to prove it, pretends to anticipate our admission of it, and with his usual dexterity takes it for granted that he has nothing to do but to follow up that supposed concession. Let us examine the subject and see whether it be extra-judicial or not. Bollman and Swartwout, who were never at Blennerhassett's Island for with the troops, were before the court on suspicion of high treason. A motion was made to commit them on this charge. Having been brought before the court on a writ of habeas corpus, a motion was made by their counsel to discharge them. Those cases came first before the circuit court for the county of Washington, and the records of that court, containing the orders by which they were committed on the charge of treason in levying war against the United States, and the testimony on which the commitment was made, were brought before the supreme court. I do not know by whom they were defended in that court or in the circuit court.But I take it for granted when I turn my eyes to that part of the world that they were defended with ability and zeal.They were not present on Blennerhassett's Island, nor with any part of the forces of Colonel Burr; and though not present they were charged with treason. I certainly am at liberty to suppose, whoever may have been their counsel, that they were defended with great zeal and ability, and that they were defended on this ground. From the extreme zeal displayed in the course of this defence, we may infer what defense was made for those persons; and if so, the decision of the supreme court was on the very point, and must be conclusive authority in this case....

Sir, we have never gone one step out of the right path, as far as we could trace it. We have confined ourselves within the fair exposition of the constitution of our country, according to our several capacities. I may be mistaken; but I have heard nothing yet to induce me to think that my exposition of the constitution and laws is incorrect. I have not stated a single fact which I did not believe to be true, nor urged a single argument which has not operated conviction on my own mind. Nor have the great and persevering exertions of the counsel of the accused, with all the splendor of their talents and the depth of their researches, enabled them to advance a single principle of defence which, in my estimation, hath not been amply refuted.

With this view of the subject, and believing the liberty, prosperity, and happiness of the people to be strongly connected with the decision of this case, I cannot conclude without expressing my hope that the motion will be rejected; that according to the opinion of this court on a late occasion, they will not stop the prosecution, but permit us to introduce the rest of our witnesses, in order to enable the jury to decide upon the facts coupled with the intention.