The remark about Justice Chase was preliminary to a dissertation on the institution of trial by jury. “If,” Hay averred, “it ever shall be determined by this Court that it has it in its power to take the decision of facts from the jury, the trial by jury, one of the greatest bulwarks of civil liberty, may be struck down and destroyed.”
The great question at issue in this case, he said, was compounded of law and of fact, of which latter the jury were the judges. Therefore every allegation which related to the indictment, all the evidence relating to and bearing on the issue, ought to be brought forward and heard by the jury. The prosecution held that Colonel Burr was guilty of levying war against the United States. Colonel Burr said he was not. The evidence the defense sought to exclude bore directly on the point at issue. Mr. Hay expressed himself as positive the framers of the Constitution never intended to take the decision of the general issue in a criminal case away from the consideration of the jury and give it to the judge.
The speaker paused for an impressive moment and then, selecting his words with care, addressed the bench: “I consider this principle of the trial by jury, preserved in its uttermost purity and independence, as connected with the best principles of the human heart. It ought to be viewed and approached with the utmost reverence and caution; and when a judge is called to do what may lead him to encroach on this principle, he will advance with the utmost circumspection and awe. I will take the liberty to say that it will be far more safe and correct to remain a thousand miles on this side of the line which separates the rights of the Jury from those of the Court, than to go a hair’s breadth beyond it; and if he should encroach he ought for no human consideration to touch it. If ever he do, he undermines civil liberty.” That short dissertation on trial by jury must have made some of those present wonder if they had misjudged when they wrote George Hay off as a mediocrity.
The District Attorney returned to the old question of whether actual presence of the accused at the scene of the overt act was necessary to sustain a charge of treason. Suppose, he said, Colonel Burr had never been on the spot where the overt act was committed. Suppose he knew his men were there and about to be attacked. Suppose he sent more men there to help them, along with arms, ammunition, and provisions and all other things necessary for their defense. Suppose an attack was made and repelled and thousands fell in the battle. Would it be contended by the gentlemen of the defense that Aaron Burr, not having been personally present when this overt act of his procurement was committed, was not a principal but an accessory? That his soldiers were principals in treason, but he was not? To prove the fallacy Mr. Hay proposed that they look at the result. He is innocent and safe. They are guilty and punished.
“Is it possible,” he asked, “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?”
Mr. Hay closed his argument by reverting to Mr. Wickham’s expressed fear that the doctrine the prosecution asked the Court to sanction would be fatal to the liberty and happiness of the people of the United States. He pictured Mr. Wickham trembling for his country, himself, and his posterity lest the prosecution succeed.
“I too am a citizen of this country,” he declared, “and the father of children for whose happiness and welfare I feel a solicitude as lively and affectionate as any parent can feel. To the true happiness of my country I hope I know that I am sincerely and ardently attached. But I see no danger. I apprehend none for myself or my posterity. I am perfectly willing to risk my own life, liberty and happiness, and those of my posterity on the propriety of the principles which we recommend. Let them avoid traitorous conspiracies and designs fatal to the liberty and happiness of their fellow citizens; let them avoid traitorous assemblies, overt acts of war, and they will be safe.”
Thus concluded Mr. Hay. Next on the list of pleaders was Luther Martin, but he sent word to the Court that he was not ready. So Mr. Charles Lee, of the defense, arose to fill the breech. It was one of the rare occasions when he was recorded as having spoken.
Counsel for the defense had been waiting impatiently for a chance to pounce on the District Attorney from the moment he brought up Justice Chase and the Fries case. Now Mr. Lee had that agreeable opportunity.
“The gentleman said in substance there was no difference between the opinion which we desire you to give and that for which Judge Chase was impeached,” charged Mr. Lee, addressing the Chief Justice. “It was very kind of the gentleman to remind the Court of the danger of a decision of the motion in favor of the prisoner, a decision like that which has already produced the impeachment of another judge.”