The Wheeling repository — Wheeling, Va. [W. Va.], 1807-04-30 00:00:00, page 1

WHEELING REPOSITORY.
(Vol. I.) THURSDAY, joth April, 1807, (No. 9.)
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Opinion of Chief fustice Marshall.
'The United States,
vs
Aaron Burr.
[Concluded,]
The second charge exhibited against
the prisoner, is high treasofi against the
United States, in levying war against
* them.
As this is the most atrocious offence
which can be committed against the poli
tical body, so it is the charge which is
most capable of being employed as the in
strument of those malignant and vindic
tive passions which may rage In the bo
some of contending parties struggling
for power.— Itisthatoi which the people
of America have been most jealous ;
and, therefore, while other crimes are
vmnoticed, they have refused to trust the
N ational legislature with the definition
of this ; hut have themselves declared in
their constitution ihat “ it shall consist
•jnly in levying war against the United
States, or in adhering to their enemies i
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 constitution
al 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
lor believing that it hits been actually
coifimitted ; 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 Or
leans and revolutionizing the western
etates.
1 hat this plan, 11 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 otFence entirely distinct from the ac
tual commission of that crime. War
can only lie levied by the employment
ot actual force. Troops must be em
bodied, men must be assembled, in or
der to levy war. If col. Burr had been
apprehended on making those communi
cations to general Eaton, could it have
been alleged that he had gone farther
than to meditate the crime P Could it
have been said that he had actually levi
ed war P—Most certainly it could not.
The crime really completed was a con
spiracy to commit treason.—-not an ac
tual commission of treason.
If those communications were rot
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 'a1 ready notice 1, and of the
communications made by the bearer of
that letter.
'This letter has already been consider
ed by die supreme court of the United
States, and has been declared to import,
taken by itself, or in connection with
Eaton’s deposition, rather an expedition
against the territories of Spain than 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 eburt was unanimous.
It is, however, urged that the decla^
rations of Swartwout may be connected
with the letter, and used against col.
Burr.
zvitnougn tne comession 01 one man
cannot criminate another, yet I am in
clined to think that, on a mere enquiry
into probable cause, the declarations of
Swartwout, made on this particular oc
casion, may be used against col. Burr.
My reason for thinking so is, that col.
Bair’s letter authorises Mr. Swartwout
to speak in his name. He empowers
Mr. Swartwout to make to gen. Wil
kinson verbal communications explana
tory of the plans and designs fcf Burr,
Which Burr adopts as his oWr. explana
tions. MoXvever inadmissible, therefore,
this testimony nrav be oil a trial in chief,
I am inclined to admit it on this inquiry.
11 it be admitted, what is its amount?
tjpon this point too, it appears that
the supreme court was divided. I
therefore hold myself at liberty to pur
sue my own opinion, which was, that
the words u this territory must be re
volutionized,’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 farther inquiry in
to their meaning; and, if a territory of
the United States was to be revolution
ized, though only as a mean for an ex
pedition against a foreign power, the act
would be treason.
This reasoning leads to the conclusion
that there is probable cause for the al
legation that treasonable designs were