The enquirer (Richmond, Va.), 1807-09-09 00:00:00

The Enquirer.
PUBLISHED BY THOMAS RITCHIE, OPPOSITE THE POST-OFFICE.....AT FIVE DOLLARS PER ANNUM.....(PAYABLE IN ADVANCE.)
VOLUME 4.]
RICHMOND, WEDNESDAY MORNING, SEPTEMBER 9, 1807.
[NUMBER 35.
VIRGINIA BANK STOCK.....109.
Richmond Prices Current.
   D. C.     TOBACCO, : : : : : 4 1/2 00   WHEAT, NEW, : : : : 92 to 100   FLOUR—SUPERFINE, NEW, : : : 5 cah   FINE, : : : : : 4 50   CORN, PER BARREL, : : : : 4 00   BACON PER LB. : : : : 16   BAR IRON—PER TON, : : : 110 to 120   HEMP—PER TON, : : : : 200 to 210   WHISKEY—PER GALLON, : : : : 54  
BY virtue of a decree of the court of the U. S. for the fifth circuit and district of Virginia, between Josephine Morando Le Normand , executrix of Simon Emanuel Julian Le Normand deceased, and Nathaniel Colley , deft. will be sold, by public auction, to the highest bidder, at the Tavern of John R. Brewer in the town of Petersburg, on Wednesday the 30th of Sept. next, for ready money (subject to the possession of the said Colley, until Christmas next) that valuable tract of Land in Prince George county on James river , called Sion Hill ; containing by estimation five hundred and seventy acres. This land lies about twelve miles below the town of Petersburg, between the well known, productive Lands of George Ruffin , Esq. and of the late Richard Bland of Jordan . It commands a beautiful view of the port of City Point ; is naturally fertile in corn, wheat and other small grain; and being situate on the margin of the river, will afford to its owner the option of the markets of Petersburg, Richmond and Norfolk. Captain Colley will allow the purchaser to sow his crop of wheat immediately after the sale. Further particulars will be made known on the day of sale by
PETER EPPES, } Com'rs. WM. BAIRD, } S. PERKINS. }
September 5.
TOMKINS & MURRAY,
ARE now receiving from on board the ship Hart chel at City Point , a large and general assortment of Liverpool Goods , selected and offered, to accommodate country merchants. They are in daily expectation of receiving by the ship Culpe an assortment of useful Goods, which they are determined to sell by wholesale on very liberal terms. They will open in a few days in the house at present occupied by Bohn & Hubner , nearly opposite the Post-Office.
Sept. 5.
FRANCIS NEALE,
OFFERS his thanks to the public, for the flattering encouragement which he has experienced, and although the general scarcity has heretofore counteracted his efforts and disposition to afford the best accommodation, he begs leave to assure his friends, that hereafter, at all times, the most satisfactory entertainment will be provided for those who may favour him with their company.
King and Queen Court } house, Sept. 5. }
ep2w
JOHN ALCOCK,
INFORMS his friends and the public at large, that he has just received, and is now opening, next door to Shaffer, Proffer and Mounier's warehouse, a large assortment of
MERCHANDIZE,
CONSISTING OF THE FOLLOWING ARTICLES: CARPENTERS and joiners Tools, iron and steel Locks and Hinges, for house work and cabinet Ware. Tallo carry on my CABINET MANUFACTORY, as usual, adjoining the fire insurance office, and have on hand three thousand dollars worth of furniture, finished in the best workman-like manner and in the newest fashion. Also, Windsor Chairs. I will sell all of the above goods, very low for cash, or good paper at a short date.
Sept. 5.
ep1.
The Enquirer.
RICHMOND, 9th SEPTEMBER.
TRIAL OF AARON BURR,
(CONTINUED BY ADJOURNMENT, AND HELD AT THE CAPITOL IN THE HALL OF THE HOUSE OF DELEGATES,) FOR HIGH TREASON AGAINST THE UNITED STATES.
OPINION
OF THE COURT, ON THE MOTION TO ARREST THE EVIDENCE. DELIVERED ON MONDAY, August 31. (Concluded.)
On that division of the subject which respects the merits of the case connected with the pleadings, two points are also made.
1st. That this indictment having charged the prisoner with levying war on Blennerhassett's island and containing no other overt act, cannot be supported by proof that war was levied at that place by other persons, in the absence of the prisoner, even admitting those persons to be connected with him in one common treasonable conspiracy.
2dly. That admitting such an indictment could be supported by such evidence, the previous conviction of some person who committed the act which is said to amount to levying war, is indispensable to the conviction of a person who advised or procured that act.
As to the first point, the indictment contains two counts, one of which charges that the prisoner with a number of persons unknown levied war on Blennerhassett's island, in the county of Wood , in the district of Virginia , and the other adds the circumstance of their proceeding from that island down the river for the purpose of seizing New-Orleans by force.
In point of fact, the prisoner was not on Blennerhassett's island nor in the county of Wood , nor in the district of Virginia .
In considering this point the court is led first to enquire whether an indictment for levying war must specify an overt act or would be sufficient if it merely charged the prisoner in general terms with having levied war, omitting the expression of place or circumstance.
The place in which a crime was committed is essential to an indictment, were it only to show the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence. That, at common law, an indictment would have been defective which
did not mention the place in which the crime was committed, can scarcely be doubted. For this, it is sufficient to refer to Hawkins B. 2, ch. 27, sect. 24, & ch. 27, sect. 91. This necessity is rendered the stronger by the constitutional provision that the offender "shall be tried in the state and district wherein the crime shall have been committed," and by the act of Congress which requires that twelve petty jurors at least shall be summoned from the county where the offence was committed.
A description of the particular manner in which the war was levied, seems also essential to enable the accused to make his defence. The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation, and the circumstances which will be adduced against him. The general doctrine on the subject of indictments is full to this point. Foster p. 149, speaking of the treason of compassing the king's death, says "From what has been said it follows that in every indictment for this species of treason, and indeed for levying war and adhering to the king's enemies an overt act must be alleged and proved. For the overt act is the charge to which the prisoner must apply his defence."
In page 220, Foster repeats this declaration. It is also laid down in Hawkins , B. 8, ch. 17, sect. 29. 1st Hale 121. 1st Ea 116, and by the other authorities cited, especially Vaughan's case. In corroboration of this opinion, it may be observed, that treason can only be established by the proof of overt acts, and that by the common law as well as by the statute of 7th of William 3, those overt acts only which are charged in the indictment can be given in evidence, unless perhaps as corroborative testimony after the overt acts are proved. That clause in the constitution too which says that in all criminal prosecutions the accused shall enjoy the right "to be informed of the nature and cause of the accusation" is considered as having a direct bearing on this point. It secures to him such information as will enable him to prepare for his defence.
It seems then to be perfectly clear that it would not be sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified by laying what is termed an overt act of levying war. The law relative to an appeal as cited from Stamford , is strongly corroborative of this opinion.
If it be necessary to specify the charge in the indictment, it would seem to follow irresistibly, that the charge must be proved as laid.
All the authorities which require an overt act, require also that this overt act should be proved. The decision in Vaughan's case is particularly in point. Might it be otherwise, the charge of an overt act would be a mischievous instead of an advantage to the accused. It would lead him from the true cause and nature of the accusation instead of informing him respecting it.
But it is contended on the part of the prosecution that, although the accused had been never with the party which assembled at Blennerhassett's island, and was, at the time, at a great distance, and in a different state, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact.
It is therefore necessary to enquire whether in this case the doctrine of constructive presence can apply.
It is conceived by the court to be possible that a person may be concerned in a treasonable conspiracy and yet be legally, as well as actually absent while some one act of the treason is perpetrated. If a rebellion should be so extensive as to spread through every state in the union, it will scarcely be contended that every individual concerned in it is legally present at every overt act committed in the course of that rebellion. It would be a very violent presumption indeed, too violent to be made without clear authority, to presume that even the chief of the rebel army was legally present at every such overt act. If the main rebel army with the chief at its head should be prosecuting war at one extremity of our territory, say in N.H. if this chief should be there captured and sent to the other extremity for the purpose of trial, if his indictment instead of alleging an overt act which was true in point of fact, should allege that he had assembled some small party which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia at a time when in reality he was fighting a battle in New Hampshire , if such evidence would support such an indictment, by the fiction that he was legally present though really absent, all would ask to what purpose are those provisions in the constitution which direct the place of trial, and ordain that the accused shall be informed of the nature and cause of the accusation?
But that a man may be legally absent who has counselled or procured a treasonable act, is proved by all those books which treat upon the subject, and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in treason all are principals. Yet the indictment I say upon general principles, would charge him according to the truth of the case. Lord Coke says "if many conspire to levy war and some of them do levy the same according to the conspiracy, this is high treason in all." Why? Because all were legally present when the war was levied? No. "For in treason, continues Lord Coke , all be principals, and war is levied." In this case the indictment, reasoning from analogy, would not charge that the absent conspirators were present but would state the truth of the case. If the conspirator had done nothing which amounted to levying of war, and if by our construction the doctrine that an accessory becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to say that this defect, if it be termed one, may be cured by an indictment stating the case untruly.
This doctrine of Lord Coke's doctrine has been adopted by all subsequent writers; and it is generally laid down in the English books that whatever will make a man an accessory in felony, will make him a principal in treason; but it is nowhere suggested that he is by construction to be considered as present when in point of fact he was absent.
All the cases to be found in the books go to the same point. Let them be applied to that under consideration.
The whole treason laid in this indictment is the levying of war in Blennerhassett's island, and the whole question to which the enquiry of the court is now directed is whether the prisoner was legally present at that fact.
I lay this is the whole question because the prisoner can only be convicted on the overt act laid in the indictment. With respect to this prosecution it is as if no other overt act existed. If other overt acts can be enquired into, it is for the sole purpose of proving the particular
fact charged; it is an evidence of the crime consisting of this particular fact, not as establishing the general crime by a distinct fact.
The counsel for the prosecution have charged those engaged in the defence with considering the overt act as the treason, whereas it ought to be considered solely as the evidence of the treason; but the counsel for the prosecution seem themselves not to have sufficiently adverted to this clear principle, that though the overt act may not be itself the treason, it is the sole evidence of that treason which can produce conviction. It is the sole point in issue between the parties. And the only division of that point, if the expression be allowed, which the court is now examining, is the constructive presence of the prisoner at the fact charged.
To return then to the application of the cases. Had the prisoner set out with the party from Blennerhassett's island, though not from Beaver , and had arrived in the island, he would have been present at the fact; had he not arrived in the island, but had taken a position near enough to co-operate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as respected the law. In this case the accused would have been of the particular party assembled on the island, and would have been associated with them in the particular act of levying war said to have been committed on the island.
But if he was not with the party at any time before they reached the island; if he did not join them there, or intend to join them there; if his personal co-operation in the general plan was to be afforded elsewhere, at a great distance, in a different state; if the overt acts of treason to be performed by him were to be distinct overt acts; then he was not of the particular party assembled at Blennerhassett's island, and was not constructively present, aiding and assisting in the particular act which was there committed.
The testimony on this point, so far as it has been delivered, is not unequivocal. There is not only no evidence that the accused was of the particular party which assembled on Blennerhassett's island, but the whole evidence shows he was not of that party.
In felony then, admitting the crime to have been completed on the island, and to have been advised, procured, or commanded by the accused, he would have been incontestably an accessory and not a principal.
But in treason it is said, the law is otherwise, because the theatre of action is more extensive.
The reasoning applies in England as strongly as in the United States. While in '15 and '45 the family of Stuart fought to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legally present at one place, when actually at another; or as aiding in one transaction, while actually employed in another.
With the perfect knowledge that the whole nation may be theatre of action, the English books unite in declaring, that he who counsels, procures or aids treason, is guilty accessorially and solely in virtue of the common law principle, that what will make a man an accessory in felony makes him a principal in treason. So far from considering a man as constructively present at every overt act of the general treason in which he may have been concerned, the whole doctrine of the books limits the proof against him to those particular overt acts of levying war with which he is charged.
What would be the effect of a different doctrine? Clearly that which has been stated. If a person levying war in Kentucky , may be said to be constructively present and assembled with a party carrying on war in Virginia , at a great distance from him; then he is present at every overt act performed any where; he may be tried in any state on the continent, where any overt act has been committed; he may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts.
This is, perhaps, too extravagant in its terms maintained. Certainly it cannot be supported by the doctrines of the English law.
The opinion of Judge Patterson in Mitchell's case has been cited on this point. 2 Dal. 348.
The indictment is not specially stated; but from the case as reported, it must have been either general for levying war in the county of Alleghany , and the overt act laid must have been the assembly of men and levying of war in that county; or it must have given a particular detail of the treasonable transactions in that county. The first supposition is the most probable; but let the indictment be in the one form or the other, and the result is the same. The facts of the case are, that a large body of men, of whom Mitchell was one, assembled at Braddock's field, in the county of Alleghany , for the purpose of committing acts of violence at Pittsburg . That there was also an assembly at a different time at Couches fort, at which the prisoner also attended. The general and avowed object of that meeting was to concert measures for resisting the execution of a public law. At Couches fort, the resolution was taken to attack the house of the inspector, and the body there assembled marched to that house and attacked it. It was proved by the competent number of witnesses, that he was at Couches fort armed, that he offered to reconnoitre the house to be attacked, that he marched with the insurgents towards the house, that he was with them after the action attending the body of one of his comrades who was killed; that one witness swore positively that he was present at the burning of the house, and a second witness said that "it ran in his head that he had been there." That a doubt should exist in such a case as this, is strong evidence of the necessity that the overt act should be unequivocally proved by two witnesses.
But what was the opinion of the judge in this case? Couches fort and Neville's house being in the same county, the assembly having been at Couches fort and the resolution to attack the house having been there taken, the body having for the avowed purposes moved in execution of that resolution towards the house to be attacked, he inclined to think that the act of marching was in itself levying war. If it was, then the overt act laid in the indictment was consummated by the assembly at Couches and the marching from thence, and Mitchell was proved to be guilty by more than two positive witnesses. But without deciding this to be the
law, he proceeded to consider the meeting at Couches , the immediate marching to Neville's house, and the attack and burning of the house, as one transaction. Mitchell was proved by more than two positive witnesses to have been in that transaction, to have taken an active part in it, and the judge declared it to be unnecessary that all should have been seen him at the same time and place.
But suppose not a single witness had proved Mitchell to have been at Couches , or on the march, or at Neville's . Suppose he had been at the time notoriously absent in a different state. Can it be believed by any person who observes the caution with which Judge Patterson required the constitutional proof of two witnesses to the same overt act, that he would have said Mitchell was constructively present, and might on that footing of a legal fiction, be found guilty of treason? Had he delivered such an opinion what would have been the language of this country respecting it? Had he given this opinion, it would have required all the coadjutors of his life to strike his name from that bloody list in which the name of Jeffries is enrolled.
But to estimate the opinion in Mitchell's case, let its circumstances be transferred to Burr's case. Suppose the body of men assembled in Blennerhassett's island had previously met at some other place in the same county, and that Burr had been proved to be with them by four witnesses. That the resolution to march to Blennerhassett's island for a treasonable purpose had been there taken; that he had been seen on the march with them; that one witness had seen him on the island, that another thought he had seen him there; that he had been seen with the party directly after leaving the island; that this indictment had charged the levying of war in Wood county generally; the cases would then have been precisely parallel, and the decisions would have been the same.
In conformity with principle and with authority then, the prisoner at the bar was neither legally nor actually present at Blennerhassett's island; and the court is strongly inclined to the opinion that without proving an actual or legal presence by two witnesses, the overt act laid in this indictment cannot be proved.
But this opinion is controverted on two grounds.
The first is, that the indictment does not charge the prisoner to have been present.
The second, that although he was absent, yet, if he caused the assembly, he may be indicted as being present, and convicted on evidence that he caused the treasonable act.
The first position is to be decided by the indictment itself. The court understands the allegation differently from the attorney for the U. States. The court understands it to be directly charged, that the prisoner did assemble with the multitude and did march with them. Nothing will more clearly test this construction than putting the case into a shape which it may possibly take. Suppose the law to be, that the indictment would be defective unless it alleged the presence of the person indicted at the time of treason. If upon a special verdict facts should be found which amounted to a levying of war by the accused, and his counsel should insist that he could not be condemned because the indictment was defective in not charging that he was himself one of the assemblage which constituted the treason, or because it alleged the procurement defectively, would the attorney admit this construction of his indictment to be correct? I am persuaded that he would not, and that he ought not to make such a concession. If, after a verdict, the indictment ought to be confirmed, to allege that the prisoner was one of the assemblage at Blennerhassett's island, it ought to be so confirmed. But this is unimportant, for if the indictment alleges that the prisoner procured the assembly, that procurement becomes part of the overt act and must be proved as will be shown hereafter.
The 2d position is founded on 1 Hale 244, 238 and 1. E. 127.
While I declare that this doctrine contradicts every idea I had ever entertained on the subject of indictments, since it admits that one may be laid and a very different case may be proved, I will acknowledge that it is countenanced by the authorities adduced in its support. To counsel or advise a treasonable assemblage, and to be one of that assemblage, are certainly distinct acts, and therefore ought not to be charged as the same act. The great objection to this mode of proceeding is, that the proof essentially varies from the charge in the character and essence of the offence, and in the testimony by which the accused is to defend himself. These dicta of Lord Hale are therefore, taken in the extent in which they are understood by the counsel for the U. S. seem to be repugnant to the declarations we find every where, that an overt act must be laid, and must be proved. No case is cited by Hale in support of them, and I am strongly inclined to the opinion that, had the public received his corrected, instead of his original manuscript, they would, if not expunged, have been restrained in their application to cases of a particular description. Laid down generally, and applied universally to all cases of treason, they are repugnant to the principles for which Hale contends, for which all the elementary writers contend, and from which courts have in no case, either directly reported or referred to in the books, ever departed. These principles are, that the indictment must give notice of the offence, that the accused is only bound to answer the particular charge which the indictment contains, and that the overt act laid is that particular charge. Under such circumstances, it is only doing justice to Hale to examine his dicta, & if they will admit of being understood in a limited sense, not repugnant to his own doctrines, nor to the general principles of law, to understand them in that sense.
"If many conspire to counterfeit, or counsel or abet it, and one of them doth the fact upon which counselling or counterfeiting is treason in all, and they may be all indicted for counterfeiting generally within this statute, for in such case, in treason, all are principals."
This is laid down as applicable singly to the treason of counterfeiting the coin, and is not applied by Hale to other treasons. Had he designed to apply the principle universally he would have stated it as a general proposition, he would have laid it down in treating on other branches of the statute, as well as in the chapter respecting the coin, he would have laid it down when treating on indictments generally. But he has done neither. Every sentiment bearing in any manner on this point, which is to be
found in his original manuscript, they would, if not expunged, have been restrained in their application to cases of a particular description. Laid down generally, and applied universally to all cases of treason, they are repugnant to the principles for which Hale contends, for which all the elementary writers contend, and from which courts have in no case, either directly reported or referred to in the books, ever departed. These principles are, that the indictment must give notice of the offence, that the accused is only bound to answer the particular charge which the indictment contains, and that the overt act laid is that particular charge. Under such circumstances, it is only doing justice to Hale to examine his dicta, & if they will admit of being understood in a limited sense, not repugnant to his own doctrines, nor to the general principles of law, to understand them in that sense.
"If many conspire to counterfeit, or counsel or abet it, and one of them doth the fact upon which counselling or counterfeiting is treason in all, and they may be all indicted for counterfeiting generally within this statute, for in such case, in treason, all are principals."
This is laid down as applicable singly to the treason of counterfeiting the coin, and is not applied by Hale to other treasons. Had he designed to apply the principle universally he would have stated it as a general proposition, he would have laid it down in treating on other branches of the statute, as well as in the chapter respecting the coin, he would have laid it down when treating on indictments generally. But he has done neither. Every sentiment bearing in any manner on this point, which is to be

found in Lord Hale, while on the doctrine of levying war, or on the general doctrine of indictments, militates against the opinion that he considered the proposition as more extensive than he has declared it to be. No court could be justified in extending the dictum of a judge beyond its terms, to cases in which he has expressly treated, to which he has not himself applied it, and on which he as well as others have delivered opinions which that dictum would overrule. This would be the less justifiable if there should be a clear legal distinction indicated by the very terms in which the judge has expressed himself between the particular case to which alone he has applied the dictum, and other cases to which the court is required to extend it.
There is this clear legal distinction. "They may, says Judge Hale, be indicted for counterfeiting generally." But if many conspire to levy war, and some actually levy it, they may not be indicted for levying war generally. The books concur in declaring that they cannot be so indicted. A special overt act of levying war must be laid. This distinction between counterfeiting the coins, and that class of treasons amongst which levying war is placed, is taken in the statute of Edward 3d. That statute requires an overt act of levying war to be laid in the indictment, and does not require an overt act of counterfeiting the coin to be laid. In a particular case where a general indictment is sufficient, it is stated that the crime may be charged generally according to the legal effect of the act, it does not follow, that in other cases where a general indictment would be insufficient, where an overt act must be laid, that this overt act need not be laid according to the real fact. Hale then is to be reconciled with himself, and with the general principles of law, only by permitting the limits which he has himself given to his own dictum, to remain where he has placed them.
In page 238, Hale is speaking generally of the receiver of a traitor, and is stating in what such receiver partakes of an accessory. 1st. "His indictment must be special of the receipt, and not generally that he did the thing, which may be otherwise in case of one that is procurer, counsellor or consenter."
The words "may be otherwise" do not clearly convey the idea that it is universally otherwise. In all cases of a receiver the indictment must be special on the receipt, and not general. The words "it may be otherwise in case of a procurer, &c." signify that it may be otherwise in all treasons, or that it may be otherwise in some treasons. If it may be otherwise in some treasons without contradicting the doctrines of Hale himself, as well as of other writers, but cannot be otherwise in all treasons without such contradiction, the fair construction is, that Hale used these words in their restricted sense; that he used them in reference to treasons, in which a general indictment would lie, not to treasons where a general indictment would not lie, but an overt act of the treason must be charged. The two passages of Hale thus construed, may perhaps be law, and may leave him consistent with himself. It appears to the court to be the fair way of construing them. These observations relative to the passages quoted from Hale, apply to that quoted from East, who obviously copies from Hale, and relies upon his authority.
Upon this point Keeling 26, and 1st Hale 626, have also been relied upon. It is stated in both, that if a man be indicted as a principal and acquitted, he cannot afterwards be indicted as accessory before the fact. Whence it is inferred, not without reason, that evidence of accessory guilt may be received on such an indictment. Yet no case is found in which the question has been made and decided. The objection has never been taken at a trial and overruled, nor do the books say it would be overruled. Were such a case produced its application would be questionable. Keeling says, an accessory before the fact is quodam modo , in some manner guilty of the fact. The law may not require that the manner should be stated, for in felony it does not require that an overt act should be laid. The indictment therefore may be general. But an overt act of levying war must be laid. These cases then prove in their utmost extent no more than the cases previously cited from Hale and East. This distinction between indictments which may state the fact generally, and those which must lay specially, bear some analogy to a general and a special action on the case. In a general action, the declaration may lay the assumpsit according to the legal effect of the transaction, but in a special action on the case, the declaration must state the material circumstances truly, and they must be proved as stated. This distinction also derives some aid from a passage in Hale, 626, immediately preceding that which has been cited at the bar. He says, "If A. be indicted as principal and B. as accessory before or after, and both be acquitted, yet B. may be indicted as principal, & the former acquittal as accessory is no bar."
The crimes then are not the same, and may not indifferently be tried under the same indictment. But why is it that an acquittal as principal may be pleaded in bar to an indictment as accessory, while an acquittal as accessory may not be pleaded in bar to an indictment as principal? If it be answered that the accessory crime may be given in evidence on an indictment as principal, but that the principal crime may not be given in evidence on an indictment as accessory, the question recurs, on what legal ground does this distinction stand? I can imagine only this. An accessory being quodam modo a principal, in indictments where the law does not require the manner to be stated, which need not be special, evidence of accessory guilt, if the punishment be the same, may possibly be received; but every indictment as an accessory must be special. The very allegation that he is an accessory must be a special allegation, and must show how he became an accessory. The charges of this special indictment therefore must be proved as laid, and no evidence which proves the crime in a form substantially different can be received. If this be the legal reason for the distinction it supports the exposition of these dicta which has been given. If it be not the legal reason, I can conceive no other.
But suppose the law to be as is contended by the counsel for the United States. Suppose an indictment charging an individual with personally assembling among others and thus levying war, may be satisfied with the proof that he caused the assembly. What effect will this law have upon this case?
The guilt of the accused, if there be any guilt, does not consist in the assembly, for he was not a member of it. The simple fact of assembly no more affects one absent man than another. His guilt then consists in procuring the assembly, and upon this fact depends his criminality. The proof relative to the character of an assembly must be the same whether a man be present or absent. In the general, to charge any individual with the guilt of an assembly, the fact of his presence must be proved. It constitutes an essential part of the overt act. If then the procurement be situated in the place of presence, does it not also constitute an essential part of the overt act? Must it not also be proved? Must it not be proved in
the same manner that presence must be proved? If in one case the presence of the individual makes the guilt of the assembly his guilt, and in the other case the procurement by the individual makes the guilt of the assembly his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses. Collateral points may, say the books, be proved according to the course of the common law, but this is a collateral point? Is the fact without which the accused does not participate in the guilt of the assembly, if it was guilty, a collateral point? This cannot be. The presence of the party, where presence is necessary, being a part of the overt act, must be positively proved by two witnesses. No presumptive evidence; no facts from which presence may be conjectured or inferred, will satisfy the constitution and the law. If procurement take the place of presence, and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured or inferred, can satisfy the constitution and the law. The mind is not to be led to the conclusion that the individual was present by a train of conjectures, or inferences, or of reasoning; the fact must be proved by two witnesses. Neither where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures, or inferences, or of reasoning; the fact itself must be proved by two witnesses, and must have been committed within the district. If it be said that the advising or procurement of treason is a secret transaction which can scarcely ever be proved in the manner required by this opinion; the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction without proof. Certainly it will not justify conviction without a direct and positive witness in a case where the constitution requires two. The more correct inference from this circumstance would seem to be, that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason is in the nature of conspiring or plotting treason, which is not treason in itself. If then the doctrines of Keeling, Hale, and East, are to be understood in the sense in which they are pressed by the counsel for the prosecution, and are applicable in the U. States; the fact that the accused procured the assembly on Blannerhasset's island must be proved, not circumstantially, but positively by two witnesses, to charge him with that assembly. But there are still other most important considerations which must be well weighed before this doctrine can be applied to the United States. The 8th amendment to the constitution has been pressed with great force, & it is impossible not to feel its application to this point. The accused cannot be truly said to be "informed of the nature and cause of the accusation," unless the indictment shall give him that notice which may reasonably suggest to him the point on which the accusation turns, so that he may know the course to be pursued in his defence. It is also well worthy of consideration, that this doctrine so far as it respects treason, is entirely supported by the operation of the common law which is said to convert the accessory before the fact into the principal, and to make the act of the principal his act. The accessory before the fact is not laid to have levied war. He is not laid to be guilty under the statute. But the common law attaches to him the guilt of that fact which he has advised or procured, and as contended, makes it his act. This is the operation of the common law, not the operation of the statute. It is an operation then which can only be performed where the common law exists to perform it. It is the creature of the common law, and the creature presupposes its creator. To decide then that this doctrine is applicable to the U. States, would seem to imply the decision that the U. States, as a nation, have a common law which creates and defines the punishment of crimes accessory in their nature. It would imply the further decision that these accessory crimes are not, in the case of treason, excluded by the definition of treason given in the constitution. I will not pretend that I have not individually an opinion on these points, but it is one which I should give only in a case absolutely requiring it, unless I could confer respecting it, with the judges of the supreme court. I have said that this doctrine cannot apply to the U. S. without implying those decisions respecting the common law which I have stated, because, should it be true as is contended, that the constitutional definition of treason comprehends him who advises or procures an assembly that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assembly. If the adviser or procurer was within the definition of levying war, and independent of the agency of the common law, does actually levy war, then the advisement or procurement is an overt act of levying war. If it be the overt act on which he is to be convicted, then it must be charged in the indictment, for he can only be convicted on proof of the overt acts which are charged. To render this distinction more intelligible, let it be recollected that although it should be conceded that fine the statute of William and Mary, he who advises or procures a treason may in England be charged as having committed that treason by virtue of the common law operation which is said, so far as respects the indictment, to unite the accessory to the principal offence and permit them to be charged as one, yet it can never be conceded that he who commits one overt act under the statute of Edward, can be charged and convicted on proof of another overt act. If then procurement be an overt act of treason under the constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling; whatever may be the doctrine of the common law in the case of an accessory offender. It may not be improper in this place again to advert to the opinion of the supreme court and to show that it contains nothing contrary to the doctrine now laid down. That opinion is that an individual may be guilty of treason "who has not appeared in arms against his country: that if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform any part however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." This opinion does not touch the case of a person who advises or procures an assembly, and does nothing further. The advising certainly, and perhaps the procuring, is more in the nature of a conspiracy to levy war, than of the actual levying of war. According to the opinion, it is not enough to be leagued in the conspiracy; and that war be levied, but it is also necessary to perform a part; that part is the act of levying war. This part, it is true, may be minute; it may not be the actual appearance in arms; and it may be remote from the scene of action, that is from the place where the army is assembled, but it must be a part, and that part must be performed by a person who is leagued in the conspiracy. This part how-
ever minute or remote constitutes the overt act on which alone the person who performs it can be convicted.
The opinion does not declare that the person who has performed this remote and minute part may be indicted for a part which was in truth performed by others, and convicted on their overt acts. It amounts to this and nothing more, that when war is actually levied, not only those who bear arms, but those also who are leagued in the conspiracy and who perform the various distinct parts which are necessary for the prosecution of war, do in the sense of the constitution levy war. It may possibly be the opinion of the supreme court that those who procure a treason and do nothing further are guilty under the constitution; I only say that opinion has not yet been given; till less has been indicated that he who advises, shall be indicted as having performed the fact.
It is then the opinion of the court that this indictment can be supported only by testimony which proves the accused to have been actually or constructively present when the assembly took place on Blannerhasset's island, or by the admission of the doctrine that he who procures an act may be indicted as having performed that act.
It is further the opinion of the court that there is no testimony whatever which tends to prove that the accused was actually or constructively present when that assembly did take place. Indeed the contrary is most apparent. With respect to admitting proof of procurement to establish a charge of actual presence, the court is of opinion that if this be admissible in England on an indictment for levying war, which is far from being conceded, it is admissible only by virtue of the operation of the common law upon the statute, and therefore is not admissible in this country unless by virtue of a similar operation; a point far from being established, but on which, for the present, no opinion is given. If, however, this point be established, till the procurement must be proved in the same manner and by the same kind of testimony which would be required to prove actual presence.
The second point in this division of the subject is the necessity of adding the record of the previous conviction of some one person who committed the fact alleged to be treasonable.
This point presupposes the treason of the accused, if any has been committed, to be accessory in its nature. It's being of this description according to the British authorities, depends on the presence or absence of the accused at the time the fact was committed. The doctrine on this subject is well understood, has been most copiously explained, and need not be repeated. That there is no evidence of his actual or legal presence is a point already discussed and decided. It is then apparent that, but for the exception to the general principle which is made in cases of treason, those who assembled at Blannerhasset's island, if that assembly was such as to constitute the crime, would be principals, and those who might really have caused that assembly, although in truth the chief traitors, would in law be accessories.
It is a settled principle in the law that the accessory cannot be guilty of a greater offence than his principal. The maxim is, accessorius sequitur naturam sui principalis ; the accessory follows the nature of his principal. Hence results the necessity of establishing the guilt of the principal before the accessory can be tried. For the degree of guilt which is incurred by counseling or commanding the commission of a crime, depends upon the actual commission of that crime. No man is an accessory to murder unless the fact has been committed.
The fact can only be established in a prosecution against the person by whom a crime has been perpetrated. The law supposes a man more capable of defending his own conduct than any other person, and will not tolerate that the guilt of A shall be established in a prosecution against B. Consequently, if the guilt of B depends on the guilt of A, A must be convicted before B can be tried. It would exhibit a monstrous deformity, indeed, in our system, if B might be executed for being accessory to a murder committed by A, and A should afterwards, upon a full trial, be acquitted of the fact. For this obvious reason, although the punishment of a principal and accessory was originally the same, and although in many instances it is still the same, the accessory could in no case be tried before the conviction of his principal, nor can he yet be tried previous to such conviction, unless he requires it, or unless a special provision to that effect be made by statute.
If then, this was a felony, the prisoner at the bar could not be tried until the crime was established by the conviction of the person by whom it was actually perpetrated.
Is the law otherwise in this case, because in treason all are principals?
Let this question be answered by reason and by authority.
Why is it that in felonies however atrocious, the trial of the accessory can never precede the conviction of the principal? Not because the one is denominated the principal and the other the accessory, for that would be ground on which a great law principle could never stand. Not because there was in fact a difference in the degree of moral guilt, for in the case of murder committed by a hardy villain for a bribe, the person plotting the murder and giving the bribe, is, perhaps, of the two the blacker criminal; and, were it otherwise, this would furnish no argument for precedence in trial.
What then is the reason?
It has been already given. The legal guilt of the accessory depends on the guilt of the principal; & the guilt of the principal can only be established in a prosecution against himself. Does not this reason apply in full force to a case of treason?
The legal guilt of the person who planned the assembly on Blannerhasset's island depends, not simply on the criminality of the previous conspiracy, but on the criminality of that assembly. If those who perpetrated the fact be not traitors, he who advised the fact cannot be a traitor. His guilt then, in contemplation of law, depends on theirs, and their guilt can only be established in a prosecution against themselves. Whether the adviser of this assembly be punishable with death as a principal or as an accessory, his liability to punishment depends on the degree of guilt attached to an act which has been perpetrated by others, and which, if it be a criminal act, renders them guilty also. His guilt therefore depends on theirs, and their guilt cannot be legally established in a prosecution against him.
The whole reason of the law then relative to the principal and accessory, so far as respects the order of trial, seems to apply in full force to a case of treason committed by one body of men in conspiracy with others who are absent.
If from reason we pass to authority, we find it laid down by Hale, Foster, and East, in the most explicit terms, that the conviction of some one who has committed the treason must precede the trial of him who has advised or procured it. This position is also maintained by Leach in his notes on Hawkins, and is not, so far as the court has discovered, any where contradicted.
These authorities have been read and commented on at such length that it cannot be necessary for the court to bring them again into view. It is the less necessary because it is not understood that the law is controverted by the counsel for the United States.
It is, however, contended, that the prisoner has waived his right to demand the conviction of some one person who was present at the fact, by pleading to his indictment.
Had this indictment even charged the prisoner according to the truth of the case, the court would feel some difficulty in deciding that he had by implication waived his right to demand a species of testimony essential to his conviction. The court is not prepared to say that the act which is to operate against his rights, did not require that it should be performed with a full knowledge of its operation. It would seem conformant to the usual course of proceeding in other respects in criminal cases, that the prisoner should be informed that he had a right to refuse to be tried until some person who committed the act should be convicted, and that he ought not to be considered as waiving the right to demand the record of conviction, unless with the full knowledge of that right he consented to be tried. The court, however, does not decide what the law would be in such a case. It is unnecessary to decide it because pleading to an indictment in which a man is charged as having committed an act, cannot be construed to waive a right which he would have possessed, had he been charged with having advised the act. No person indicted as a principal can be expected to say I am not a principal, I am an accessory; I did not commit, I only advised the act.
The authority of the English cases on this subject depends in a great measure on the adoption of the common law doctrine of accessory treasons. If that doctrine be excluded, this branch of it may not be directly applicable to treasons committed within the United States. If the crime of advising or procuring a levying of war be within the constitutional definition of treason, then he who advises or procures it must be indicted on the very fact, and the question whether the treasonable intent of the act may be decided in the first instance in the trial of him who procured it, or must be decided in the trial of one who committed it, will depend upon the reason, as it respects the law of evidence, which produced the British decisions with regard to the trial of principal and accessory, rather than on the positive authority or those decisions.
This question is not essential in the present case, because if the crime be within the constitutional definition, it is an overt act of levying war, and to produce a conviction ought to have been charged in the indictment.
The law of the case being thus far settled, what ought to be the decision of the court on the present motion? Ought the court to set and hear testimony which cannot affect the prisoner, or ought the court to arrest that testimony? On this question much has been said—much that may perhaps be ascribed to a misconception of the point really under consideration. The motion has been treated as a motion confessedly made to stop relevant testimony, and in the course of the argument, it has been repeatedly stated by those who oppose the motion, that irrelevant testimony may and ought to be stopped. That this statement is perfectly correct, is one of those fundamental principles in judicial proceedings which is acknowledged by all and is founded in the absolute necessity of the thing. No person will contend that in a civil or criminal case, either party is at liberty to introduce what testimony he pleases, legal or illegal, and to consume the whole term in details of facts unconnected with the particular case. Some tribunal then must decide on the admissibility of testimony. The parties cannot constitute this tribunal, for they do not agree. The jury cannot constitute it, for the question is whether they shall hear the testimony or not. Who then but the court can constitute it? It is of necessity the peculiar province of the court to judge of the admissibility of testimony. If the court admit improper, or reject proper testimony, it is an error of judgment, but it is an error committed in the direct exercise of their judicial functions.
The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of Congress, by two witnesses. It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessories should render it unnecessary; and there is not only no witness who has proved his actual or legal presence; but the fact of his absence is not controverted. The counsel for the prosecution offer to give in evidence subsequent transactions, at a different place, and in a different state, in order to prove what? The overt act laid in the indictment? That the prisoner was one of those who assembled at Blannerhasset's island? No; that is not alleged. It is well known that such testimony is not competent to establish such a fact. The constitution and law require that the fact should be established by two witnesses, not by the establishment of other facts from which the jury might reason to this fact. The testimony then is not relevant. If it can be introduced, it is only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses, in such manner that the question of fact ought to be left with the jury. The conclusion that in this state of things no testimony can be admissible, is so inevitable, that the counsel for the U. States could not resist it. I do not understand them to deny, that if the overt act be not proved by two witnesses so as to be submitted to the jury, that all other testimony must be irrelevant, because no other testimony can prove the act. Now an assembly on Blannerhasset's island is proved by the requisite number of witnesses, and the court might submit it to the jury, whether that assembly amounted to a levying of war, but the presence of the accused at that assembly being no where alleged except in the indictment, the overt act is not proved by a single witness, and of consequence all other testimony must be irrelevant.
The only difference between this motion as made, and the motion in the form which the counsel for the U. States would admit to be regular, is this. It is now general for the rejection of all testimony. It might be particular with respect to each witness as adduced. But can this be wished, or can it be deemed necessary? If enough is proved to show that the indictment cannot be supported, and that no testimony unless it be of that description which the attorney for the U. States declares himself not to possess, can be relevant, why should a question be taken on each witness?
The opinion of this court on the order of testimony has frequently been adverted to as deciding this question against the motion.
If a contradiction between the two opinions does exist, the court cannot perceive it. It was said that levying war is an act compounded of law and fact, of which the jury aided by the court must judge. To that declaration the court still adheres.
It was said that if the overt act was not proved by two witnesses, no testimony in its nature corroborative or confirmatory, was admissible or could be relevant.
From that declaration there is certainly no departure. It has been asked, in allusion to the present case, if a general commanding an army should detach troops for a distant service, would the men composing that detachment be traitors, and would the commander in chief escape punishment?
Let the opinion which has been given answer this question. Appearing at the head of an army would, according to this opinion, be an overt act of levying war; detaching a military corps from it for military purposes might also be an overt act of levying war. It is not pretended that he would not be punishable for these acts, it is only said that he may be tried and convicted on his own acts, in the state where those acts were committed, not on the acts of others in the state where those others acted.
Much has been said in the course of the argument on points, on which the court feels no inclination to comment particularly, but which may, perhaps not improperly, receive some notice.
That this court dares not usurp power is most true.
That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would draw it from the bottom. But if he has no choice in the case; if there is no alternative presented to him but a derision of duty on the one hand, and the contempt as well as the indignation of his country who can hesitate which to embrace.
That gentlemen, in a case the utmost interesting in the zeal with which they advocate particular opinions, & under the conviction in some measure produced by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that they would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.
The arguments on both sides have been intently and deliberately considered. Those which could not be noticed, since to notice every argument and authority would swell this opinion to a volume, have not been disregarded. The result of the whole is a conviction as complete as the mind of the court is capable of receiving on a complex subject, that the motion must prevail.
No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transaction on Blannerhasset's island can be admitted, because such testimony, being in its nature merely corroborative, and incompetent to prove the overt act in itself, is irrelevant, until there be proof of the overt act by two witnesses.
This opinion does not comprehend the proof by two witnesses that the meeting on Blannerhasset's island was procured by the prisoner. On that point the court, for the present, withholds its opinion for reasons which have been already assigned; and as it is understood from the statements made on the part of the prosecution that no such testimony exists. If there be such let it be offered and the court will decide upon it.
The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.
TRIAL OF AARON BURR ON THE INDICTMENT FOR A MISDEMEANOR.
OPINION Of the Court on the proper process to be employed for bringing Aaron Burr before the Court to answer the indictment for the Misdemeanor. Delivered by the Chief Justice on THURSDAY, September 3.
The question now before the court is, whether bail be demandable from a person actually in custody, against whom an indictment for a misdemeanor has been found by a grand jury. As conceding directly to a decision of this point, the question has been discussed, whether a summons or a capias would be the proper process to bring the accused in to answer the indictment, it is point of fact he was not before the court.
It seems to be the established practice of Virginia in such cases, to issue a summons in the first instance, and if by any act of Congress the laws of the several states are adopted as the rules by which the courts of the United States are to be governed in criminal prosecutions, the question is at an end; for I should admit the settled practice of the state courts as the foundation of the state law under which that practice has prevailed.
The 34th sec. of the judicial act, it is conceded, has made this adoption.
The words of that section are "That the laws of the several states, except, where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States in cases where they apply."
It might certainly be well doubted, whether this section, if it should be construed to extend to all the proceedings in a case where a reference can be made to the state laws for a rule of decision at the trial, can comprehend a case where, at the trial in chief, no such reference can be made. Now in criminal cases the laws of the United States constitute the sole rule of decision, and no man can be convicted or prosecuted in the federal courts on a state law. The laws of the several states, therefore, cannot be regarded as rules of decision in trials for offences against the United States. It would seem to me too, that the technical term "trials at common law," used in the section, is not correctly applicable to prosecutions for crimes. I have always conceived them to be, in this section, applied to civil suits as contra-distinguished from criminal prosecutions, as well as to suits at common law as contra-distinguished from those which come before the court sitting as a court of equity or admiralty.
The provision of this section would seem to be inapplicable to original process for another reason. The case is otherwise provided for by an act of Congress. The 14th section of the judicial act empowers the courts of the United States, "to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."
This section seems to me to give this court power to devise the process for bringing any person before it, who has committed an offence of which it has cognizance and not to refer it to the state law for that process. The limita-

tion on this power is, that the proceeds shall be agreeable to the principles and usages of law. By which I understand those general principles and those general usages which are to be found, not in the legislative acts of any particular state, but in that generally recognized and long established law, which forms the substratum of the laws of every state.
Upon general principles of law it would seem to me, that in all cases where the judgment is to affect the person, the person ought to be held subject to that judgment. Thus in civil actions, where the body may be taken in execution to satisfy the judgment, bail may be demanded. If the right of the plaintiff is supported by very strong probability, as in debt upon a specialty, bail is demandable without the intervention of a judge. If there be no such clear evidence of the debt, bail is often required upon the affidavit of the party. Now, reasoning by analogy from civil suits to criminal prosecutions, it would seem not unreasonable where there is such evidence as an indictment found by a grand jury, to use such process as will hold the person of the accused within the power of the court, or furnish security that the person will be brought forward to satisfy the judgment of the court.
Yet the course of the common law appears originally to have been otherwise. It appears from Hawkins, that the practice of the English courts was to issue a venire facias in the first instance, on an indictment for a misdemeanor. This practice, however, is stated by Blackstone to have been changed. He says, (vol. 4. p. 319) "And so in the case of misdemeanors, it is now the usual practice for any judge of the court of King's Bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant."
It is then the English construction of the common law, that although in the inferior courts the venire facias might be the usual course and although it had prevailed, yet that a judge of the King's bench might issue a capias in the first instance.
This subject has always appeared to me to be in a great measure governed by the section of the judicial act. That section provides that for any crime or offence against the United States, the offender may agreeably to the usual mode of process against offenders in that state where he is found, be arrested, and imprisoned or bailed as the case may be. This act contemplates an arrest, not a summons; and this arrest is to be, not for offences for which the state laws authorize an arrest, but "for any crime or offence against the United States." I do not understand the reference to the state law respecting the mode of process as overruling the preceding general words and limiting the power of arrest to cases in which according to the state laws a person might be arrested, but simply as prescribing the mode to be pursued. Wherever by the laws of the United States an offender is to be arrested, the process of arrest employed in the state shall be pursued, but an arrest is positively enjoined for any offence against the United States. This construction is confirmed by the succeeding words. The offender shall be imprisoned or bailed as the case may be. There exists no power to direct the offender or to bind him without bail to appear before the court, which would certainly have been allowed, had the act contemplated a proceeding in such a case which should leave the person at large without security. But he is absolutely to be imprisoned or bailed as the case may be.
In a subsequent part of the same section, it is enacted "that upon all arrests in criminal cases bail shall be admitted, except where the punishment may be death."
There is no provision for leaving the person at large without bail, and I have ever construed this section to impose it as a duty on the magistrate who proceeds against any offender against the U. S. to commit or bail him. I perceive in the law no other course to be pursued.
This section, it is true, does not respect the process upon an indictment. But the law would be inconsistent with itself if it required a magistrate to arrest for any offence against the United States; if it commanded him on every arrest to commit or to bail, and yet refused a capias and permitted the same offender to go at large, so soon as an indictment was found against him. This section therefore appears to me to be entitled to great influence in determining the court on the mode of exercising the power given by the 14th section in relation to process.
On the impeachment which has been mentioned, this point was particularly committed to Mr. Lee and the law upon it was fully demonstrated by him.
The only difficulty I ever felt on this question was produced by the former decisions of Judge Iredell. If the state practice on this subject had been adopted, I should have held myself bound by that adoption. But I do not consider the state practice as adopted. Mundell's case was a civil suit, and the decision was that the state rule respecting bail in civil actions must prevail. Sinclair's case was indeed a case similar to this, and in Sinclair's case a venire facias was issued. But I am informed by the Clerk that this was his act at the instance of the Attorney, not the act of the court. The point was not brought before the court.
In Callender's case , a capias , or what is the same thing, a bench warrant was issued. This was the act of the court; but, not having been an act on argument, or with a view of the whole law of the case, and of former decisions, I should not have considered it as overruling those decisions if such existed. But there has been no decision expressly adopting the state practice, and the decision in Callender's case appears to me to be correct.
I think the capias the more proper process. It is conformable to the practice of England at the time of our revolution, and is I think in conformity with the spirit of the 8th sec. of the judicial act. I shall therefore adopt it.
To issue the capias to take into custody a person actually in custody would be an idle ceremony. In such a case the order of the court very properly supplies the place of a capias . The only difference between proceeding by capias and by order which I can perceive would be produced by making the writ returnable to the next term.
A more particular account of the proceedings on
have that the whole letter had been shown without disguise to others, and had been used against him. Mr. Hay said, that he could assure the accused, that the letter had never been seen by any human being to his knowledge, except the person to whom it was addressed, the counsel for the United States, Chief Justice, and some of Col. Burr's counsel, to whom it was confidentially communicated with a view to ascertain whether an arrangement could not be made for its production with the exception of those parts, which in his judgement ought not to be disclosed.
Col. Burr said he would be more explicit. He would ask whether the letter or a copy had not been produced to the grand jury.
Mr. Hay said he did not know that either the original or a copy were ever laid before the grand jury. I believe that they were not. But I am not so well acquainted with what passed with the grand jury as some other gentlemen are.
Mr. Hay said there could be no doubt of the accuracy of the copy. Before he was certain that he had the original letter of the 12th Nov. he obtained a copy from Gen. Wilkinson, which he found, in comparison, was correct in the most minute particulars. He mentioned this circumstance merely to show the strong probability that the copy of the letter of the 21st of October might be relied upon as equally correct.
Mr. Linnun was sworn. On inspecting the copy of the letter of the 21st of October, he said it was in the hand writing of Capt. Walter Burling, aid-de-camp to Gen. Wilkinson, on the Sabine expedition; that he was intimately acquainted with that gentleman, had often seen him write, and knew his handwriting well.
Mr. Hay said that he was willing to state on affidavit, if required, that he had not the original. Mr. Rodney had informed him that he had sent all the letters. A large packet had been received, but he had not been able to find this particular one.
Mr. Bots moved for a subpoena duces tecum to be directed to Mr. Hay for the production of the original letter of the 12th Nov. 1806, which then lay before him. He denied the right of the government to withhold the paper.
Col. Burr said that fate secrets were such only as affected the public at large. But if a man thought proper to make a communication of individual characters, he had been guilty of a great offence and deserved no protection.
Mr. Hay declared, that he was willing to expose so much of the letter as related to Col. Burr himself. But he enquired whether it would be right to exhibit to public view those parts which would tend to produce controversy between others. Cases may occur in which the disaffection to the government may be such, and so extensive even among the officers of the government, that it may become the duty of private citizens to inform. The accused may have all that belongs to his defence; but he never would put it in his power, to make use of the letter for the purposes to which he was satisfied it would be applied. He could not see why Col. Burr should step forward as the friend of those who had been denounced, even if there were such. But, in truth, the passages of the letter which he was unwilling to expose, were merely opinions of the writer with respect to certain persons, which opinions may have changed; as it related to some of them he knew they had changed. There were two passages in the letter which he could not consent should be seen unless they were extorted by the court. He did not know that he would yield under any circumstances. He would, indeed, rather go to jail than expose them.
Mr. Wilkinson observed, that after the sentiments of defence which had been uttered by the gentlemen on the other side, it only remained to apply to the court for an exertion of its authority. Motives of delicacy, it was well settled, were not sufficient to suppress evidence which was deemed essential for the purposes of justice. He intimated the case of the Dutchels of Kingston, in which certain gentlemen were compelled to give testimony of a most delicate nature, and relative to subjects which they had solemnly promised to conceal. But those parts of the letter proposed to be suppressed, may be of the utmost importance to the accused. If Gen. Wilkinson shall have denounced persons deservedly high in the confidence of the government and people, it would materially lessen his credibility in relation to Col. Burr.
C. Jus. The writ of subpoena duces tecum is sometimes awarded upon motion, but it is more frequently a matter of course upon the mere suggestion of the party. An argument as to the propriety of calling for the paper for the production of which it was awarded, is reserved for the return.
The writ of Subpoena Duces Tecum was accordingly issued, to which Mr. Hay made the return interred in our roll; and on the next day annexed the supplemental return, which we have given in this day's paper.
On this return an animated debate ensued. Mr. Bots and Mr. Wilkinson spoke on the side of Col. Burr; Mr. McRae and Mr. Wirt on the side of the prosecution. Col. Burr also addressed a few observations to the court.
The counsel for Col. Burr contended that it belonged to the accused and his counsel exclusively to judge whether the whole letter would be necessary for the defence or not; that neither the counsel for the United States nor the judge himself could in secret, without argument, or a knowledge of the points on which they meant to place the defence of their client, say whether those parts which were deemed confidential, would, or would not have an important bearing on the cause; and that if certain characters had been calumniated, the authors of that calumny ought to be exposed; that if the denunciations of Gen. Wilkinson were just and merited, it was an act of justice to give to him the laurels which he deserved; that however necessary state secrecy might be in diplomatic affairs, yet in domestic matters it was detestable, because it might furnish pretences to men in power to work the destruction of any person obnoxious to them, without giving them an opportunity of justifying themselves. They believed these parts of the letter which related to the characters of individuals of the utmost importance to their client; and that the other parts were really unimportant.
The counsel for the United States referred to the form of the affidavit filed by Col. Burr, in which he states, that the letter may be of importance to him as a matter of evidence; that no particular ground was stated why the letter would be material, and it was impossible in such a case to detect the person making the affidavit, because there was no point to which it was directed; that if a person might capriciously use a vague affidavit of this kind to extort evidence, no man's private papers would be sacred; that the most confidential papers in his possession might be extracted from his desk, under a pretext that they might be essential for the purposes of justice; that even admitting the passages proposed to be withheld from public view, were really important as it respected the persons alluded to, yet they were of no importance to Col. Burr, nor could they form any part of his defence; that the President having confided to the attorney for the United States an exercise of his discretion as to those parts of the letter which were of a confidential nature, and which ought not to be disclosed; the attorney ought, as to this subject, to be regarded as the President; that whether the public good requires the withholding of any communications made to the President, it was for him alone to decide; that this was not a mere question of delicacy, but of sound policy which might affect the whole country; and that a decision of this question which goes to the length contended for, that the president may be compelled to disclose all communications made to him of treasonable machinations carrying on against the government, would tend to suppress information which the government had a right to expect, and on which its very existence might depend. The case of Marbury vs. Madison was referred to, in which the supreme court had decided that the President was not bound to disclose communications made to him in his official character.
In the course of the argument Col. Burr rose, he said, to correct an error which seemed to have prevailed the court on both sides. It had not been adverted to, as it surely ought, that the President of the United States, by being President was not divested of his character of an individual. As President there were certain official channels thro' which all communications were to be made to him; these were his ministers. Any letter addressed to the President, not thro' those channels, was not official. He would treat the position by another rule. The President is not the keeper of any official paper. He could not have the custody of papers of that description. They belong to the offices of the respective heads of departments. It would be a criminal act in him to withdraw them from those offices. Again, when the President retires from office, the succeeding President succeeds to all the official rights of his predecessor, & has a right to inspect all the public papers. What becomes of the private letters? General Wilkinson could have made no communications to the President as such, but thro' the secretary at war. Individuals may indeed communicate with the President in his individual character; and in this instance, he believed many individuals had. The case of Marbury v. Madison had no weight, because that was an application for an official document. One great secret however, had been developed to day, that a system of espionage had been adopted by the government, & that individuals had been invited to send forward their denunciations.
Mr. Wirt, in his reply, particularly animadverted on the latter part of Col. Burr's observations. He contrasted his former conduct with his declarations this day made, and enquired how long it had been that secrecy had ceased to be a predominant trait in his character.
The Chief Justice, though he decided in favor of the production of the whole letter (as stated in our last) yet did not admit the positions of Col. Burr to the extent contended for by him. He could readily perceive cases, he said, in which letters might be addressed to the President immediately, which might contain state secrets, and which might in every respect be regarded as public letters.
2. Thomas Underwood, jun.—Mr. Burr. I challenge you, Sir: I do it because I understand you have expressed opinions unfavorable to me. Mr. U. It is true, that I have, Sir.—Mr. U. was accordingly let slide.
3. Nicholas Hallam was excused on account of his indisposition.
4. James Bowdoin was accepted.
5. Obadiah Gathwright wished to be excused on account of the indisposition of his family.—Mr. Burr. Perhaps your family may be better by to-morrow.
6. John Murphy.—Mr. Burr. Have you not expressed unfavorable opinions about me?—Mr. M. I do not recollect any time or place, where I have done it; but it is more than probable that I have.—Mr. M. was accepted.
7. Byrd George wished to be excused on account of indisposition. He was desired to attend to-morrow, if he was better. If not, his non-attendance would not be noted.
8. William Nee had expressed very unfavorable opinions of Aaron Burr.—Set aside.
9. When Y. McRae was called, Mr. McRae, (counsel for the prosecution) observed, that if motives of delicacy had suggested a late application to the court, he tho't that full blunter motives of delicacy would apply to him on the present occasion. After a short conversation between Mr. John McRae and the accused, which we did not distinctly hear, Mr. McRae was excused.
10. Francis Walker.—Mr. Burr. I challenge Mr. Walker.—Mr. W. I intended to have flatly my objections to serving. I believe the plans attributed to Col. Burr were such as he had really formed; that he contemplated the separation of the Western from the Atlantic States; and that after seizing on New Orleans, he intended to attack Mexico.
11. Benjamin J. Harris had received & still retained an opinion that A. B. had been guilty of something Set aside.
12. Jacob Ege had formed and expressed strong prejudices against the accused.—Set aside.
13. Farlton Williams was not a freeholder.
14. Robert Adams had made declarations against the accused.
15. Nathaniel Wilkinson. Mr. Burr. Mr. Wilkinson will be good enough to declare whether he has not formed and expressed opinions against me? and very strong ones?—Mr. W. Yes: very strong ones indeed.—Set aside.
16. Abraham Cowley had formed and expressed opinions unfavorable to the accused. Set aside.
17. Col. Wm. Beatty was accepted.
18. William Asplin had expressed very unfavorable opinions of the accused. Set aside.
19. Joseph P. Owens was detained on the jury in the District Court (now sitting in the other wing of the Capitol) Mr. Burr observed, that Mr. O. might perhaps be at liberty to attend to-morrow.
20. Thomas Pulling was indisposed; but suspended till to-morrow.
21. Daniel Wifinger was suspended for a familiar reason.
22. James Whitehead had formed and expressed very unfavorable opinions of the accused. Set aside.
23. Yeaman Smith was accepted.
24. Richard Young was excused on account of his indisposition.
25. Carter Page was extremely indisposed; suspended till to-morrow.
26. Robert Randolph was indisposed and wished to be excused. Mr. Burr requested him to be suspended, until to-morrow. Mr. Randolph urged his extreme anxiety to be excused from serving. Mr. Hay. I do not wish to object to you, Sir; but there is one ground on which you may get off. Have you not formed and expressed some opinion on this subject? A. I have. Mr. Wilkinson. If Mr. Randolph will deliberately declare that he cannot give an impartial verdict on this case, we will him to be discharged. A. I must repeat that I have formed an opinion on this subject, without intending to say, on which side that opinion leans. Mr. Randolph was discharged.
The Chief Justice then instructed the Deputy Marshal to summon twelve additional jurymen by to-morrow. Mr. Burr. The Marshal can hand me the list of them, this evening.
The Court then adjourned till to-morrow 10 o'clock.
TUESDAY, Sept. 8.
No measure of importance was adopted this day. Mr. Hay informed the court, that his messenger had not returned from Monticello.
Mr. Israel Smith appeared in court and was bailed on the indictment of a charge of a misdemeanor; himself in the sum of 2000 dollars and his securities John B. Walton and John Alcock in 2000 dollars each.
The names of the jurors who had been summoned, were called over: Messrs. John Richards, Daniel Price, William McKim, Robert Mayo, Robert *****, Benjamin Steffon were set aside on account of their previous impressions. George W. Lixon was excused on account of his indisposition.
Carter Berkeley and Robert McKim were accepted.
A VIEW OF RUSSIA AND FRANCE.
The important and rapid events and changes which have lately happened in Europe, excite the attention of every observer. There is not a nation or a government from the Straits of Messina to the Gulf of Finland, from the extremes of Italy, to those of Russia, which has not undergone or will undergo a radical or partial change.
Russia, the other day seemed to threaten to overthrow and overwhelm both Europe and Asia. But now, Russia, vanquished and driven back, is herself in danger of subjugation. She seems to depend for her existence upon the clemency of a victor, whom she has provoked to battle not only by deeds of violence and injustice, but by language the most indecorous and offensive. Such is the fate of Alexander, the emperor of all the Russias—Sovereign of sovereigns and master of numerous nations of almost as many languages. He is now compelled to seek peace from his irritated victor. Nor has he ached in vain. The voice of humanity has been heard, and regarded. The banners of victory are immediately furled, and the peace, which is solicited, will be granted. He who knows how to conquer; he who has conquered those who vainly pretended that they were invincible; he who knows that his cause was just, and that justice would again dictate his future course, will not desire to add to his laurels, at the expence of humanity. Long agitated and war-worn Europe, will be restored to peace.
Russia, heretofore, with her vast acquisitions from Poland, Turkey and Persia, like a torrent which gathers strength from every accession, and increases in rapidity & velocity by its own weight, seemed ready to pour out her strength in terror and dismay, upon the rest of the world. Napoleon has become the avenger of Europe and Asia. He has eroded a mound. He has arrested the destructive torrent. He has paralyzed her strength. He has saved the world from vandalism. The Alarics and Attilas of modern times, are claimed to their own mountains, and the demi barbarians of Silesia and Uralia, of Novaya Zembla and Kamchatka, will be excluded from the plunder and devastation of civilized Europe.
In calling to mind the vast scenes which are before us, we are tempted to enquire, what will be the fate of Russia, and what will be the future division and balance of Europe.
To answer these enquiries with tolerable certainty, it would be necessary to foresee the issue of negotiations with as much certainty as the victorious career of Napoleon, has been foreseen and foretold; and to know the real sentiments and final designs of this matchless man.
Conjectures may be formed, such as are authorized by his conduct to Austria, and to other nations and regions which have yielded to his arms; upon his own prudence and common sense; upon the pride of character, to which he will aspire; to his own frequent and emphatic declarations; and to an examination of the map and physical strength of Europe.
Such are the data, from which it is reasonable to presume that the new order of things, about to be established in the north of Europe, will be dictated by a wise regard to permanent security, as well as general happiness and tranquility.
The reader would receive no benefit from theoretical proportions; or a critique when a congress is about to assemble from all the nations of Europe facilitated by a victorious chief, at whose command a million of swords are ready to leap from their scabbards.
Notwithstanding this vast advantage, & incalculable superiority, this power without former example, the whole of his wide and splendid empire allows us to augur, that Russia will owe not less to his clemency, and Europe to his justice, than France owes to his incomparable talents.
PACIFICATOR.
From the New York Commercial Advertiser.
(We copy the following article from the Newcast. Chronicle of July 11, as an evidence that in England the 75th bulletin from the French Grand Army has been substituted instead of the 79th, and that the latter has been suppressed. As this bulletin contains the particulars of the battle of Friedland, and will positively never appear in the English papers, we wait with some anxiety for the next hour's arrival from France, that we may be enabled to lay this interesting document before the readers of the Mercantile Advertiser.)
Postscript to the Newcastle Chronicle of July 11.
We have received the French papers to the 31st, & Dutch to the 6th, which completely dispel the speculations lately indulged in, as to the operations on the continent. The Russians appear to be totally discomfited in the battle of Friedland. The 79th bulletin, dated Warsaw, the 17th of June, contains a detail of the events of that disastrous day, in which, on the anniversary of the battle of Marengo, Bonaparte with an extraordinary accumulation of good fortune, has gained a victory not less important. The loss of the Russians from the 5th up to the 14th, is estimated at 60,000 killed, wounded and prisoners. Bonaparte pursued his victory with unusual rapidity, and on the 19th, his head quarters were at Tilsit, on the Niemen. Marshal Soult entered Konigsberg on the 16th, and got an immense booty, and 100,000 stand of arms, some of which, it is said, were not unloaded from the ships. But the most important result, is, that the emperor of Russia, in consequence of the irrevocable defeat his army sustained on the 14th, proposed an armistice, which was agreed to—It is not to be broken without a month's notice. In the mean time the French army secures a position, of which the Niemen is the principal boundary and barrier. This armistice is for the express purpose of giving time for the negotiation of peace, which it is very probable will speedily be concluded. The king of Prussia was not included in this armistice, except that he had five days to conclude one for himself.
These events were announced at Berlin on the 28th, by Gen. Clarke. An armistice was concluded on the 22d instant, between Russia and France. One of the articles mentions, that hostilities shall not commence till a month after notice shall have been given. The French and Russians are to conclude a separate armistice within the interval of the five following days. His majesty the emperor of the French and the emperor of the Russians, are immediately to nominate Plenipotentiaries, to negotiate the great work of Peace. An exchange of prisoners will take place immediately. The limits of the French and Russian armies, during the Armistice, shall be from the Curish Haff, the Pregel of the Niemen, and from the left bank of that river up to the mouth of the Arama at Stakim, and pursuing the course of that river to the mouth of the Racha in the Narew, and from thence ascending to the left bank of the Narew by Tylowycz, Seradz, Narew, to the frontiers of Prussia and Russia. The limits in the French Narew are to be the Nywieg.
After the people had brought themselves to believe that the French were beaten in the battle of the 14th, this intelligence produced a most gloomy sensation. It is now clear that the continent is at the feet of Bonaparte, and in all probability we shall be left to prosecute the contest alone. Every man's feelings are now sufficiently touched by this melancholy prospect.
Thus is Prussia annihilated and Russia shut up within her own frontier. Sweden must no longer attempt to swagger, or Denmark to temporize. Perhaps at this very moment their final answers have been exacted, and our expeditions expected to the mere chance of being enabled to return in safety! The political atmosphere is gloomy beyond all former example!
WASHINGTON, Sept. 2.
Yesterday a few minutes past noon, intelligence was received at the Navy-Yard, in this city, of the death of the gallant Commodore EDWARD PREBLE, of the U. States Navy. Immediately, in commemoration of the loss sustained by the death of this valuable officer, flags of the Frigates in ordinary, and at the Marine Garrison, were struck half mast; at half past noon one gun was fired at the Navy Yard, which was repeated every half hour, till half past 5 o'clock, when the firing was repeated every five minutes, till 17 minutes before sunset, at which time commenced a discharge of 17 minute guns; when, with the departing sun, the colors were struck, amidst the sincere regrets of his brother officers.
In the death of the brave and intelligent PREBLE, his country has sustained a great, we hope particularly in the present crisis of our affairs, not an irreparable loss.
DAVID ROBERTSON, Esq. of Petersburg, the celebrated Stenographer of the "Debates of the Virginia Convention," is preparing to publish his Reports of the Proceedings on the TRIALS of AARON BURR. SUBSCRIPTIONS received at the Office of the EXQUISITOR.
AT CITY POINT FOR ROTTERDAM,
The good fast sailing copper bottomed Ship, RUSSELL, Capt. TABER, is in complete order for the reception of a cargo, and having a large proportion of the same engaged, will be dispatched in all the present month—for terms of freight apply to Richard Blow, Esq. Portsmouth, R. & A. Pollock & Co Richmond, or BUCHANAN & POLLOCK, Peterborough, Sept. 9. eptf.
FALL GOODS.
The subscribers are receiving by the Ship Herschell from Liverpool, an extensive supply of MERCHANTS' ZARE, SUITABLE to the approaching season—are in daily expectation of their London GOODS, by the ship Calph, which will make their assortment complete, and which they offer for sale by the piece or package, on the most moderate terms. JOHN & ROBERT GAMBLE, jun. Sept. 9. osnw6w.
Stolen out of my pocket-book, on the night of the 17th of August, at Lancaster Court-house,
A NOTE for 100 dollars, on the Bank of the United States, No. 176, payable to H. Jackson, and dated 2nd day of October, 1802. I will give 20 dollars to any person who will pay the Note if offered for circulation, and give me information thereof. JOHN THOMPSON, of St. Mary's county, Maryland, at present in Northumberland county, Virg. Sept. 9.
The first Volume of the Trial of COL. AARON BURR, IS ARRIVED AND FOR SALE BY MESSRS. FITZHYLSONN AND POTTER'S MR. PRICHARD'S AND AT MR. JOHNSON'S BOOK STORES.
THE SECOND VOLUME is expected will be immediately forwarded, and the succeeding ones with all possible expedition. The price of each VOLUME is 75 Cents. Sept. 9. 36.

THE FOUR SEAMEN.—On the third instant we published an article from the National Intelligencer, the object of which was to show that the four seamen claimed by Capt. Humphreys from the British ship ... were Americans.
In a note to the article above referred to, com. Barron is said to have reported (doubtless taking the facts from the parties) that William Ware, Daniel Martin and John Little, alias Francis, were sailors on board the brig Neptune, capt. Crafts, of this place, and that they were pressed out of her by the British frigate Melampus in the bay of Biscay.
On application to Capt. Crafts by the Secretary of the Treasury, he has made a particular statement respecting these men, which we have seen and now feel it to be our duty to avail ourselves of the information it contains, so far as to let the public know what sort of people these four men are, and what credit is due to them.
Capt. Crafts states, that he failed in the brig Neptune from New-York for Bordeaux in August, 1805. On the 17th of November following, he was taken in the bay of Biscay by the Melampus, then commanded by capt. Poyntz, and sent into Plymouth, England. All the crew except himself and boy and all the passengers were taken out and an officer and 9 men put on board to navigate the vessel.
Every thing appears otherwise to progress here in the usual way. There has been lately more demand for British manufactures; and the rocks on hand are not so heavy.
* This must refer to the renewal of an existing order.
The crimping of English seamen both from the merchant service as well as from the men of war of Great Britain had arisen to that height, that so far from being able to avail themselves of that friendly intercourse, which in a neutral country the English had a right to expect, not a boat could be cruised on shore from the ships in Hampton Roads, and all communication was carried on by two pilot boats, hired for the purpose, and manned by petty officers of his Majesty's Navy.
Extract of a letter from a gentleman in London to the editor of the Register, dated July 4th.
The particulars of hard fighting between the French and Russians, the middle of last month, are by some supposed to be suppressed, in order to prevent too serious an effect on the funds, &c. &c.
From what information I can collect, our ministers apprehend no difficulty with the new administration, relative to our treaty with England.
It is generally believed, that although captain Whibby was acquitted, that it was not done in that honorable manner he could have wished; the proceedings, however, have not been promulgated.
WASHINGTON, August 26. Extract of a letter from Nachitoches, dated July 2d, 1807.
Captain Pike, who has been some time detained in the interior provinces of Spanish America, arrived at this place in the evening of the 30th last month.
NORFOLK, August 28. The Troop of Cavalry, under the command of Capt. R. B. Taylor, were yesterday by general orders, discharged from service.
REMARKS, BY THE EDITOR OF THE AMERICAN. The foregoing article deserves the most serious attention. If it be correct it settles pretty satisfactorily the question respecting the citizenship of three of the seamen forcibly taken from on board the Chesapeake by Humphreys; for capt. Crafts declares "they had American protections," and decides in favor of their being Americans.
The United States' Gazette mentions the price of the Floridas to be four millions of dollars. We know not whether this is correct or not; if it is, we certainly have much cause to be satisfied; the purchase we have good reason to believe has actually been made.
NORFOLK, Sept. 2. The Chesapeake was prevented from leaving Craney-Island, on Monday by contrary winds; she went down to Hampton Roads this morning, with three of the gun-boats.
The Ville de Milan, commanded by Sir Robert Laurie, having arrived in our bay from Halifax, the command of the British naval force devolves on captain Laurie, as senior officer.
BENNINGTON, Aug. 24. Extract of a letter from a gentleman in Burlington, to his brother in this town.
Yesterday afternoon arrived here a sloop from St. John's, in which came passenger a gentleman of my acquaintance, who left Quebec but 5 days since.
This intelligence came in a letter from Judge Porter, who resides on the Niagara-River, to his brother Col. Porter in Canandaigua.
PETERSBURG REPUBLICAN LIGHT INFANTRY. A full meeting of this respectable corps was held at Tarum's Tavern, on Tuesday evening last, for the purpose of transacting business highly interesting to the company.
Extract of a letter from Geneva, dated 23d August, 1807. We have just received intelligence, that the Indians have been committing depredations in the neighborhood of Detroit, and massacred several of the inhabitants; and that the people in the vicinity were flying to the fort for protection.
THE SUBSCRIBERS HAVE JUST RECEIVED A SUPPLY OF COLOGNE MILL-STONES, OF DIFFERENT SIZES, WHICH will be disposed of for Cash or approved negotiable Notes at 60 days.
the same time tendering him the best wishes of the company for his health and happiness in the station to which his country had called him, and bidding him a warm and an affectionate adieu.
Both speeches were received with reiterated shouts of applause. The company then proceeded to fill the vacancies occasioned by the resignation of Capt. Robertson, and the following persons were duly elected:
South-America. PHILADELPHIA, Aug. 31.
INTERESTING FROM ST. JAGO. Mr. Fisk, supercargo of the sloop Laurel, arrived at Baltimore from St. Jago, says, that he was informed by the French consul at St. Jago, with the intention that he should publish it on his arrival here, that orders had been issued to the French privateers out of St. Jago, not to capture any American vessels bound to Jamaica, or any of the English ports.
OF SOUTH AMERICA. Captain Darling, arrived at New-York, in 17 days from Trinidad, informs that a vessel had arrived there from Grenada before he failed, bringing accounts that Buenos Ayres had been once more retaken by the English.
NEW-YORK, Sept. 1. Capt. Bourne, of the ship Whampoa, 68 days from Montevideo, informs us that Admiral Murry had arrived there 15 days previous to his failing, with 5 or 6 sail of the line, having on board about 5000 troops from the Cape of Good Hope, and that two days before his departure they proceeded to Buenos Ayres with 10,000 troops, under the command of Gen. Whitelock.
The following articles are copied from a file of Montevideo Papers to the 20th of June, with which capt. Bourne has favored the Editor of the Mercantile Advertiser:
MONTEVIDEO, June 13. Head-Quarters, Montevideo, June 10, 1807. Last night a dispatch was received by his Excellency Lieut. Gen. Whitelock, from Col. Park, commanding the troops at Colonia, with the important and gratifying intelligence, that he had obtained a complete victory over the Spanish army, consisting of upwards of two thousand men, under the command of Col. Elio, and strongly posted at St. Pedro.
The enemy had his front and flanks strongly secured by a deep and marshy river, and defended by six pieces of cannon. The difficulties of the position were, however, overcome by the bravery of the British troops, consisting only of nine hundred and fifty men; and they completely succeeded in routing the enemy, with the loss of one hundred and twenty killed, and a great many wounded, leaving in our possession, a standard, six pieces of ordnance, near three hundred thousand of arms, with a quantity of ammunition and ordnance stores, and one hundred and five prisoners.
The British, in this affair, had only two men killed, and twenty three wounded. But we are sorry to add, that Major Gardner and assistant Surgeon Turner were slightly wounded by the explosion of an ammunition cart, after the action was over.
JUNE 10. The fleet expected from England has not yet arrived.
WANTED, FOR THE ENSUING YEAR, AN OVERSEER.—None need apply but one who can come well recommended for honesty, sobriety, industry & a thorough knowledge of farming.
EDWIN JAMES HARVIE. August 7. tf.
FOR SALE, THE following PROPERTY, belonging to Robert Alexander, Esq. of Woodford county, in the state of Kentucky.—A LOT OF GROUND, in the City of Richmond, with a valuable House thereon, one room of which is occupied by the Jews as a Synagogue—under the house there are a set of Vaults, originally intended for a Wine Cellar; also the Tract of LAND whereon William Alexander, Esq. formerly resided, about three miles from the City of Richmond.
Richmond, Aug. 7th, 1807. Robert Alexander. eptf.
MARSHAL'S SALES. WILL be sold, to the highest bidder, for ready money, under a decree of the court of the United States for the fifth circuit, in the Virginia District, between Phoncas Bond, attorney in fact for the creditors of Ezekiel Edwards, plaintiff, and David Ross and others, defendants, in order to raise the sum of fifteen thousand six hundred and sixty six dollars and sixty six cents, due and payable the first day of last month, and the expenses and charges attending the sale; a number of very valuable SLAVES.—The sale will take place at the Oxford Iron Works, in the county of Campbell, on the 23d day of September next.
BEN. MORBY, D. M. FOR JOSEPH SCOTT, M. V. D. August 7th, 1807. 235
PROPOSALS, For carrying MAILS of the UNITED STATES, on the following routes, will be received at the General Post-Office, until the 15th of October next.
1st. FROM Peterburg by Harrisville, Goldsboro, Fayetteville, Drummondville, Warrenton, Lewiston, Raleigh, and Averiboro, to Fayetteville, three times a week.
Leave Peterburg every Monday, Wednesday and Friday at 8 a. m. arrive at Warrenton same days by 8 p. m. Leave Warrenton every Tuesday, Thursday and Saturday at 8 a. m. arrive at Raleigh same days by 6 p. m. Leave Raleigh, Wednesday, Friday and Monday at 8 a. m. arrive at Fayetteville same days by 5 p. m.
Returning—Leave Fayetteville every Tuesday, Thursday and Saturday at 4 a. m. arrive at Raleigh same days by 6 p. m. Leave Raleigh every Wednesday, Friday and Monday at 8 a. m. arrive at Warrenton same days by 6 p. m. Leave Warrenton every Thursday, Saturday and Tuesday 1 a. m. arrive at Peterburg same days by 8 p. m.
2nd. From Fayetteville by Lumberton, Barefields Mills, Potts Ferry, Gauley and Georgetown to Charleston three times a week.
Leave Fayetteville every Tuesday, Thursday and Saturday, at 4 a. m. arrive at Potts Ferry on Wednesday, Friday and Monday by 6 p. m. Leave Georgetown every Thursday, Saturday and Tuesday at 2 p. m. arrive at Charleston same days by 4 p. m.
Returning—Leave Charleston every Monday, Wednesday and Friday at 5 1/2 a. m. arrive at Georgetown same days by 6 p. m. Leave Georgetown every Tuesday, Thursday and Saturday at 2 a. m. arrive at Potts Ferry on Wednesday, Friday & Monday by 6 p. m.
NOTES. 1. The post master general may expedite the mails and alter the times of arrival and departure at any time during the continuance of the contracts, he stipulating an adequate compensation for any extra expense that may be occasioned thereby.
2. Fifteen minutes shall be allowed for opening and closing the mails at all offices where no particular time is specified.
3. For every thirty minutes delay (unavoidable accidents excepted) in arriving after the time prescribed in any contract, the contractor shall forfeit one dollar; and if the delay continues until the departure of any succeeding mail, whereby the mails destined for each succeeding mail, lose a trip, an additional forfeiture of five dollars shall be incurred.
4. Newspapers, as well as letters, to be sent in the mail; and if any person making proposals, desires to carry newspapers, other than those conveyed in the mail, for his own emolument, he must state in his proposals for what sum he will carry with the emolument, and for what sum without that emolument.
5. Should any person making proposals desire an alteration of the times of arrival and departure above specified, he must state in his proposals the alteration desired, and the difference they will make in the terms of the contract.
6. Persons making proposals are desired to state their price by the year. Those who contract will receive their pay quarterly, in the months of August, November, February and May, in one month after the expiration of each quarter.
7. No other than a free white person shall be employed to convey the mail.
8. Where the proposer intends to convey the mail in the body of a stage carriage, he is desired to state it in his proposals.
9. The post master general reserves to himself the right of declaring any contract at an end, whenever one failure happens which amounts to the loss of a trip.
10. The contracts for the above routes are to be in operation on the first day of January next, and to continue in force until the 31st day of March, 1810. GIDEON GRANGER, Post Master General. General Post-Office, Washington, (aug. 14.) ep6w
VIRGINIA, TO WIT: In a Chancery District Court, held in the City of Williamsburg, the 23rd day of April, 1807. Robert Edwards, and Priscilla his Wife, Pliffs. against James Ewell and Ann Robertson, executors of Andrew Robertson, Defs.
THIS day came the complainant by his counsel, and the defendant Thomas Reeves, not having entered his appearance, and given security according to the act of Assembly and the rules of this court, and it appearing to the court that he is not an inhabitant of this country, on the motion of the plfs. by their counsel; It is ordered, that the said defendant do appear here on the fourth day of October term next, and answer the bill of the plfs. and that a copy of this order be forthwith inserted in some newspaper of the City of Richmond, for two months successively, and poked at the front door of the former Capitol in this City.
A Copy. Teste, ANTY ROBINSON, c. c. July 17. In King William County Court, August 25th, 1807. Landon Carter, Compt. against Thomas Reeves and John Temple, In Chancery. D. ft.
THIS day came the complainant by his counsel, and the defendant Thomas Reeves, not having entered his appearance and given security according to the act of Assembly and rules of this court, and it appearing to the satisfaction of the court that he is not an inhabitant of this country, on motion of the complainant, It is ordered, that the said defendant, Thomas Reeves, do appear here on the fourth Monday in November next and answer the bill of the complainant; and that a copy of this order be forthwith inserted in some newspaper published in the city of Richmond for two months successively, and another copy be posted at the front door of the court-house of this county; And it is further ordered, that the defendant Temple, do not pay, convey away or secrete any debts by him owing to the defendant Reeves, until the further order or decree of this court.
A Copy. Teste, RO: POLLARD, Jr. n. c. c. Sept. 1. ep2w In King William County Court, August 25th, 1807. Lawrence Mule, Compt. against Thomas Reeves and John Temple, In Chancery. D. ft.
THIS day came the complainant by his counsel, and the defendant Thomas Reeves, not having entered his appearance and given security according to the act of Assembly and rules of this court, and it appearing to the satisfaction of the court that he is not an inhabitant of this country, on motion of the complainant, It is ordered, that the said defendant, Thomas Reeves, do appear here on the fourth Monday in November next and answer the bill of the complainant; and that a copy of this order be forthwith inserted in some newspaper published in the city of Richmond for two months successively, and another copy be posted at the front door of the court-house of this county; And it is further ordered, that the defendant Temple, do not pay, convey away or secrete any debts by him owing to the defendant Reeves, until the further order or decree of this court.
A Copy. Teste, RO: POLLARD, Jr. n. c. c. Sept. 1. ep2w In pursuance of a Decree of the High Court of Chancery, for the Richmond District, by consent of parties, the following property, belonging to the estate of James Anderson, dec'd. will be sold to the highest bidder, on a credit of twelve months, to wit: On Tuesday the 23rd day of September next, THAT commodious and well situated HOUSE & LOT, on the main street in the city of Williamsburg, at present occupied by Mrs. Camp. Also, two vacant half acre LOTS, near the Free School in the said city. The sale to be made on the premises.
On Monday the 14th day of Decr. following, That valuable HOUSE and LOT, situated at the foot of the capitol hill, in the city of Richmond, in the occupancy of Charles Basher and others. The sale to be made on the premises. Also, at the same time and place, two valuable Tracts of LAND, lying on Wills Creek, near the Free School, and within a few miles of the Ohio river.
There are eight thirty fifth parts of the above named property, which belongs to infants, and where the price of any one separate parcel exceeds fourteen hundred dollars, an interest with the purchaser must be retained in that portion for them. Additional information may be had on application to Robert Anderson of Williamsburg. THE COMMISSIONERS. Sept. 1. 23rd/29th Decr/1807 & eptf 4th.
VALUABLE PROPERTY FOR SALE. In pursuance of a Decree of the High Court of Chancery, for the Richmond District, by consent of parties, the following property, belonging to the estate of James Anderson, dec'd. will be sold to the highest bidder, on a credit of twelve months, to wit: On Tuesday the 23rd day of September next, THAT commodious and well situated HOUSE & LOT, on the main street in the city of Williamsburg, at present occupied by Mrs. Camp. Also, two vacant half acre LOTS, near the Free School in the said city. The sale to be made on the premises.
A GENERAL ASSORTMENT OF BLANKS, FOR SALE AT THIS OFFICE.