“First,” he said, “it must be proved that there was an actual war. A war consists wholly in acts, and not in intentions. The acts must be in themselves acts of war; and if they be not so intrinsically, words or intentions cannot make them so. In England, when conspiring the death of the King was treason, the _quo animo_ formed the essence of the offence; but, in America, the national convention has confined treason to the act. We cannot have a constructive war within the meaning of the Constitution. An intention to levy war, is not evidence that a war was levied. Intentions are always mutable and variable; the continuance of guilty intentions is not to be presumed. Secondly, the war must not only have been levied, but Colonel Burr must be proved to have committed an overt act of treason in that war. A treasonable intention to coöperate is no evidence of an actual coöperation. The acts of others, even if in pursuance of his plan, would be no evidence against him. It might not be necessary that he should be present, perhaps; but he must be, at the time of levying the war, coöperating by acts, or, in the language of the Constitution, be committing overt acts. Thirdly, the overt act by the accused, as an actual war, must not only be proved, but it must be proved to have been committed within this district. Fourthly, the overt act must be proved by two witnesses.” The Chief Justice declared this view of the law to be correct, and General Wilkinson’s deposition was accordingly put aside. Mr. Hay realized the utter futility of his efforts to commit Burr on the charge of treason at this stage of the case, and readily consented to Burr’s proposition to double the amount of his bond to answer the charge of a misdemeanor. Luther Martin, who appeared for the first time, became one of his sureties. He declared in open court that he was happy to have this opportunity to give a public proof of his confidence in the honor of Colonel Burr, and of his belief in his innocence. General Wilkinson had not as yet put in his appearance, and much impatience was manifested because of the inconvenience he had caused. The grand jury were therefore adjourned from day to day until the second day of June, when they were adjourned until the 9th, on which last named day he was expected to arrive.