The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-08-21
TRIAL OF AARON BURR, &c.
FUDGE MARSHALL. OPINION


tive the order of evidence, which decided by
this COURT the motion to commit, yet it is now
prefented under fomewhat different circumstances
aud may, therefore, not be coniidered determined
by the former decifon. AT that time, no indi2-
ment was found, no pleadings exifted, and there
no nandard, by which the court could determine
the relevancy of the teltimony offered, until the
faa to which it was to apply, fhoud be dfclofed.-i
There is now an indictment fpecifyng the charge
which is be proved, the part Of the prolec uton
there is an hiue made up, which prefents point to
which all the seamsny nua apply, and eonfequently
it is in the power of the court to determine with
fome accuracy, the relevancy of the teltimony
which may be offered.
Its coutended in fupport OF the motion which has
been made, that, according to the regular order of
evidence and the uage of COURTS the exRence of the
faa on which the charge depends, ought to be
ihown before any tefimony explanatory, or con-
hrnatory of that faa can be received. AgainR the
motion con,ended that the crime alleged in the
indictment, conlilts of two parts the fata and the
Intention and that ii is in the dcreon of the attor
pey for the United States frt to adduce the one or
the other; that initsnce has occurred of the
interference Of with that arrangement which
he has thought proper to make.
Asis not unfrequent, the argument on both fides
appears TO be, in many refpeas correct. 1t is the
mot ufsa aud appears be the natural order of ter
tinony to ihow, hrh the exi(fence of the faa ref
pecting which the enquiry is to be made. 1t is
anqueftionably attended with this advantage there
is fixed and certain object to which the mind APP
plies with Precifion, all the teaimony which may be
received and the can decide with lefs difficulty
on the relevancy OF all the tefn,ony which may be
offered. But this arrangement is clearly fnewn,
to be efabhed by any fixed rule of evidence, and
cafe has been adduced in which it has been forced by
the court, on the council for the prolecution.
On one fide it has been commended that by requir-
ing the exhibition of the faa in the fri inftanee,
I..l r. L
total failure OF proof with refpetf the faa =
and this argument has been anfwered, by obferving
that thond there even be uch failure they cord not
interpoie and arreh the progrels of the caufe but
mu permit the council for the prsfecution to proceed
with that teifimony which is offered.
Levying Of war, is fatt, which mutt be decided
by the jury. The court may give general inffrutt-
ons on this, as on every other queiion brought be-
fore them, bat the jury NUT decide upon it as com
pounded OF fact and law. Two aifemblages Of men
not unlike in appearance politely may be, the one
treaionable and the other innocent. If, therefore,
the iact exhibited to the and jury, fhould i'm
the opinion OF the court, not to the aa of
ievyng war, the court could not flop the proieeution
but mutt permit the couafel for the United States
to proceed to fhow the intention of the at, in order
to enable the jury to decide upon the FACT coupled
with the intention.
The eoniumption of time would probably be near
y the iame whether the council for the prececution
commenced with the fa4 or the intention, provided
thoie dfcufhons which refpeet the admibility of e.
violence would be as much avoided in the enc mode
as in the other. The principal importance which
viewing the queaion in this ght would feem to at
tach to its decifion, is the different mprefions which
thefaa tfeif might make, if exhibited at the com.
meneenent or clofe of the profecution.
Although human laws punilh actions, the human
mind fPontaneoufly attaches guilt to Intentions
The fame fact, therefore, may be viewed very diff
ferently, where the mind is prepared by courfe of
teitlmony, calculated TO impress it with conviction
OF the criminal degns of the aceufed and where the
fact is fiated without fuch preparation. The overt
act may be fuch as to influence the opinion on the
teitmony afterwards given, refpeaing the intention
and the teltimony reipe Cling the intention, may be
fuch, to influence the opinion OH the teffinony,
which may be afterwards given reipeamg the overt
act.
On the queaor Of confirming time, the argument
was placed in one point of view by the council for
the defence, which excited fome doubt, The cafe
was uPpofed of only witnels the overt acf and
declaration that it could be proved by no other
The court was alsed whether the council would be
Permitted then to proceed examine the intentions
OF the accued, and to do worfe than waite the time
OF the court and jury, by expong without pofible
object the private views and intentions of any per-
fon whatever.
Perhaps in facha cafe the caufe might be arrehed,
but this does appear the inference that
two witushes did not appear the court, amount
to the act oflevying war. In the cafe fuppofed, the
declaration of the law is poftive, and point proper
be referred the occurs which fupends the
right of the jury, 20 conder the ubea, and compel,
them to bring in verdict Of not guilty. In fuch 4
cafe, no tefimony could be relevant, and all teftmo-
ny aught to be excluded. Suppoe the council for the
Profecution hould fay that he had no teftimony to
prove the treaionable intention That he believed
confidently the objea of rhe anemblage of men on
Blannerhahett's Hand to be innocent That it did
not amount to the crime of levying war Surely it
would be wanton and ufeels waite Of time to pro-
coed with the examination of the overt act. When
fuch cafe occurs, it be doubted that a nolle
Proiequi will be entered, the jury be directed with
the content Of the attorney find verdict of not
guilty.
1t has been truely hated that the crime alledeed
in the ind tment conis Of the fact and of the nen-
ton with which that fact was committed. The tef-
tnony dfcloGng both the fact and the intention muil
be relevant. The court finds no exprefs rule Eating
the order in which the attorney ndduee relevant
any cafe in which a court has inter-
fered with the arrangement he has made No altera-
ton OF that arrangement therefore will now be
directed.
But it is proper TO add that the intention which is
confdered as relevant in this Rage Of the enquiry is
the intention which compofes part Of the crime the
intention with which the overt af telf was commit
ted; not general evil difpoGtion, or an intention TO
coRlmit diitina faSt. This fpeces of teftimony if
admble at all, is received eorroborative or confr-
matorY telimony. IL does not felf prove the nen-
on with which the aa was performed bur il renders