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From the Richmond Enquirer.
COLONEL BURR.
On Wednesday last, April 1, Chief Justice
M aushali delivered the following opinion, I
on the motion to commit Col. Burk.
The U. 5.~% *
w V- On a motion for a commitment.
A. Bi'bk.j
I am required on the part of the Attorney
for the United States, to commit the accused
on two charges.
Ist. For setting on foot and providing the
means for an expedition against the territories
of a nation at peace with the United States.
2d. For committing High Treason against
the United States. On an application of this
Kind, I certainly should not require that proof
which would be necessary to convict the per
son to be committed, on a trial in chiefs nor
should I even require, that which should ab
solutely convince my own mind of the guilt of
the accused ; hut I ought to require and I
should require that probable cause be shown,
and 1 understand probable cause to be a case
made out by proof furnishing good reason to
believe that the crime alledged has been com
mirted by the person charged with having com
mitted ir.
1 think this opinion entirely reconcilable
with that quoted from Judge Blackstone.—
When that learned and accurate commentator
says, that “ if upon enquiry it manifestly ap
pears that no such crime has been committed,
or that the suspicion entertained of the prison
er was wholly groundless; in such cases only,
it is lawful totally to discharge him: other
wise he must be committed to prison or give
baill do not understand him as meaning to
say that the hand of malignity may grasp any
individual against whom its lute may be di
rected, or whom it may capriciously seize,
charge him with some secret crime, and put
him on the proof of his innocence. But 1 un
derstand that the foundation of the proceed
ing must be a probable cause to believe there
is guilt; which probable cause is only to be done
away in the manner stated by Blackstone
The total fa lure of proof on the part of the
accuser would he considered by that writer, as
being in itself a legal manifestation of the in
nocence of the accused.
In enquiring therefore into the charges ex
hibited against A. Buvr, I hold myself bound
to consider bow far these charges arc support
ed by probable cause.
The first chaTgc stands upon the testimony
cf Gen. Eaton and Gen. Wilkinson.
The witness first named proves that among
other projects which were more criminal, col.
Burr meditated an expedition against the
Mexican dominions of Spain. This depositi
on may be cWn%!ered as introductory to the
affidavit of Gen. Wilkinson, and as explana
tory of the objects of any military preparations
a'hich may have been made.
I proceed theri to that affidavit.
To make the testimony .of Gen. Wilkinson
bear on Col. it is necessary to consider
, as genuine thfjjpcc stated by the former to
as make it.mn interpreta
tion of qpe ftceived in cypher from the latter.
Exclude this letter, And nothing remains in the
testimony, which can in the most remote de
gree affect Col. Burr. That there are to the
admissibility of this part of the affidavit, great
r and obvious objections, need not be stated to
those, who know with how much caution pro
ceedings in criminal cases ought to be institut
ed, and who know that the highest tribunal
ol the United States has been divided on them.
When this question came before the Supreme
Court, 1 felt the full force of these objections
although J did not yield them. On weighing
in my own mind the reason for and against
•cting, in this stage of the business, on that
paw of the affidavit, those in favor of doing so
* appeared to me t and, as this
opiniqji w*ks not overruled, I hold myself still
• "ftt liberty to conform to it.
-That the original letter, or a true copy of
it accompanied by the cypher, would have
been much more satisfactory, it is not to he
denied > but I thought, and still think that,
upon a mere question, whether the accused
shall be brought -to trial or not, upon an enqui
ry not but into’the probable cause,
the omission of a circumstance which is in
deed*‘impofia.m,< but which does nflt disprove
the positive allegations of an affidavit, ought,
* 4 not to induce its rejection or its absolute dif
%dief, when the maker of the affidavit is et
too great distance to repair the fault. I could
not in this stage o( the prosecution absolutely
discredit the affidavit, becauso the material
facts alledged may very well be within the
’knowledge of the witness, although he has
failed to state explicitly all the means by which
this knowledge is obtained
Thus, Gen Wilkinson states that this letter
was received from Col. Burr, but does not s?y
that it was in his hand writing, nor does he
state the evidence which supports this affirma
tion. but, in addition to the -circumstance
that the positive assertion of the fact ought not
perhaps, in this stage of the enquiry, to lie dis
regarded, the nature of the case furnishes that
evidence.
The letter was in cypher. Gen. Wilkinson,
not say that a cypher hail been
* 'b-tween Col. Burr and him
sof, in which they might correspond on sub
jects which though innocent, neither of than
might wish to subject to the casualties of a
transportation from the Atlantic to the Missi
sippi; but, when we perceive that Col. Burr
has written in cypher, and tiiat Gen. Wilkin
son is able to decypher the letter, we must also
presume that the bearer of the letter was also
the bearer of its key, or that the key was pre
viously in possession of the person to w horn the
letter was addressed. In stating particularly
the circumstances attending the delivery of this
■letter, Gen. Wilkinson does not sav that it
was accompanied by the key, or that he felt
any surprise of its being in cypher. For this
reason, as wed as because there is not much
f more security in sending a letter in cypher ac
* . companied by its key, than there is in sending
a letter not in cypher; 1 think it more reasona
ble to suppose tha* the key was previously in
possession of \\ ilkiuson If this was the fact,
latter oeing written :n a cipher previously
settled between himself and Col. Burr, is i« j
this stage of the enquiry at least, a circumstance
which sufficiently supports the assertion, that
the letter was written by Cel. Burr.
The cnterprizc described in this letter is ob
viously a military enterprize, and must have
been intended either against the United States,
Pr against the territories of some other power
n lhe Continent, with all of whom the United
States were at peace.
1 he expressions of this letter must be admit
ted to furnish at least probable cause for belie v
ing, that the means for the contemplated expe
dition were provided. In every part of it, we
find declarations indicating that he was provid
ing the means for the expedition, and as these
means might he provided in secret, I do not
think that further testimony ought to be requir
ed to satisfy me, that there is probable cause
for committing the prisoner on this charge
Since it will be entirely in the power of the
Attorney-General to prefer an indictment a
gainst the prisoner, for any other offence which
he shall think himself possessed of testimony
to support, it is in tact, immaterial whether
the second charge be expressed in the warrant
of commitment or not; but as I hold it to be
my duty to insert every charge alledged on the
part of the United States, in support cf which
probable cause is shown, and to insert none in
support of which probable cause is not shown,
1 am bound to proceed in the enquiry.
I he second charge exhibited against the pri
soner, is High Treason against the U. States
in levying war against them.
As this is the most atrocious offence which
can he committed against the political body,
so is it the charge which is most capable of
being employed as the instrument of those ma-.
lignant and vindictive passions which may
rage in the bosoms of contending parttes strug
gling for power. It is that, of which the peo
ple of America have been most jealous, and
therefore, while other crimes are unnoticed,
they have refused to trust the national legisla
ture with the definition of this, but have them
selves declared in their constitution that “ it
, shall consist «mly in levying war against the
United States, or in adhering to their enemies,-
giving them aid and comfort.”, This Ugh
crime consists of overt acts which be prov
ed by two witnesses, or by the confession of
party in open court.
Under the controul of this constitutional re
gulation, I am to enquire whether the testimo
ny laid before me furnishes probable cause in
support of this charge. s The charge is, that
the fact itself has been committed, and the
testimony to support it must furnish probable
cause for believing that it has been actually
committed, or .it is insufficient for the purpose
for which it is adduced.
t Upon tliis point too, the testimony of Gen.
Eaton is first to be considered. Tha part,of
his deposition which bears upon thi? chafge,
is the plan disclosed by the prisoner for seiz
ing upon New-Orleans, arid revoiu ionizing
1 the western states.
That this plan, if consummated by otert acts,
would amount to treason, no man wil contro
vert. But it is equally clear, that an ntention
to commit treason is an offence entirely dis
tinct from the actual commission of that-crime.
War can only be leVjed by the dmflfdyment of
actual force. Troops must be embodied; men
must be assembled in order to levy war. *" If
Col. Burr had been apprehended on making
these communications to Gen. Eaton, could it
have been alledged that he had gcjie further
than to meditate the crime ? Could it have
been said that he had actually collected forces
and had actually levied war ? Moa certainly
it could not. The crime really completed was
a conspiracy to commit treason, not an actual
commission of treason.
II these communications were not treason
at the ins.ant they were made, no lapse of time
can make them so. They are not in themselves
acts, They may serve to explain the intention
with which acts were committed, but they can
not supply those acts if they be not proved.
The next testimony is the deposition of gen.
Wdkinson, which consists in the letter already
noticed, and of the communications made by
the bearer of that letter. *
This letter has already t&en considered by
the suprerhe court of the United States, and
has been declared to import, taken by itself
or in connection with Eaton’s deposition, ra
ther an expedition against the territories of
Spain, than of the United States. By that
decision 1 am bound, whether 1 concurred in
•it or not. But I did concur in it. On this
point the court was unanimous.
It is, however, urged that the declarations
of Slvartwout may be connected with the let
ter and used against Col. Burr. Although
the confession of one man cannot criminate
, another, yet I am inclined to think, that on a
merejenquiry into probable cause, the declara
tions of Swartwout, made on this particular
occasion, may be used against Col. Burr. My
reason for thinking so is, that Col. Burr’s let
ter authorises Mr. Swartwcut to speak in his
name. He empowers Mr. Swarfwout to make
to Gen. Wilkinson verbal communications ex
planatory of the plans and deigns of Burr,
which Burr adopts as his own explanations.
However inadmissible therefore, this testimo
ny may be on a trial in chief; I am inclined
to admit it on this enquiry.
If it be admitted, what is its amount ? Upon
this point too, it appears the supreme
court was divided. I therefore hold myself
at liberty to pursue my own opinion, which
war., that the words “ this territory must be
revolutionized,' did not so clearly apply to a
foreign territory as to reject that sense which
would make them applicable to a territory of
the United States, at least so far
ot further enquiry into their meanirtPUPid
if a territory of the United States was to be
revolutionized, though only as a mean for an
expedition against a foreign power, the act
would be treason.
This reasoning leads to the conclusion that
there is probable cause for the allegation that
treasonable designs were entertained by the
prisoner so late as July last, when this letter
1 was written.
j It remains to enquire whether there is also
I probable cause to believe, that these designs
have been ripened into the crime itself by ac
tually levying war agaiust the United States-
It has been already observed, that to con
, stitute this crime, troops must be embodied,
J men must be actually assembled; ard these
are facts which cannot remain invisible. Trea
son may be machinated in secret, but it can be
perpe’ra'td only in open day and in the eye of
the world. Testimony of a fact which in its
own nature t so notorious ought to be unequi
vocal. The testimony now offered has been
laid before the supreme court of the United
States, and has bten determined in the cases
cf Bellman and Swartwout, not to furnish
probable cause for the opinion that war had
been actually levied. Whatever might have
been the inclination of my own mind in that
case—l should feel much difficulty in departing
from the decision then made, unless this case
could be clearly distinguished from it. I will,
however, briefly review the arguments which
have been urged, and the facts now before
me, in order to shew more clearly the parti
cular operation they have on my own judg
ment.
The fact to be established is, that in pursu
ance cf these designs previously entertained,
men have been actually assembled for the pur
pose of making war against the U. States,
and on the shewing of probable cause that this
fact has been committed, depends the issue of
the preseHt enquiry.
The first piece of testimony relied on to
render this fact probable, is the declaration of
Mr. Swartwcut that “ Col. Burr was /vv'ir.g
an armed body of 7,000 men from the state of
New-York and the western states and territo
ries, w.ith a view to carry an expedition against
.the Mexican provinces ” The term
has been said, according to the explanation of
the Lexicons, to mean the embody»g of
troops, and therefore proves what Is required.
Although I do not suppose that
wout had consulted a Dictionary. I have look
ed into Johnson for the term'-and find its first
signification to be,' «« to raise;” its second
“to brinj; together.” In common parlance,
it may signify the one or the other.-—But its
sense is certainly decided the fact. If when
Mv. be
supptw*! to have beenluJWy; he was actual
ly embodying men from New-York to the
. western states, what could veil his troops from
human sight? An invisible army Is not the in
strument of war, and had these troops been
visible, some testimony relative to them could
have been adduced. I take the real sense
then in which this term was used to be, that
Col. Burr was raising, or in other Words en
gaging or enlisting men through the country
described, for the enterprise he meditated.
The utmost point to which this testimony can
be extended is, that it denotes a future embo
dying of men which is more particulaily men
tioned in the letter itself, and that it affords
probable cause to believe that the troops did
actually embody at the period designated for
their assembling, which is sufficient to induce
: the Justice to whom the application is made
to commit for trial.
I shall readily avdw my opinion, that the
strength of the presumption arising from this
testimony ought to depend gieatly on the time
at which the application is made. If scon
after the period at which the troops were to
assemble, when full time had not elapsed to
ascertain the fact, these circumstances had
been, urged as the ground for a commitment
on the charge of treason, I should have tho’t
them entitled to great consideration. I will
not deny that in the cases of Bellman and
Swartwout, 1 was not perfectly satisfied that
they did riot warrant an enquiry into the fact.
But I think every person must admit that the
weight of these circumstances daily diminish
es. Suspicion may deserve great attention,
where the means of ascertaining its real
grounds arc of may have been acquired; if
facts to support suspicion be not shown, eve
ry person I think must admit that the minis
ters of justice at least ought not officiously to
entertain it. T his I think must be conceded
by all, but whether it be conceded by others or
not, it is the dictate of my own judgment, and
in the performance of my duty I can know no
other guide.
The fact to be proved in this case is ah act of
public notoriety. It must exist in the vifew of
the world, or it cannot exist at all. The as
sembling of forces to levy war is a visable
transaction, and numbers must witness it. It
is therefore capable of proof; and when time
to collect this proof has been given, it ought to
be adduced, or suspicion becomes a ground too
weak to stand upon.
Several months have elapsed, since this fact
did occur, if it ever occurred. More than five
weeks have elapsed, since the opinion of the
supreme court has declared. the r necessity of
proving the fact, if it exists. Whv is it not
proved ?
To the Executive government is entrusted
the important power of prosecuting those,
whose crimes may disturb the public repose or
endanger its safety. It would be easy in
much less time than has intervened since Col.
Burr has been alledged to have assembled his
troops, to procure affidavits establishing the
fact. If in November or December last, a
body of troops had been assembled on the Ohio,
it is impossible to suppose that affidavits estab
lishing the fact could not have been obtained
by the last of March. I ought not to believe,
and I do not believe that there has been anv
remissness on the part of those who prosecute,
on this importanfand interesting subject; and
consequently, when at this late period no evi
dence, that troops have been actually embodi
ed, is given, I must say that the suspicion,
which in rite first instance might have been
created, ought not to be continued, unless this
want of proof can be in some manner account
ed for.
It is stafed by the Attorney for the United
States that as affidavits can on’y be voluntary,
the difficult) of obtaining them accounts for
the absence of proof.
I cannot admit this position. On the evi
dence furnished by this very transaction of the
attachment felt bv our Western for their East
ern brethren, we justly felicitate ourselves.—’
How inconsistent with this fact is the idea that
no man could be found who would voluntarily
depose that a body of troops had actually as
assembled, whose object must be understood
to be hostile to tire Union ; and whose object
was detected and defeated bv the verv people
who c*uld give the requisite information.
I cannot d°ubt' that means to obtain infor
mation have b ten taken on the part of the pro
seeution; if it existed I carrot dcubt tht pric
| ricability of cbt'-ining it, and its r.on.produc
tion at this late hour dees not, in my opinion,
leave me at liberty to give to those suspicions
which grow out cf other circumstances, that
weight to which at an earlier day they might
have been entitled.
1 shall not therefore insert in the commit
ment the charge of High Treason. I repeat,
that this the less important, because it detracts
nothing from the right cf the attorney to pre
fer an indictment for High Treason should he
be furnished with the necessary .testimony.
foreign'news,
Received by 'he Shift Ai.k/.axdfr Ham
ilton, Callahan,//! 42 days from
Livtrftool , vhi Savannah.
LONDON, February 2J.
We have received by a Danish Mail,
very important intelligence from the
seat of war, and that given in such offi
cial form as to leave little doubt of Us
accuracy to a certain extent.
OFFICIAL REPORT.
Bated Elding-, January 29, 1807. M
“ The intended junction between
Marshal Bernadotte and Marshal Ney,
the former of whom marched in the
night, between the 24th and 25th from
Elhing, has been interrupted on the re
treat of the latter nvaivMohringcn, in
consequence of the exjAitious and un
expected arrival of Rus
sian and Prussian In the ene
my’s retreat near Mohnngen, Leibstadt
and Saul feint, four thousand of them
were taken prisoners, ten pieces of can
non, arid two stand of colors, as well as
th»who!e baggage of Marshal Barna
dpttc. The brave Lieutenant-General
Von Anrepy, however, of the Russian
corps, bus been killed by a musket ball.
“ Marshal Barnadotte has been driv
en back, by the persevering advance of
our lorces, into the forests of Strasburg*
twenty leagues from Elbrng; and Mar
shal Ney to Przasnics, in New E. Prus
sia. The former is, completely sur
rounded ; hut the latter had joined
Prince Murat, and the combined army
will shortly give them battle. The
Russian army is commanded by the
General in Chief Yon Bcningsen, and
consists, pf ten divisions, or of upwards
of two jjuhdred thousand men, which
will be joined ijtfa fortnight by Hetss
manPlatoii, with twenty pieces of rid
ing artillery, and thirty thousand Cos
sacks. ■?
Position of the ten divisions of the AnnyZ
“ L General Von Essen, with forty
thousand men, stands near Itrnpbi und
Wislocki, in Macomiecki,,N»w East'*
Prussia.
“ 2. Major-General Se'dmoratzky,
with twenty thousand men, near Joh
annsburg, Cloys, and Nickolaiken, be
tween the Lakes.
“ The remaining seven divisions,
which are fronted by two van-guards
and a corps of cavalry, have their left
wing extended towards Neidenberg and
Passetiheim, with theiruight towards
Eglau.
“ General L’Estocq is posted from
Saalfeldt to Heisenberg and Marun
werder.
“ According to some reports, for the
veracity of which we cannot, however,
altogether vouch, a large corps of Cos
sacks and CalrrfUcks is shortly to come
Lom Pillati, through the district of
Dantzick, to act against the insurgents.
A letter from Yarmouth, dated Fe
bruary 25d, was exhibited yesterday at
Lloyd’s Coffee-House, and of which the
following is an extract:
“ Arrived yesterday P. M. ids majes
ty’s gun-brig Starling, and landed his
Excellency M.Alopms, who brings an
account that the French were defeated'
on the 25th ult. with the loss of 10,000
men killed and wounded—since defeat
ed in the beginning of February, in
which engagement Prince Murat was w
killed, Bernadotte was wounded, and
his whole equippage taken. General
j ictor is a prisoner at Dantzic.
; “ The Turks were said to have join
i ed the Russians, and the Austrians to
have declared in favor of Prussia.”
1 he Lord Keith cutter, which arriv
ed on Priday in the Downs, brings the
following rumor from Camperdown :
“ That the Emperor of Austria had
joined the Russians with 70,000 men ;
and that, with this accession of strength,
! the Russians had given battle to the
french,and totally tiefeattd them—-that
immediately after the action, Bonaparte
left the remains of his army, and was
proceeding in all haste to Paris.” It
was further stated, that the differences
, between Russia and the Porte had been
adjusted ; and that, in consequence, the
former had been enabled to march a
considerable force to join the grand ar
my in Poland,”
“ Yarmouth , Prb. 21.
“ Arrived this morning the Lord
Keith cutter from the continent, and
■ landed a Messenger, who is sa*d to be