Norfolk gazette and publick ledger — Norfolk [Va.], 1807-04-10 00:00:00, page 1

VOL. III.] FRIDAY EVENING, APRIL 10, 1807.
[NO. 115.
From the Atlantiek World.
SUPREME COURTOFTIIE UNITED STATES.
Tuesday, February 17.
Argument of Mr. Harper in the ease of DrK noil
man and Mr. Suartreuut before the Supreme Court
on Tuesday the ‘27 th February.
Mr. I lutri.a.—The principles involved in this
case, may it please your honours, lender it in the
highest degree interesting to every member of tlie.j
community ; and the circumstances which attend it j
are so extraordinary, that it is difficult to speak or
even think about it, without feeling emotions which,
perhaps it would not be proper here to express. 1
am ready to confess that 1 am as susceptible of such
emotions as any other person. Perhaps I might (
more properly consider it as a subject of boasting
and there are particular circumstances in mv situa
tion, which tend strongly to excite and to heighten, j
all the feelings that naturally arise out of such a
case.
With one ol the parties now betore the court, tor
whom I more particularly appear, I have long liken
connected by the ties of intimacy and friendship. I !
have long been in the habit of admiring the embel
lishments of his mind, and of loving the virtues i
of his heart; and although 1 cannot deny that he
appears to have been drawn into an enterprize for- J
bidden by our laws, and eontraiy to our duties as a .
neutral nation, I cannot for auiomcntadmit thesus- j
picion, that he has acted from any unworthy motive,
or has in the' slightest degree participated in any j
criminal design.
With the other person who now stands at your ;
bar 1 have no acquaintance ; but when I reflect on
his youth, when I recollect the ardeut enthusiasm
which he lias displayed ; when I observe the energy
of character and the force of intellect which are
depicted in his countenance, I cannot hut deeply
cominisserate his present situation and indulge a
hope that the time will come, when instead of
being considered as an object of tile justice, of
his country, he will ap|>ear among tiie most dis
tinguished of her servants, and the bravest of her
defenders.
I am ready also to confess, may it please your
honours, that 1 feel strongly for the person whose
projects, il {judged and illegal, but 1 trust not immo
ral or dishonourable, have produced the present un
fortunate conjuncture. I am not ashamed to de.clare
that 1 have long been his friend, and that iu his
character, though now overclouded, I have always
seen, or thought that I saw, those qualities that fil
ed him in an eminent degree, for defending the
rights, advancing the interests, and extending the
glory of his country. When I recollect the inti
macy which has subsisted betwen us, when I con
trast his former with his present situation, when I
reflect on what he has been and what lie is likely to
be, I cannot but feel the strongest emotions of sym
pathy and regret.
If, therefore, may it please your honors I should,
in the argument which 1 am about u> submit to
this honorable court, yield sometimes more than is
fitting, to the emotions which the case and my pe
culiar situation towards the parties concur in cxcit
^ing, I hope i may be excused ; that 1 shall he con
sidered as yielding to a weakness pardonable if not
praiseworthy, and that I shall not be viewed in the
lie-tit of a person, who wishes to enlist prejudice
and passion against the authority of the law, and
the wisdom of the courts.
The enquiry which lirst occurs, in the progress
of this argument, relates to the evidence whereon
this commitment was founded ; and before I proceed
to review this evidence, permit me, may it please
your honors, to congratulate the country, this court,
• and my clients, on the triumph which truth and
the sound principles of law have obtained in this
Case, by the abandonment un the part of the prose
cution of those novel and dangerous, 1 had almost
said detestable doctrines respecting evidence which
we are told were advanced on a former occasion.
tlin U.MHU cttLUllICy, t*.\ {Jlttl II
ed. lie said that if the allusions were to the use
made of the President’s message, in the circuit
court, he had already declared that no such attempt
on t^at subject as hud been imputed to him and his
colleague, the attorney-general had ever been made.
The sole purpose for which they had introduced the
President's message, was to show that the assem
blage of a military force by col. Burr, was a mat
' ter of notoriety. They had not attempted or wish
ed to use the message as direct evidence.]
Mr. Harper proceeded. I jecollect the learned
gentleman’s explanation, and I take up the matter
on that explanation. I say that to use an executive
message in a court of justice for any purpose of proof
whatsoever, so as to aid in the commitment of a
citizen under a criminal accusation; to introduce
it as evidence of any fact, of notoriety for instance,
which is a fact; is to give it the effect of testimo
ny, and is u direct and palpable breach of the con
stitution. 1 am warranted in calling such a doc
trine dangerous and novel. 1 should be warranted
in bestowing on it a much harsher epithet. 1 would
do so did 1 not believe, that if was introduced on
4he occasion alluded to, through inadvertency, in
he enervesccuce of the moment. And 1 lignin con
gratulate the country, this court and every member
of'this community, on the triumph which the prin
ciples of liberty -and the constitution have obtain-,
fd, in the abandonment of this doctrine. This tri
umph 1 hold to b« the ti.*t and one of the fairest
fruits which we have obtained, from the protecting
authority of this high tribunal, in cases of habeas
corpus. I now proceed to review the evidence
which is’rdied on in this court, acd here I beg
leave to remark,-ip the first place, that we must
lay the depositions of Mr. Donaldson, Kent. Wil
son and tusigu Meade, entirely out u£ the case—
Those gentlemen know nothing of their own know- |
| ledge. They merely repeat what they heard from
gen. Wilkinson, or what they saw him do. Were
it necessary to support the credibility of his testi
mony, by showing that he told the same story at
other times, and that he was seen conversing with
the person whose conversation he relates, /these de
positions might perhaps be received for that pur
pose. Cut it is not the credibility of gen. Wilkin
son, but the legal operations' of the facts stated by
him, that we are now to consider. The depositions
of these three gentlemen, therefore, have nothing
to do with the case, which rests on the facts dis
closed by gen. Wilkinson and gen. Eaton, the two
remaining witnesses.
yjf.n. Mions deposition conies ursi in order ot
events, and on it the main reliance is placed tor es
tablishing the treasonable intentions imputed to
col. Burr—but when we inspect this deposition,
we instantly perceive, that it relates, after a very
considerable lapse of time, a variety of conversa
tions, which took place at various periods, through
out a whole winter. Withont in any manner im
peaching or calling in question the veracity of this
witness, which I am very far from intending or
wishing to do, may we not suppose that when he
comes after so long an interval to weave the sub
stance of these numerous and often desultory con
versations into one connected story, he miscon
ceives the force of some expression, forgets others,
and omits as unimportant some which might have
a very strong operation in explaining the rest ?
That he blends together various phrases or words,
which were used in different conversations, or in
different parts of the same conversation ; and thus
presents to us meaning that never eptered into the
mind of the speaker? These are mistakes that per
petually occur, in the operation of the human
mind, on past events ; and this is the reason why
so little reliance is placed by courts and juries on
the recollection of conversations long passed, of
which no written memorandum was made at the
time. The most accurate and the best intentioned
witnesses arc, in such circumstances, so liable to
mistakes of this kind, that their testimony is al
ways received with very great caution.
The whole complexion '**. gen. Eaton's narra
tive, the extraordinary nature of the frets which i
he states, render it extremely probable that he hf*.
fallen into some mistakes of this kind. No\#»y
i misplacing detached phrases, by applying to &ie
subject observations which were made in reference
to another, he lms not only misconceived th^na
turc of col. Burr’s operations, but has convert^]
mere conjectural speculations about things
t might be done, in certain supposed and pod
cases into projects that were to be attempte
; Burr, for instance, talked at some times of
iug Mexico, for which an armed force would be ne
cessary. Soon afterwards, perhaps in the same
conversation, he
d about a separation of the
union ; a measuie which
western states
n» man in hi
uld suppose it possibfiMo
icr than by the consentlnid
effect in any of
the act of the p
mselves, and which colonel
Burr represent!
lose people as having
a natural
and inherent right to effect. Col. Burr
turally speak of a military force, with
that project which required a military
he would talk of co-operation by i
United States, to which they a
might be induced, Ly double rat
pay, the hope of plunder and the 1
ment. All this general Eaton, when he
ter a lapse of many months to reduce
of these conversations to writing,
found with the other notions of a sep
union. And thus, while he thinks
iog the truth, he may represent col.
ally planniug to detach the westeri
force of arms, and to corrupt
States, by the hope of plundi
I cution of this project, equal!
hie and wicked.
| A single illustration drawn
will show how slight a mistake,
may entirely vary the complexion <39
Col. Burr is made to say, that it'
over Preble, Decatur, and the
xoiwhl assassinate the president, turn
and heels out of doors, seize the trea$u^^99*
navy, and declare himself the protector of an ener
getick government. What, corrupt l’reble and
Decatur! Preble and Decatur, at the sound of
whose names dishonor and fear equally stand
aghast! Induce them to become assassins aod
plunderers, to point their swords against the go
vernment of their country! Induce that gallant
corps which contributes so largely towards keeping
alive the remnant of military spirit and feeling that
exists among us ; which has on every occasion so
oohly distinguished itself, and done so much honor
to the country ; induce that gallant corps to t:n
bruc its hands in the blood, not of the enemies, but
of the legislators of that country ! What ! in the
midst of the American people, so famous tor their
attachment to free government, heretofore so re
j Downed for the courage and constancy with which
they defended their rights ; in the midst of such a
people, subvert by the aid of two heroes and a few
hundred soldiers, the government, chosen, made
and cherished by that people,the pimciples of which
are so congenial to their character, their situation,
and their habits, and to the actual administration
of which a great majority of them are warmly at
tached ! Not only thus subvert the government of
their choice and their uflections, but proceed by the
aid mf the same two or three hundred soldiers,'
to impose upon this people another government,
the most abhorrent to their institutions, to their
feelings aod to tbeir manners !—**-To etfect I
| in a urns of profound peace, order and law, J
by means so utterly inadequate, such a revolution
as can never be effected, except in times of the
greatest disorder, in the dissolution of government,
and thecollUion of some powerful military forces, in
the hands ot victorious chiefs I .Surely a project
more fraught with tolly, not to say crime, never
entered into the head of the wildest maniack in
Bedlam.
\ et this project is by the affidavit now under
consideration, attributed to col. Burr, a man ad
mitted to possess superior understanding, and here
tofore remarked for his knowledge, his discernment
and address. AY hut can he more astonishing than
such a project contrived by such a man ?
But change tlve word would in this part of the af
fidavit, into the word could, and the whole wonder
ceases. Make this slight change of a word, into
another greatly resembling it m sound, and the
whole sense is completely a'fered. Instead of see
ing col. Burr seriously plotting a scheme, which
would disgrace the intellects of a hmatick; we find
him merely indulging himself in some very extra
vagant speculations about what might possibly be
done, under certain circumstances; or more pro
pably, merely illustiating Ids opinion about the
supposed imbecility of the government or the ad
ministration. fn order to convince gen. Eaton that
nothing was to he apprehended from the opposition
of the government to his favourite plan of emanci
pating Mexico, he says that with the assistance of
sosniall a force as the marine corps, and the counte
nance of two distinguished nqM,itfimxifaafiei’s, the
whole government might be Ten or
twelve months afterwards, gen. Undertook to
relate the conversation. By mistake he substitutes
the word would for the word could, which was used
by' the speaker, and thus he converts a mere specu
lative. statement employed for the purpose of illus
trating another position, into a design too ridicu
lous to have been seriously conceived any where but
in a mad house. !
I ask if it be not infinitely more probable, that
gen. Eaton should' commit such a mistake, than
that rol. Burr should seriously think of such a pro
ject ? And if we view this deposition with the pro
per allowance, for inaccuracy of conception and of
recollection; fur the confusion of ideas and words;
f^r disjoining, misplacing aud impioperly uniting
JaMra and expressions; what does it contain so
Bfpjwl%d by probability and consistency as to de
serve belief ? (In this expression I refer not to tbe
veracity of the witness, which I believe to he un
impe«|^ahle, but to the accuracy of his recollec
tion. end the exactness of his discriminations.)—
What plan on the part of col. Burr does this depo
ptioiT, thus considered, bring to view?
f I answer, a military expedition to Mexico, and
nothing else. There is nothing else that assumes
the shape of apian, of; a design, 'l'here is some
loose talk about other projects; some vague allu
sions toother operations, which in certain case*
might he possible or were likely to take place. But
the expedition to Mexico is the only idea winch had
assumed the appearance of’a plan. That plan was
indeed unlawful, hut it was not treasonable ; and if
it were proved that the prisoners had engaged in
scheme, still their oti'euce would not be trea
may it please your honours, if this ab
and atrocious idea of corrupting Preble and
rr, gaining over the marine corps, and by
[raid assassinating the president, expelling con
As, and usurping the government, had ever been
ly entertained; if so frun.Vk a project had
from the effervescence of a distempered inu
;ar that it was instantly ubnudon
|eet, however wicked or however
ison. It is not even a misdemea
ust be done in pursuance of the
it me ask what has been done in
is project? The idea of applying
In the west to this project; ofouiid
Fon the Muskingum and Ohio, and de
dississippi to'Natchez, Baton Rouge,
is, for the purpose of assassinating
Washington, and throwing con
’indows, lias been so happily con
lurned into ridicule by one of iny col
ind is so ridiculous Jia itself, that nothing
k he said on the subject. What act has
!een ddlfie or attempted here, towards the accom
plishment of this mighty scheme? What attempt to
gum tuc uimcis, ui t ujiuja me murine corps,
or to engage other persons in the schemer—None1
It is therefore manifest that if such a project ever
existed, to believe which requires almost as much
folly as to contrive it; it remained a mere project,
without any act or movement whatever towards its
execution, and was immediately abandoned. Nor
[ is there the slightest evidence, or pretence of evi
dence, that it ever was known to the persons now
before this court.
j But another project we are told, of a nature not
much less dangerous or treasonable, was hatched in
the head of this arch couspirator, and is disclosed
by the deposition of gen. Eaton—No less a project
liian to separate the western states and Louisiana
| from the Union, and ereet them into a kingdom, of
which New Ot leans was to be the capital, and
i Aaron Burr the monarch.
This project is not much less' insane tlian the
i former, but if it were a mere project, not carried into
any act,it is not treason, noreven a misdetneauor: for
it is by acts, not by schemes and designs, that of
I fences in this country are committed. And if it
' were attempted to be carried into effect, still that
attempt is not treason, unless made by force ol
1 arms. To constitute treason there must be a levy
ing of wv, and war cannot be levied without an
armed foree.
The existence of this project is liable to the same
;doubts and objections, which apply, to the other
parts of general Eaton’s deposition. In tbn vari
< us con.ersations between him and col. Burr, the
separation of the western states was undoubtedly '
mentioned;, perhaps as a thing possible merely, but
capable, ii it should happen, of producing a strong
effect on the main design ; perhaps' ^s a thing pro- '
bublo; perhaps even as a thing desirable, and like
ly to happen. An expedition against Mexico was
also talked of, as a thing to be attempted, and ne
cessarily requiring a military force, A military*5'
force was therefore spoken of, and some of the
means by which it might be raised were stated.—
Nothing is more natural or more probable, than
that general Eaton, in relating nt along subsequent
time, the substance of these vaiious conversations,
should commit the double mistake, of supposing
that the observations about a possible or probabln
separation of the western country, amounted to a
plan for effecting that separation ; and that the mi
litary lorce spoken of in connection with the expe
dition to Mexico, was intended as the means of se
parating the Union. These mistakes would easily
be produced, by confounding together expressions
used on different subjects, in different conversations, ' '
or in different parts of the same conversation; and *
such confusion of terms and ideas the most acurata
memory, unaided by written memorandums made
at tlie time, would be liable. We cannot therefo
believe that sucli a plan was formed, unless the (act
be supported by some other well authenticated facts,
oy by strong probability. i
jijubiut. uuu liau bc»nc piujeci m view, anw
dill some arts towards i(s accomplishment, is folly
proved. In the uncertainty in which this depo6i- .
tion leaves us, concerning the nature of this pro
ject, the best and surest method of solving th®
doubt, and of ascertaining the end which he bail
in view, is to consider what l»e did, what tnepna
he used, and to what end those means were adapt
ed. For this purpose we must have recourse to thw'
deposition of general Wilkinson, which leads me
to enquire in what light that piece of testimony
ought to be viewed.
The first observation to be made on this subject
is, that the letter attributed to col. Barr, which if
inclosed in and forms the basis of this' deposition,
was written in cypher. Ilow was gen. Wilkinson
enabled to decypher this letter, and to inform us of
its contents ? I know not. It is fur him to answer
this question, which forms no inconsiderable iterat
in the account, which I regret that he has to sett la.
with the publick, on this subject. But he ought to
have told us how he was enabled to understand this
letter, to tlie end that we might judge how fat hif
account of its contents is entitled to credit? This is
the more necessary, because he has not told us his
translation is a true one. l ie says that it is as good '
a translation as be could make. ' If he had not the
means of making a true translation, then this ac
count of the contents is a mere conjecture, and
enn not be received as evidence in a court of just
ice.
In the next place we have not the original of this
letter, but only a copy. It is a fixt rule that tin*
copy or’ no paper can be used as evidence, by him '
who has possession of the original, and fajls to
produce it. Here the man who makes this charge,
rests it on the copy of a letter, while he keeps the
original in his pocket, and does not deign to infirm
why it is not produced, nor even that his copy is
a true one. \\ hy did he not send forward the ori
ginal and the key, so that this court might hav$
been enabled to examine the letter and judge cor
rectly concerning its contents ? Why did he not at
Ipast, get col. Cushing, to whom he says that ho
confided this secret, to collate the original with thtt- •
translation, and testify to its truth ? I know, not
why lie has omitted these steps, so obvious and so
completely in his power—nor shall I enquire. But -■
this I know, that such an omission leaves a stain of
doubt and suspicion on this affidavit, which all thet
waters of the Potowmac cannot wash out, and
which deprives it of all the qualities of legal ami
competent testimony.
Surely, may it please your honors, it can never
be allowed, in an American court of justice, that 9 ’
man shall keep an original paper in his pocket, proq
duce a copy which he does not 0. cannot even de- i *
dare to be a true one, and rely on it as the ground
of a criminal accusation, as the means of deprive
ing a citizen of his liberty! surely it is not on such
testimony that liberty is to depend! If such prac
tices be allowed I think that I see a career opened,
which must certainly and speedily lead us to despo*
tisin. * . 1 ■
I11 the 3d place this letter is not proved to hava V
been written by eol. Barr. It is not signed by
him, nor is it in his hand writing. There is no ,
proof on oath that it was written by his direction,
or with his knowledge—gen. Wilkinson does not
and could not swear to this fact. The letter, there
fore, is no evidence against any body, for the pur
pose of commitment; for the constitution says that
commitments shall not be without probable cause, ‘
“ supported by oath or affirmation*
But if this objection were removed,
an
other remains—for it does not appear by ge
neral Wilkinson’s deposition, or in any other
manner, that the persons now before the court,
were apprised ^ftbe contents of the letter. On*
of them, iqde«£,pwartwout, delivered the letter in
person; but «dd nothing from which it can be in
ferred that he had knowledge of its contents; and
the other, Bollman, sent it by a stranger, and never
said a word to gen. Wilkinson about its contents.
The leUer, indeed, stated that’ they were apprised
■ r~i
of its coutents; but the letter not being proved, is
no evidence, even against the supposed writing, ft
m;
cannot prove, even against him, any fact which it
%
contains;' and if it were proved to have been writ
ten by him, still it could not be received as evidence
again?! nny otfcer person?, without first proving bf