which, though innocent, neither of them might wish to subject to the casualties of a transportation from the Atlantic to the Mississippi; but when we perceive that colonel Burr has written in cypher, and that general Wilkinson is able to decypher the letter, we must either presume, that the bearer of the letter was also the bearer of its key, or that the key was previously in possession of the person to whom the letter was addressed. In stating particularly the circumstances attending the delivery of this letter, general Wilkinson does not say that it was accompanied by the key, or that he felt any surprise at its being in cypher, For this reason, as well as because there is not much more security in sending a letter in cypher accompanied by its key, than there is in sending a letter not in cypher; I think it more reasonable to suppose that the key was previously in possession of Wilkinson. If this was the fact, the letter being written in a cypher previously settled between himself and colonel Burr, is, in this stage of the inquiry at least, a circumstance which sufficiently supports the assertion, that the letter was written by colonel Burr.

The enterprize described in this letter is obviously a military enterprize, and must have been intended either against the Únited States, or against the territories of some other power on the continent, with all of whom the United States were at peace.

The expressions of this letter must be admitted to furnish at least probable cause for believing, that the means for the expedition were provided. In every part of it, we find declarations indicating that he was providing the means for the expedition; and as these means might be provided in secret, I do not think that further testimony ought to be required 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 against the prisoner, for any other offence which he shall think himself possessed of testimony to support, it is in fact, 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 alleged on the part of the United States, in support of which probable cause is shown, and to insert none in support of which probable cause is not shown, I am bound to proceed in the inquiry.

The second charge exhibited againt the prisoner, is high treason against the United States in levying war against them.

As this is the most atrocious offence which can be committed against the political body, so is it the charge which is most capable of being employed as the instrument of those malignant

and vindictive passions which may rage in the bosoms of contending parties struggling for power. It is that, of which the people of America have been most jealous, and therefore, while other crimes are unnoticed, they have refused to trust the national legislature with the definition of this, but have themselves declared in their constitution that "it shall consist only in levying war against the United States, or in adhering to their enemies giving them aid and comfort." This high crime consists of overt acts which must be proved by two witnesses or by the confession of the party in open court.

Under the control of this constitutional regulation, I am to inquire whether the testimony laid before me furnishes probable cause in support of this charge. 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.

Upon this point too, the testimony of general Eaton is first to be considered. That part of his deposition which bears upon this charge is the plan disclosed by the prisoner for seizing upon New-Orleans, and revolutionizing the western states.

That this plan, if consummated by overt acts, would amount to treason, no man will controvert. But it is equally clear, that an intention to commit treason is an offence entirely distinct from the actual commission of that crime. War can only be levied by the employment of actual force. Troops must be embodied, men must be assembled in order to levy war. If colonel Burr had been apprehended on making these communications to general Eaton, could it have been alleged that he had gone further than to meditate the crime? Could it have been said that he had actually collected forces and had actually levied war? Most certainly it could not. The crime really completed was a conspiracy to commit treason, not an actual commission of treason.

If these communications were not treason at the instant 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 cannot supply those acts if they be not proved.

The next testimony is the deposition of general Wilkinson, which consists of the letter already noticed, and of the communications made by the bearer of that letter.

This letter has already been considered by the supreme court of the United States, and has been declared to import, taken by itself or in connexion with Eaton's deposition, rather an expedition against the territories of the United States. By

that decision I am bound, whether I 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 Swartwout may be connected with the letter and used against colonel Burr. Although the confession of one man cannot criminate another, yet I am inclined to think that, on a mere inquiry into probable cause, the declaration of Swartwout made on this particular occasion, may be used against colonel Burr. My reason for thinking so is, that colonel Burr's letter authorizes Mr. Swartwout to speak in his name. He empowers Mr. Swartwout to make to general Wilkinson verbal communications explanatory of the plans and designs of Burr, which Burr adopts as his own explanations. However inadmissible therefore, this testimony may be on a trial in chief, I am inclined to admit it on this inquiry.

If it be admitted, what is its amount? Upon this point too, it appears that the supreme court was divided. I therefore hold myself at liberty to pursue my own opinion, which was, 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 as to admit of further inquiry into their meaning. And 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 was written.

It remains to inquire whether there is also probable cause to believe, that these designs have been ripened into the crime itself by actually levying war against the United States.

It has been already observed, that to constitute this crime, troops must be embodied, men must be actually assembled; and these are facts which cannot remain invisible. Treason may be machinated in secret, but it can be perpetrated only in open day and in the eye of the world. Testimony of a fact which in its own nature is so notorious ought to be unequivocal. The testimony now offered has been laid before the supreme court of the United States, and has been determined in the cases of Bollman 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, I 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 show

more clearly the particular operation they have on my own judgment.

The fact to be established is, that in pursuance of these designs previously entertained, men have been actually assembled for the purpose of making war against the United States; and on the showing of probable cause that this fact has been committed, depends the issue of the present inquiry.

The first piece of testimony relied on to render this fact probable, is the declaration of Mr. Swartwout, that "colonel Burr was levying an armed body of 7,000 men from the state of New-York and the western states and territories, with a view to carry an expedition against the Mexican provinces." The term "levying" has been said, according to the explanation of the lexicons, to mean the embodying of troops, and therefore to prove what is required. Although I do not suppose that Mr. Swartwout had consulted a dictionary, I have looked into Johnson for the term, and find its first signification to be "to raise," its second "to bring together." In common parlance, it may signify the one or the other. But its sense is certainly decided by the fact. If when Mr. Swartwout left colonel Burr, which must be supposed to have been in July, he was actually embodying men from New-York to the western states, what could veil his troops from human sight? An invisible army is not the instrument 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 colonel Burr was raising, or in other words engaging or enlisting men through the country described, for the enterprize he meditated. The utmost point to which this testimony can be extended is, that it denotes a future embodying of men, which is more particularly mentioned 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 avow my opinion, that the strength of the presumption arising from this testimony ought to depend greatly on the time at which the application is made. If soon 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 thought them intitled to great consideration. I will not deny, that in the cases of Bollman and Swartwout, I was not perfectly satisfied that they did not warrant an inquiry into the fact. But I think every person must admit that the weight of these circumstances daily diminishes. Suspicion may deserve great attention, when the

means of ascertaining its real grounds are not yet possessed; but when those means are or may have been acquired, if facts to support suspicion be not shown, every person, I think, must admit, that the ministers of justice at least ought not officially to entertain it. This, 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 an act of public notoriety. It must exist in the view of the world, or it cannot exist at all. The assembling of forces to levy war is a visible 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 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 necessity of proving the fact, if it exists. Why is it not proved?

To the executive government is intrusted 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 colonel Burr has been alleged 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 establishing the fact could not have been obtained by the last of March. I ought not to believe that there has been any remissness on the part of those who prosecute, on this important and interesting subject; and consequently, when at this late period no evidence, that troops have been actually embodied, is given, I must say, that the suspicion, which in the first instance might have been created, ought not to be continued, unless this want of proof can be in some manner accounted for.

It is stated by the attorney for the United States, that, as affidavits can only be voluntary, the difficulty of obtaining them accounts for the absence of proof.

I cannot admit this position. On the evidence furnished by this very transaction of the attachment felt by our western for their eastern 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 assembled, whose object must be understood to be hostile to the union, and whose object was detested and defeated by the very people who could give the requisite information!