The Wheeling repository — Wheeling, Va. [W. Va.], 1807-04-30 00:00:00, page 2

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 itscif by actually levying war a
gainst the United States.
it lias been already observed that to
constitute this crime, troops must he
embodied, m n must be actu dly assem
bled ; and these are tacts which cannot
rem rm invisible. Tr ason mav be ma
chinated in secret : hut it can be per
1 ctr ted only in open day, and in the
eye ol the world.—Testimonv of a fact
which ia its own name is o notori ms
ought toll - unequivocal. The testimo
ny now offered h u been 1.1 before the
cupreine court of the United States, and
has been determin.d, in the cases of
lie. 11 man and Swartwout, not to furnish
probable cause ior the opinion that war
nad been actually levied. Whatever
might have been the inclination ol mv
iwn mind in that case, I should feel
much difficulty in departing from the
tctijiv!! uitu iniuit , uiutai 1.4X13 l 413*j
could be clearly distinguished from it.
i will, howev. r, briefly n view the ar
guments which have been urged, and
the facts now before me, in order to
show more clearly the particular opera
tion they have on my own judgment.
The fact to he established is that, in
pursuance of these designs previously
entertained, men have been actually as
sembled for the ] urpose ol making war
against the United States ; and on the
shewing of probable cause that this fact (
has been committed, tU pends the is: ,ie |
of the present inguirv.
I he first piece oi t< stimonv relied on,
to re icier this fact probable, is the d- cla
ration of ?Ir. Swartwout, that “ col.
Burr was “ levy in^ an arme 1 bodv of
rOOO men from the state ol New York
tml the western states and territories,
with a view to carry an expedition a
g last the Mexican provinces.” The
term u Ir-vi/hitfhas lu en said, arc -rd
r g to the explanation of the lexicons,
to me m the embodc ing of troops, and
icrt tore to prove what is rerjuired. Al
tmugh I do n * -.appose that Mr. Swart
•vout h d consulted a dictionary, 1 have
oktd into Johnson for the t< rm, and
'and signification to b< kk ir> raise,” its
second, “ to bring together.” In com
mon parlance-, it may signify tht one or
the of: < r. lint its S'-nst is c i tainlv de
cided by the fact. If, wh n Mr. Swart
vo it lo ft col. Burr, which must he sup
* vied \o l.avc been in J ly, lie was at
j uially embodying men from New York
■ to tiie western states, what could veil
his troops from human sight. An in
vesible 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 w is used,
to be, that Col. Burr was raising, or in
other words, engaging or enlisting m *n
through the coumrv 1 *>crib *d, lor the
enterprise he meditated. The utmost
point to which this testimony can be
extended,is that it d n >tcs a future em
bodying of m n, which is more parti
cularly nvntion-d in the letter itself,
and that it aliords probable cause to be
lieve that the troops did actually embo
dy at the period clesig lated for their as
sembling, which i.-» suilicient to induce
the justice to whom the application is
made, to commit for trial.
I shall readily avow my opinion that
tlu* strength oi the presumption arising
irom this testimony ought to depend
greatly on the time at which the appli
cation is made. If, soon after the p.ri
od at v. hicli the troops were to assem
ble, when fall time h ul not elapsed to
ascertain the (act, these circumsianc s
haul been urged as the gro ind fora com
mitment on the charge for treason, i ;
should have tho’t them entitled to gr* it :
considerati )n. I will not deny that intlu
cases ol Hollnvan and Swart wout, I was {
not perfectly satisfied that thev did not
warrant an inquire into the fact. Hut I
think evert person must admit that the
wi ighlol these circumstancesdailvdim
inshes. Suspicion may dt »cr\ e great at
tention when tlte means cf ascertainingits
real grounds are not yet possessed; but
when those means are, or inavhave been
acquired, il lacts to support suspicion be
not shown, every person, 1 think, must
admit that ministers of justice at least
ot: ght not oll'ii inl y to i nti rtain it. This I
think must he conceded by all; butwhe
th r it he conceded by others or not, it is
the di tate ol my own judgment, and in
th. performance of my duty 1 can know
r.o other guide.
The laid to be proved in this case,
is an act of publick notoriety. It must
exist in the vi w of the world, or it can
not exist at all. The assembling of for
ces to levy war is a visible transaction,
and numbers must witni ss it. It is
therefore capable of proof; and when
time to collect this proof has|heen given,
it ought to he adduced, or the su] posi
tion heroines ground too weak to stand
upon. Several mouths have elapsed since
this fact did oecur, if it ever occurred.
M >re than five weeks have elapsed since
tin opinion of the supreme court declar
ed the necessity of proving the fact, if it
exists. Why is it not proved ?
To the executive government is in
trusted the important power of prose
cuting those whose crimes may disturb
the publick repose or endanger its safe
fv. It would be easy, in much less time
t1'. n has intervened since Coi. Burr has
be. n alleged to have assembled his
troops, t > procure affidavits establishing
the fact, li in November or Decem
ber last, a body of troops had been as
sent tied on the Ohio, it is impossible to
suppose th it affidavits establishing the
fact, c<' lid not have been obtained by
the last ot Alarch. I ought not to be
lieve, and I do not believe, that there
has b en aov remissness on the part of
th •>sc 'vho prosecute, on this important
nu t interesting subject ; and conse
quently when at this late period, no e
vid nee is given, l must s iv that the
suspicion, which in the first instance
mi pit have been created, ought not to
oe c intimi 1, unit vs this want ol proof
can lie in some in inner accounted for.
It is -t iled by ill • attorn.:v for the
l oiled Suites,tba*. vi atli lavi.s can only
>j v jiumurv, the difficulty of obtaining
b in accon its for the absence of proof.
I uinot a ! nit tliis p >sition. On the
evidence funiibiing by this very trans
ac ion of th attachment felt by our wes
tern lor their eastern brethern, wejust
1\' felicitate ourselves. If ow inconsist
ent with this fact is the idea that no
man could be found who would volun
tarily depose th it a body of troops had
actually assembled whose object must
be understood to be hostile to the union,
and whose object was detected and de
feated by the very people who could
give the requisite information.
1 cannot doubt that means to obtain
information have been taken on the part
ol ill'* prosecution : if it existed, I can
not doubt the practicability of obtain
ing it, oc its nonproduction at this late
hour does not, in my opinion, leave me
at liberty to give to those suspicions
which grow out of other circumstances,
that weight, to which at an earlier day
th y might have been entitled.
1 shall not, therefore, insert in the
commitim nt,the chargeof high treason.
I repeat that this is the less important,
i>- cause it detracts nothing from the
I right of the attorney to prefer an in
' di< Uncut lor high treason, should he l>c
furnished w ith the necessary testimony