Lynchburg star (Lynchburg [Va.]), 1807-02-19 00:00:00

LYNCHBURG STAR.
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YEAR 2.
Thursday, February 19, 1807.
No. 17.
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Foreign
LONDON, Nov. 24,
The most of calamitous intelligence which is our unhappy fate to communicate this day is beyond any thing that has preceded it in these times so fruitful in disasters.
Courier.
SURRENDER OF HOHENZOLLERN—CAPTURE OF STETTIN & CUSTRIN.
The opinion we expressed on Saturday, that Hohenlohe had been forced to capitulate in all but true he had been forced to surrender with his whole corps. After the affair of Zadenhagen he was forced to avoid the road to Templin, where Murat had arrived before him. He then proceeded to Prenzlau, a town at the northern extremity of a lake, on a direct road to Stettin. The Prussians and the French advanced guard reached it nearly at the same time, on the 29th ult. As soon as Murat came up, he gave orders to charge the Prussians in the suburbs of the town while his cavalry attacked the Prussian flank and turned the town. The attack on the town was successful, and the Prussians were forced to capitulate. A capitulation was agreed upon, and Hohenlohe's corps, consisting of 16,000 infantry, 6 regiments of cavalry, and 74 pieces of cannon, surrendered. Prince Augustus, the brother of the gallant prince Louis, killed at Jena, and the Prince of Mecklenburgh Schwerin, were amongst the generals made prisoners. On the 29th another column of 8000 men was forced to capitulate to the French general Milhaud, at Passewalk. This Prussian column seems to have been part of Hohenlohe's army.
Advancing with his division, Murat's right wing summoned Stettin, which surrendered without making any resistance, though it is represented to have been in a good state of defence—160 pieces of cannon were found in the garrison and the number of prisoners taken was 6000. Whilst the right wing had made itself master of Stettin, the left extended itself towards Anklam and Demmin.
At Anklam another column of Prussians about 4000 strong, were forced to capitulate, and on the 31st Murat's headquarters were at Demmin, with the view of attacking a Prussian column under the command of the Prussian general Bils, who seems to be retiring into Swedish Pomerania. It appears from this as if we have hitherto been under a mistake in supposing that it was either the duke of Weimar's or Blucher's corps, that had retreated into Swedish Pomerania. Both those corps left Rensburg on the 29th ult. The 23d bulletin describes Blucher to have left Kienberg on the morning of the 29th, and the duke of Weimar to have remained there on that day. Bernadotte was on that day at Furstenberg, and it was supposed the duke would be unable to cut his way through him. Blucher with 7000 men, would, it was supposed, fall into the power of Laffes or Murat. Abandoning however all idea of making good their retreat to the Oder, Blucher and the duke are said to have made a retrograde movement, with a view of regaining the Elbe, but the French had calculated upon this movement, and had taken measures accordingly. Whilst these events were taking place upon the left bank of the Oder, Davoust had advanced to Cultrin, which seems to have surrendered with as little resistance as Stettin, though it is said to have been well provided for defence. The garrison consisted of 4000 men. The early capture of Cultrin will surprise all military men—it is
situated in the middle of a morass—no approaches can be made without the greatest difficulty; and it would have been in less danger from any attack of a besieging army than from famine. The French are thus in possession of all the course of the Oder from Cultrin to its mouth. They have also, it is said, advanced into Poland—whilst the Bavarian and Wirtemberg troops, under Jerome Bonaparte are proceeding to Silesia. Louis Bonaparte is advancing into Hanover, and Mortier into the electorate of Hesse.
Of the substance of the 23d, 24th, and 25th bulletins, contained in the French papers to the 18th; the Dutch to the 26th, communicate some further and later accounts, but they do not appear to be official. They state that Magdeburg had capitulated, which we can hardly believe. The last French bulletin states merely, that Ney is about to invest it. Murat, according to these Dutch papers, was expected at Lebeck on the 5th to attack general Blucher. General Blucher! It was said that he was retreating towards the Elbe. The Swedish corps which had occupied the Lunenburg territory had forced their way into Lubeck on the 2d to embark for Stralsund, which they had nearly completed on the 5th.
Where the king of Prussia is, is not ascertained. Lucchesini's mission to Bonaparte is said to have failed, and now the Dutch papers report, that the king of Prussia has solicited an interview with him. It is clear that Bonaparte is determined to treat his Prussian majesty with much more harshness than he did the emperor of Germany; it seems almost as if he had formed the resolution to dethrone him altogether, and partition the Prussian territories amongst his generals, or plant a branch of his own family upon the throne of the great Frederick.
As to the Russians, we have no accurate accounts of them—they are mentioned, indeed, in the French bulletins, but it is merely to indulge an insulting manner and prediction that destruction awaits them if they dare to meet the French. They do not seem to have joined the Russians.
In one of his bulletins he says—"That England would make no peace—but she shall make it, and France will include more coals and states in her federative system." In a proclamation to his troops he says—"We will be no longer the sport of a treacherous peace, and we will not lay down our arms until we have obliged the English, those eternal enemies of our nation, to renounce the scheme of disturbing the continent, and the tyranny of the seas."
We apprehend it to be Bonaparte's intention to cajole or compel Denmark into an alliance with him, for the purpose of attempting to block up the Baltic against us.
On the 23d November the French troops took possession of Hamburg; confiscated immediately every species of British property found therein; and put all the English merchants in arrest.
The elector of Hesse Cassel, duke of Brunswick, duke of Mecklenburg, and prince of Orange Fulda, had all been deposed—General Legrange was appointed governor of Cassel; and the king of Holland had taken Hanover. The French had not entered Swedish Pomerania; but had made 1500 Swedish prisoners, near Pomerania and had menaced Denmark. Every measure indicates Bonaparte's fixed determination to annihilate the Prussian dynasty. General Clark has been appointed governor of Prussia provisionally, and all the fortresses from Erfurth to Stettin were to be strengthened, for future safety. The king of Prussia had passed the Oder, with about 15,000 men; and was supposed to be making for Konigsberg, the old capital of this kingdom.
Considerable apprehensions are entertained by the court of Copenhagen respecting the designs of the French. It is true that Denmark has not since the commencement of the revolution, taken any share in the war against France, and the active part which she took in the northern confederacy against Great Britain in the year 1800, might naturally be supposed to exempt her from any danger of an attack from France. But all this will weigh but little with Bonaparte, when put in competition with his favorite object, viz. the ruining the found against our commerce ;—and we have no doubt that we shall very soon hear of a peremptory application from him to the Danish government upon that subject.—It was even confidently stated yesterday evening, that government had received positive confirmation of the demand having formally been notified at the court of Copenhagen.
Castle Nuoro, the strongest fortress in the mouths of the Cattaro, has been taken by storm by the French under general Marmont. He has published a proclamation, inviting the inhabitants of Cattaro to give up that place to him, and threatens to treat them severely if they were found fighting on the side of the Russians. It is extremely probable, therefore, that by this time the whole of Cattaro, is in the hands of the French.
By letters from Jena, Weimar, and Leipzig, the complete tranquillity is said to prevail; all disorder has ceased and
the citizens mount guard alternately with the French soldiers.
The lectures of the above universities have, as we have before stated recommenced; the students who have not been recalled, and assured by the emperor Napoleon, that he is determined to protect the sciences and learning in every quarter of his empire.
The designs of the French were known at Hamburg thirty-six hours before they entered that city. The greater part of the English property was thereupon embarked, and the vessels containing it were in perfect safety!
December 2.
In pursuance of Marshall Mortier's proclamation requiring all bankers and merchants, having British funds and manufactures in their possession, to give in correct statements, the commercial chamber of commerce at Hamburg, requested by public notice that those complying with the proclamation should also furnish them with copies, and at the same time send an estimate of the losses they shall be subject to, should the measures enjoined be varied into effect, in consequence of the reprisals by the British government. The great object intended by Bonaparte, that the plan of confiscation on him must be ultimately more favourable to Great Britain than to the interest of Hamburg. The underwriters were also desired to state, as far as they were able, the injury would sustain by the capture of Hamburg and other vessels, in order that a fair balance might be made out. A meeting of the underwriters was accordingly held at Borson Halle, but the result had not transpired.
A captain of a ship just arrived from Elsinore, reports that when he left it that accounts were received that an action had taken place between the Russians and French in his neighbourhood of Posen, in which the latter were defeated with great slaughter. The Russian army consisted of 140,000 men, and the French of but 60,000. A ship arrived at Elsinore in three days from Stettin, the captain of which saw 19 waggon loads of wounded Frenchmen.
December 2.
By the Alpha, captain Hudson, arrived at Harwich, we learn that the French took possession of Cuxhaven on the 23d. This intelligence is not to be doubted.—Napoleon will endeavour to shut every port in his power in the North Sea.—Denmark must look to herself—but she is not without assistance. Sir Samuel Hood is to sail immediately with a squadron into the Baltic; so that Bonaparte's project of shutting up the Sound will melt in the air.
The 30th bulletin of the French army states that 60,000 Russian troops had begun to enter the Prussian states by Gottenburg, Grodus, &c. &c. but that on hearing of the results of the battle of the 24th, they had fallen back. As it was but the advanced guard of the auxiliaries, they did not think it prudent perhaps to proceed till the main body arrived, which in all likelihood, was in full march at no great distance. If this should be the cause, it is a proof that Bonaparte will be disappointed in the plan which he evidently laid for attacking them by pincer-meal.
We understand that the Privy Council have come to a resolution to issue an order for preventing the transfer of foreign property in the funds. His majesty came to town this morning to give it effect by the royal signature.
[The American readers should not forget this.]
December 4.
In the second edition of the Statesman of yesterday, we announced that Mr. Schultz had arrived from the Elbe in the morning with the important intelligence that a battle had taken place at Posen, between Davoust's corps and the Russians, in which Marshall Davoust had been completely routed. This gentleman left Hamburg on the twenty-fifth ult. when this report was current in that city, and very generally accredited. That the Russians were in full march to that city is not doubted. The Hamburg article of the 31st ult. says "letters from Polish Prussia announce, that the Russians had arrived at Posen;" and again, "letters from Rostock of the 31st November, announce that no engagement had taken place between the French and Russians near Stavenhagen. A number of wounded Russians were brought to Rostock." If such an engagement had taken place, and if the Russians had been defeated, it would have been detailed at full length. On the twelfth ult. there were only three divisions of the French at Posen, amounting at the most to 30,000 men. Ney and Soult had only then begun to march for Brandenburg—Bernadotte and Mortier were in the vicinity of Hamburg, and Murat had not reached Berlin to late as the 18th ult. so that Davoust could be joined for some time by any considerable body of troops; if in the interval, the Russians had reached Posen in sufficient force, it is extremely probable that they availed themselves, of every circumstance in their favour.
December 6.
Mr. Thornton, our late minister at
Hamburg, arrived this morning.—He has brought intelligence of all the British merchants in Hamburg having been declared by Bonaparte prisoners of war!!
Extracts of a letter from Falmouth, dated Dec. 5, 1806.
"We have just time to inform you of our arrival here from Hamburg, which we were obliged to leave at a few moments notice, after a decree making all the English there prisoners of war."
"Bonaparte's last proclamation is to this effect—that British property of every description is to be confiscated—England is declared to be in a state of blockade—and all British subjects, who may be found in the countries occupied by the French, are declared to be prisoners of war."
"We left Altona at half past three o'clock on the twenty-sixth ult. Four or five thousand French left Hamburg the day before; they went through the Steingate (the road to Lubeck) their destination not known."
"The British factory had been arrested, but was liberated on parole; and it was to be hoped, would effect a compromise with the French."
"It is reported that the merchants and others made prisoners at Hamburg, have been arrested and marched prisoners to Vindun. Letters from Lisbon to Falmouth state, that it was currently reported there, that Bonaparte had demanded of the Spanish government, a categorical answer to three questions—First, the nature and terms of their negotiations with Russia. Second, Their reasons for not providing a sufficient security for their possessions in America. Third, Why Spain was not at present arming; demanding at the same time 50,000 dollars per day until such questions should be satisfactorily answered."
A Gottenburg mail arrived this morning with the following important intelligence which we hope will prove true.
Gottenburg, Nov. 30.
A Russian Courier has just arrived in ten days from St. Petersburg. He reports that in passing through Stockholm, he was told there had been an action between the French and Russians, in which the latter was completely victorious. He could not learn the particulars.
The British Packet Duke of Montrose was at Falmouth, England, on the 3d December and was expected to sail for New York on the 7th.
Trieste, Oct. 31.
Gen. Marmont arrived yesterday at the principal inn, and set off early this morning for Italy. The French troops are marching in numbers from Dalmatia into Italy by Flume.
Domestic.
Virginia Legislature.
HOUSE OF DELEGATES.
A motion was made that the house should agree to the following address and resolution:
To THOMAS JEFFERSON PRESIDENT OF THE U. STATES. SIR,
THE General Assembly of Virginia, viewing the present situation of the United States, both as it respects their foreign relations and their internal concerns, feel it a duty imposed upon them, to address you, in behalf of themselves and their constituents, and to request that you will, for another term after the expiration of the present, consent to be devoted to the service of your country. But, lest, the course now pursued, should, by the enemies of liberty, be misinterpreted to the prejudice of those pure principles of republicanism, which through your life, you have so zealously advocated, and so ably maintained, the General Assembly deem it proper, to declare the motives by which they are actuated:
1st. Human wisdom cannot with certainty foresee the period, at which our differences with foreign nations will be brought to that favorable issue, which justice may sanction; nor at which our commercial intercourse with them, will be placed on that equal footing of reciprocity, which the prosperity, and independence and the honor of the United States demand. It is possible that the most zealous employment of the best practicable means may not avail to produce those desirable objects, during the present term of your chief magistracy. In that event it is wished that you, who enjoy the full benefit of all the light which your and a nation's wisdom and experience combined, have shed upon the subject—that you, who are disposed to have "peace,
commerce and honest friendship with all nations;"—that you, who are the result of the undivided confidence and affections of the American people, should continue to preside over our General Government.
2dly. Although the General Assembly believe that the schism, which has recently taken place among the republicans, arose from a difference in opinion respecting mere questions of expediency, or of policy, in no manner extending to the principles of our government—and that an all maternal points their political faith in the same. Yet divisions of this innocent description, having once arisen, may be readily fomented by those of intemperate spirit, or artfully, by the wicked and designing, for the most unworthy purposes; until our political edifice, which is so justly preferred to all others in the world, for its beauty and its strength, will be entirely annihilated.
Upon the subject of "Animation of discussions, and of exertions, produced by contest of opinion," your sentiments are well known and highly appreciated. Though the will of the majority is in all cases to prevail, the minority possesses their equal rights, which equal laws must protect; and to violate would be oppression. "Brethren of the same political principle ought never to be called by different names." The General Assembly know no character, who might probably be elected to succeed you, to whom they would so willingly, or could so fully confide the pleasing task of promoting and cherishing, among our political brethren, that perfect union and good will which are essential to the general happiness, and that "harmony and affection without which, liberty and even life itself, are but dreary things."
3dly. A view of the last administration will prove that, in order to preserve our union, and our civil liberty, it is necessary that our confidence should be placed in a constitution rendered as perfect an experience and human wisdom can make it, and not in the infallibility of our public agents. Your opinion relative to some of the most glaring defects in the federal constitution, has been long since announced to the world. Before its adoption, you declared your attachment to the principle of rotation in the presidential office. And when you have been elevated to the dignified station, you have cast aside the pure republican principle into practice, by declining all pretensions to a re-election to that office, after the expiration of your present term. Such an instance of rare patriotism hath not frequently occurred, and it is therefore viewed, by the friends of liberty, with the highest and most pleasing tenibility. This act, under existing circumstances, is considered as equal to a renunciation of office, and as tantamount to a reasonable absence therefrom.
Your declarations and your conduct prove it to be your will, that the extensive and dangerous patronage annexed to the Presidential office, should, for the public good, be diminished by constitutional provisions. And that such amendments to the constitution should be adopted, as "may fix it upon principles capable of restraining human frailties, and of defying the wiles of construction."
The general assembly adopt the sentiments and the language of the venerable Pendleton, in declaring that "it is only when great and good men are at the head of a nation, that the people can expect to succeed in forming new barriers to counteract recent encroachments on their rights, and whenever a nation is so supine as to suffer such an opportunity to be lost, they will soon feel that the danger was not over."
It will not be considered that an imputation is intended against the patriotism of any citizen when it is asserted, that "of men advanced to power, more are inclined to destroy liberty than to preserve it." But the whole tenor of your conduct has proved to the world, that you are an exception to this maxim—that you are inclined to promote the liberty and happiness of man. The general assembly of your native state, do therefore, for the reasons above assigned, most earnestly request, that you will continue to
be President of the United States, for another term of four years.
The General Assembly of Virginia, in the execution of this duty, are influenced by the following considerations:
1st. A motion was made that the house should agree to the following address and resolution:
To THOMAS JEFFERSON PRESIDENT OF THE U. STATES. SIR,
THE General Assembly of Virginia, viewing the present situation of the United States, both as it respects their foreign relations and their internal concerns, feel it a duty imposed upon them, to address you, in behalf of themselves and their constituents, and to request that you will, for another term after the expiration of the present, consent to be devoted to the service of your country. But, lest, the course now pursued, should, by the enemies of liberty, be misinterpreted to the prejudice of those pure principles of republicanism, which through your life, you have so zealously advocated, and so ably maintained, the General Assembly deem it proper, to declare the motives by which they are actuated:

The Circuit Court of the District of Columbia, delivered their opinions on Friday in the case of Bollman and Swartwout.
Chief Judge Cranch said it was the opinion of a majority of the Court that Erick Bollman & Samuel Swartwout should stand committed for the crime with which they were charged, and it was also the opinion of a majority of the court, that they ought not at present to be admitted to bail. He assigned at some length the reasons which induced him to dissent from the opinion of his brethren.
Justices Fitzhugh and Duckett also delivered their opinions at length in favour of the commitment of the prisoners for treason, and against admitting them to bail.
Mr. Lee moved for a special court to try the accused, and urged their desire to have a speedy trial.
Some conversation ensued between the court and the counsel, as well on the time of trial, as on the competency of the circuit court of the District of Columbia to take cognizance of the crime charged to the accused. No decided opinions were expressed though the prevailing sentiment was that this court had jurisdiction of the case.
The court observed that they were obliged in April to hold a court in Alexandria, and that as a special court had been ordered in the county of Washington, on the 4th Monday in March, they should then take order in the case.
Mr. Lee expressed a wish as well at the instance of the marshal as of the accused, that the court would give directions whether they were to have the liberty of pen, ink and paper. The court declined giving any positive decision on the point. They expressed an opinion that they saw no objection to the indulgence, but rested it on the discretion of the marshal, of whose humanity and faithful performance of duty there could be no doubt.
A Frankfort (Ken.) paper of the 8th ult. says that capt. Phillips of Jefferson county, informs that he passed col. Burr on the 31st ult. at an encampment near the mouth of Cumberland River, where it is conjectured he is endeavouring to collect his troops and provisions.
It is reported (says the same paper) that col. Burr has three or four hundred men assembled at his encampment. If the latter should be his whole force at that place, col. Ramsey, of Livingston county, who is authorised by the executive to call out eight companies of militia, will give a good account of him. Col. B. it is expected, would be ready to act by the 2nd inst.
United States
vs.
Messrs. Bollman & Swartwout.
The following opinions were delivered on the 30th ult. in the Circuit Court of the District of Columbia, on the motion to commit the prisoners.
Chief Judge
CRANCH,
Delivered the following opinion:
It is the opinion of a majority of the judges that Erick Bollman and Samuel Swartwout should be committed for trial for the crime with which they are charged. It is also the opinion of a majority of the judges that they ought not at present to be admitted to bail.
wars, and rumors of wars, plots, conspiracies and treasons excite alarm, it is the duty of a court to be peculiarly watchful lest the public feeling should reach the seat of justice, and thereby precedents be established which may become the ready tools of faction in times more disastrous. The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which an 100 innocent persons may suffer.
The constitution was made for times of commotion. In the calm of peace and prosperity there is seldom great injustice. Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary, calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude.
Whenever an application is made to us in our judicial character, we are bound, not only by the nature of our office, but by our solemn oaths, to administer justice according to the laws and constitution of the United States.
No political motives, no reasons of state can justify a disregard of that solemn injunction.
In cases of emergency, it is for the executive department to act upon its own responsibility, and to rely upon the necessity of the case for its justification; but this court is bound by the law and the constitution in all events.
When therefore the constitution declares that "the right of the people to be secure in their persons," "against unreasonable seizures," "shall not be violated," and that "no warrants shall issue but upon probable cause supported by oath or affirmation," this court is as much bound, as any individual magistrate, to obey its command.
The cause of issuing a warrant of arrest, is a crime committed by the person charged. Probable cause, therefore, is a probability that the crime has been committed by that person. Of this probability, the court or magistrate, issuing the warrant, must be satisfied by facts supported by oath or affirmation. The facts therefore which are stated upon oath, must induce a reasonable probability that all the acts have been done which constitute the offence charged.
The question whether a crime has been committed is a question partly of law, and partly of fact.
What acts constitute the crime, is a question of law.
Whether those acts have been done, is a question of fact.
The crime charged in the present case is treason against the U. States.
The question of law is, what acts constitute that crime?
The 2d sec. of the 3d art. of the constitution of the U. S. says, that "treason against the United States, shall consist ONLY in levying war against THEM, or in adhering to their enemies, giving them aid and comfort."
As it is not contended that the prisoners are guilty under the second clause of the definition; if guilty at all, it must be of treason in levying war against the United States.
To a man of plain understanding it would seem to be a matter of little difficulty to decide what was meant in the constitution by levying of war; but the subtilties of lawyers and judges, invented at times of heat and turbulence, have involved the question in some obscurity.
It is not my intention, at this time, to say, how far the expression ought to be limited, nor how far it has been extended. It is however to be hoped that we shall ever in this country adopt the long list of constructive treasons invented in England by the worst judges in the worst of times. It is sufficient to say that the most comprehensive definition of levying war against the king, or against the United States, which have been, requires an assemblage of men, ready to act, and with an intent to do some treasonable act, and armed in warlike
manner, or else assembled in such numbers as to supercede the necessity of arms.
The advocates for the prosecution have as I understand, contended for a more unlimited definition than this.
It is unnecessary, and perhaps would be improper for me at this time, to say more on the question of fact, than, that in my opinion, there is no probable cause, supported by oath or affirmation, to charge either Dr. Bollman or Mr. Swartwout with treason by levying war against the U. S.
From some of the doctrines urged on the part of the prosecution, I must, most explicitly declare my dissent.
I can never agree that executive communication, not on oath or affirmation, can, under the words of our constitution, be received as sufficient evidence, in a court of justice, to charge a man with treason, much less to commit him for trial.
If such doctrines can be supported, there is no necessity of a suspension of the privilege of the writ of Habeas Corpus, by the authority of the legislature.
As it is admitted that such communications cannot be evidence on the trial, and as an opinion on that point, therefore, cannot be considered as prejudging any question which can occur in a subsequent stage of the prosecution, I have thought proper to be thus explicit on that point. To have said less, I should have deemed a dereliction of duty.
The substance of JUDGE DUCKETT'S opinion.
Mr. D. said he should not make many observations in addition to what he had remarked on granting the district attorney's motion, for a warrant to arrest the prisoners on a charge of treason. Nor should he make any professions of scrupulous attachment to the right of personal liberty on the citizens of our country; because, if the whole tenor of his conduct through life, had not evinced such attachment, he felt assured that no professions on his part could on this point secure confidence of the public.
He concurred in the sentiment, that no reasons of state, no political motive should be suffered to influence in the slightest degree the decision of the present question; but while on the one hand, a due regard should be paid to the right of personal liberty in the citizen, we should not be entirely forgetful of the duty we owed to the public, of preserving the constitution and government of the country.
That on the question then before the court, he would observe, as he had done when the warrant issued, that he would at that time give no opinion, as to what constituted a levying of war within the definition of treason in the constitution of the United States. That it appeared to him unnecessary, if not improper to do so, as he might be called upon to decide the law, in reference to the facts that might appear on the trial of the prisoners.
That the only question then to be decided was, whether there was probable cause supported by oath or affirmation as required by the 6th article of the amendments to the constitution, to induce a belief that the prisoners were guilty of the crime for which they had been arrested. This question he said had been deliberately considered by the court before the warrant issued, and he thought every thing in this inceptive state of the business, was regularly an ex parte proceeding; he therefore had been against permitting counsel to argue on any question, except, whether the offence was bailable, and whether under the circumstances, the court in their discretion ought to bail. They had, however, been allowed to argue in effect to the utmost latitude against the propriety of having issued the warrant. To this argument he had given the strictest attention, and could observe with Mr. Fitzhugh, that it would have been well addressed to the jury, if the prisoners had been upon their trial. It had however produced no alteration
in his opinion, as he still thought there was probable cause appearing to the court to authorise the commitment of the prisoners for trial.
To determine this question said Mr. D. let us take a short view of the evidence.
The depositions of general Wilkinson prove unquestionably, the connection of the prisoners with col. Burr in carrying into effect one common intent or plan, and their knowledge of this view. They indeed shew from the acts of the prisoners and their own confessions, their immediate agency in the furtherance of this scheme. If then it can be shewn, that Mr. Burr has probably committed treason, their agency and connection with him, while possessing this knowledge of his treasonable views, create the same probability against them, as in the same treason all in this stage of the business must be considered principals. What then was the intention, the quo animo with which Mr. Burr's expedition was undertaken? This by general Eaton's deposition, is proved to be the separation of the western from the Atlantic states, and the establishment of a monarchy there, of which Mr. B. was to be the sovereign. It is probable he had another object in view, the invasion of Mexico; but this does not appear to be distinct from his treasonable plan of dismembering the union. This treasonable intention is also stated in the confessions made to general Wilkinson by one of the prisoners. In the pursuit then of this object we find that Mr. B. had actually commenced the expedition, and that he expected to be at Natchez with an armed force at a certain period.
It appears too, from the confessions of the prisoners themselves, that Mr. B. was levying a large body of armed men, and what may go far to prove their knowledge of and agency in that business is, that the officer who was to command the first five hundred men is stated by name. One of the prisoners also says that he had written to col. Burr for provisions. Should these circumstances, of themselves, not amount to overt acts of levying war, upon which question Mr. D. said he should at that time say nothing, yet when taken in connection with the situation of the country, the state of alarm existing among the people, and the active preparations of defence against an expected attack, they furnished strong prima facie evidence that they had been followed up by the commission of other acts on the part of Mr. Burr and the prisoners, that would amount to a levying of war within the strictest definition of the terms. Nor is there any thing in the testimony said Mr. D. that can positively exclude the inference of an active co-operation on the part of the prisoners in the different measures that are probably imputable to Mr. B.
Mr. D. then remarked that an observation made by himself in issuing the warrant, seemed not to have been correctly understood by the prisoners' counsel.
He had not said, that in the present case it was necessary to resort to public documents to aid the depositions in furnishing probable cause for the arrest; but he would not now observe, as he had then done, that although the depositions did to his mind establish a probable cause on which he could act, yet that this probability was strongly corroborated by the message of the President and other public documents on the subject. That even admitting that the 6th article of the amendments to the constitution which provides against general warrants, may require an oath or affirmation before any warrant can issue, yet he could not subscribe to the doctrine, that the circumstances shewing the probable cause, must in all cases be contained in the oath or affirmation itself. If this principle be once considered correct, it would indeed when taken in connection with the necessity contended for in the present case, of proving on a question of commitment the positive existence of the offence charged, be the worst precedent, as it regarded the public
safety that could possibly be established, though at the same time it might be the most convenient cloak for treason that could be invented. Under this doctrine, even an authenticated record shewing the conviction of Mr. B. of treason, could it be produced on the present question, would be deemed inadmissible in corroboration of the probable cause contained in the affidavits.
Mr. D. concluded by observing, that he was opposed to bailing the prisoners, for although the evidence might also have charged them with a misdemeanor in setting on foot an expedition against a nation at amity with the United States, yet as they had been arrested on a charge of the highest offence against their country, nothing but their persons could be considered an adequate security to the public.
NEW-YORK, Feb. 3.
Last night the Editors of the N. York Gazette received the following interesting News from N. Orleans, by the brig Neptune.
That on the 6th ult. general Wilkinson received a letter from Burr, who was at Natchez, requesting to know if the general would suffer him to PASS New Orleans. The general stuck his determination to oppose Burr's passage on the coffee-house books, and at the same time requested the Merchants to order the vessels down to Plaquemine, to prevent Burr from using them to aid in his plans. The general's Note on the coffee-house books threw the city into confusion.
The force which Burr had with him was not accurately known—but it was said his advanced guard under Adair consisted of 300 cavalry, and Burr was at the head of 600 troops, all arrived at the Natchez.
All the gun-boats, two ketches, and the schooner Revenge, had sailed up the river under the command of commodore Shaw.
The militia and volunteers were all put under arms the 6th ult. and were on duty when the Neptune sailed.
Mr. Ogden was in confinement at Fort St. Philip. Alexander had been sent on to Washington. Edward Livingston was at large—he was believed to be innocent.
Lieut. Small, of the United States army, and a Mr. Henderson, who had lately resigned his commission in the army, had been arrested as participators in Burr's conspiracy.
HONEST WAR.
Congress is now as obnoxious to Federal and quiddical folly, as the executive was some time ago; the executive, to the grateful and joyous disappointment of his friends, has by knowing and understanding the feelings of his fellow citizens, verified even more than anxious friends could expect to be accomplished so effectually and by such wellarranged and sober means—a conspiracy having its ramifications in every part of the union, its adherents in every city—and the most extraordinary credits (credulity!) in even the most sedate mercantile house; arms and stores to an extraordinary amount provided, and a multitude composed of the glittering filth of the nation embarked in this comprehensive conspiracy is, in fact, destroyed by a single operation of a wise and discreet magistrate: individuals were not apprehensive of ultimate danger to the nation, but they were anxious lest the executive should be deceived or not sufficiently guarded; they felt for the man; who without resorting to the parade of arms or the augmentation of cumbersome and unfruitful establishments, called forth the public voice—the patriotism and virtue of the country—the voice was heard, and the treason was blasted. Before such triumphs the sanguinary glories of Austerlitz and Jena fade. They embrace a multitude of animating and delighting causes of national pride and true glory; they wipe away from the nation the stain of treachery and treason; they prove the stability, the calm confidence of a

free nation—they establish the wisdom of a pacific but a steadfast and well informed administration. What had been our condition if such statesmen as Adams with such counsellors as Pickering and Wolcott, held the national helm? We should have been told the finger of heaven pointed at war—and the feeble minds of such men would have once more thrown the nation into a convulsion by alarms, augmented our naval and military establishments, and erected mountains of stone and mortar under the name of fortifications, only to extend their patronage, to create jobs, and raise enormous loans at enormous interest—in order to perpetuate the blessings of a national debt.—The tranquility of the nation is the noble commentary. Aurora.
The Star.
Lynchburg.
Thursday, February 19.
Married on Wednesday the 11th inst. Mr. SAMUEL ARMISTEAD, Merchant of Pittsylvania , to the much accomplished and amiable Miss SALLY MARTIN, daughter of Gen. Joseph Martin of Henry County.
We have had no Western mail for the last two weeks, owing probably, to the excessive severity of the weather.
The British have acknowledged Miranda.—The Duke of Sussex is expected at Jamaica, with a squadron of ten or twelve ships of the line.
Money abounds in the Western States. 'Tis an ill wind that blows nobody good.' The farmers and graziers, on the western waters, from Fort Pitt to the mouth of Cumberland, have had a fine market last fall and winter for their flour, pork, and beef. Contractors also have been vast gainers; and more especially, after enumerating the clear profits of Burr's negotiable paper,
The paricidal abortive attempts of Blount, Arnold, and Burr, hold out but poor encouragement for daring traitorous villains who in future, may be inclined to conspire to destroy, or subvert the liberties of their country.
Col. Burr has generously requited the hospitality and distinguished politeness of the citizens of Kentucky.—He has made such an impression there as not to be soon forgotten.—Lexington alone will lose not less than $50,000 by him.
Newspaper reports from Martinique and Trinidad, state that the combined forces of Russia & Prussia had destroyed an army of 60,000 French. And that the greatest commotion prevailed at Paris—All this requires confirmation.
Curratua is said to have surrendered to the British forces lately sent against it from Jamaica.
Brigadier Gen. Levy Casey, a member of Congress from South Carolina, died at Washington on the 1st. inst. in the 59th year of his age, deservedly lamented as a citizen, soldier and patriot.
On the motion of Dr. Leib in the House of Representatives of Pennsylvania (with the view of an impeachment) a committee was appointed to enquire into the official conduct of Governor M c Kean.
Extract of a letter from Trinidad, dated December 30, received by a mercantile house in this city. "Bonaparte had overrun nearly the whole Continent, but his late defeats by the combined armies of Russia and Prussia near Posen, will, I trust, give such a turn to his affairs as may procure to him a passage to Siberia. He
is said to have lost in the three battles, three days successively, 60,000 men killed, wounded and prisoners. In short he was completely routed. Orders were issued for marching the conscripted from every part of France. Great commotions it is said, prevail at Paris; this we have from Martinique, where the news had also arrived express. This will change the face of all Europe."
The ingenious language in which the following exit is couched, cannot but command the admiration of the reader. Or. Rep.
DIED , at Boston, Mr. Thomas Parker, aged 30—an active officer in the revolutionary war. The following is an extract from his Logbook:
"First part of the voyage, pleasant with fair breezes and free winds—All sail set—spoke many vessels in want of provisions—Supplied them freely—Middle passage—Weather variable—Short of provisions—Spoke several of the above vessels, our supply had enabled to refit. Made signals of distress. They up helm and bore away.—Latter part. Boisterous, with contrary winds—Current of adversity setting hard to leeward. Towards the end of the passage cleared up; with the quadrant of honesty and an observation; corrected and made up my reckoning, & after a passage of fifty years, came to in Mortality Road with the calm unruffled surface of the ocean of Eternity in view." Farewell honest Tom; in the harbor thou hast now reached no dead reckoning is kept. Your integrity in this life will there be your protection : your charitable deeds your Role d'Equipage ; and will pass an approving Examination ; and we trust your soul will be taken under the safe convoy of the High Admiral of the Universe. Though while on this station you meet with " life's rubbers ," "Yet shall poor Tom find pleasant weather, When he who all commands, Shall give to call life's crew together The word to pipe all hands ."
[From the Virginia Argus.]
The unfortunate circumstance of the death of Mr. JOHN M c CREADIE, which took place at the barracks of the public guard, on last Wednesday evening, can never be too much lamented. The deplorable situation of his affectionate consort, thus unexpectedly deprived of the partner of her life; and the irreparable loss sustained by his children, who, in one short moment, have become orphans, must excite the commiseration of every feeling heart. His acquaintances also have much cause of regret at the premature death of a gentleman esteemed and respected by them all.
On such an occasion it is natural that the public mind should be considerably agitated. The circumstances, which attended this catastrophe, ought therefore to be correctly known:—
A fire having broken out in the house of Mr. Shields, in the neighbourhood of the barracks, the alarm bell was rung, and Mr. M c Creadie, among other citizens, was running hastily towards the place, for the purpose of assisting in extinguishing the flames. He was passing the barracks, and was three times hailed by the centinel on guard: but (in consequence of his eagerness to get to the scene of the fire, his being out of breath, or some other cause which cannot now be ascertained) did not answer; and was pushing on directly towards the centinel, in his way to Mr. Shields's, with his buckets in his hands; when the centinel fired his musket, and shot him dead on the spot. It is reported that at the moment the piece was presented, a gentleman accompanying Mr. M c Creadie called out, "don't shoot, it is Mr. M c Creadie;" but the words were too late: the trigger unluckily having been drawn nearly at the same instant. The centinel whose name is Wm. Nash, is now
in custody, and the coroner's inquest have found it wilful murder.
Notice.
WILL be sold to the highest bidder, on Saturday the 21 st inst. before the door of the Indian Queen Tavern, in the Town of Lynchburg, a Negro Man who is an excellent WATERMAN.
The term of sale will be one half cash, the other half in 12 months, the purchaser giving bond with approved security, to bear interest from the date, if not punctually paid.
Jesse Anderson, Adm r . of C. D. Jones.
N. B. The sale of the above negro has been unavoidably postponed from the badness of the weather. He will certainly be sold on the abovenamed day.
Feb. 18, 1807. J. A.
Ten Dollars Reward.
RANAWAY from the subscriber, living in Amherst County, near Lynchburg, on the second day of December last, a negro man named
EMANUEL.
—about 21 or 22 years of age, rather of a yellowish complexion, supposed to be five feet one or two inches high, straight and well made, with a scar on one of his cheeks, and another near the top of his head. He has a pleasing countenance when spoken to. His front teeth are broad. He has commonly acted as an Hostler, and is a tolerable good shoe-maker. The said fellow I purchased of the late Powhatan Bolling Esq. in his lifetime. This Runaway is well acquainted from here to Richmond.—He took away with him several suits of clothes of different kinds—also a drab-coloured great coat half worn. Any person delivering said slave to me, or securing him in any jail, so that I get him again, shall receive the above reward. All persons are forewarned from harbouring him at their peril.
PHILIP JOHNSON. Amherst, Feb. 18, 1807. if.
Notice.
BY virtue of a Deed of Trust, executed by Wm. Meguffin to John Thompson, will be sold at Amherst court house, for cash, on Monday 2nd March next, one Waggon, and four or five horses, well broke to the Waggon, with a complete set of Gear—Also a quantity of household furniture, and two Cows; all, or such part of the same, as may satisfy the debts specified in the Deed of Trust, and the legal cost.
JOHN THOMPSON. Amherst, 14th Feb. 1807.
Notice.
ON Saturday the 21st day of March next, at Cornelius Powell's Tavern, at the place commonly called the Oaks, in the county of Amherst will be exposed to public sale, for ready money, the lands whereon Frederick Fultz now lives, containing 201 acres more or less, and a negro man named JOE, by virtue of a Deed of Trust for the purpose of satisfying the debts therein mentioned, or so much of said property as will be sufficient to discharge the said debts.—The subscribers will not warrant the title to said land or slave, but will only convey to the purchaser or purchasers the right which is vested in them as trustees.
Robert Walker, Geo. Dillard, Thos. Crews. } Trustees. Feb. 18, 1807. (5wds.)
Cares Due.
WHEREAS the Corporation Tax due for the year 1806, became due on the first of December last, and have not yet been collected—if not paid to me before the 27th of this month, I shall distress and sell for the same.
JOHN DAVIS, jr. S. C. L. 9th Feb. 1807. 2w.
Townsmen Shoe-makers.
Generous wages (punctually paid) and constant employment will be given by the Subscribers at their Manufactory in Abingdon, to half a dozen STEADY, CAPITAL, YOUNG MEN SHOE-MAKERS. At the same place by the subscribers also, will be received the same number of smart, active, industrious lads of good morals, between the years of ten and fifteen, as apprentices to the Tanning and Saddling Business.—By the concerned in, or about Lynchburg, further particulars may be known on application at the Star-Office.
Conally Findlay & Co. Abingdon, (Va.) 8th Jan. 1807.
Advertisement.
TO be sold to the highest bidder, for ready money, at John Hook's Store, near Hall's Ford, in Franklin County, on Thursday the fifth day of March next, four Negroes, viz:—
Bet, York, Silvia, and Jacob, the same being made over in trust to the subscribers, to secure and satisfy a debt due from James Wright to John Hook, amounting to two hundred and twenty-eight pounds, together with the accruing interest and charges incidental on the Trust Deed and the sale—or so many of said Negroes as will be sufficient to discharge the debt aforesaid.
Bowker Preston. Benjamin Booth. } Trustees. Hailsford, Jan. 24, 1807. ids.
Virginia.
Bedford August Court, 1806. James Keenan Compt. vs William Mason, Reuben Mason, John Mason, Lewis Mason, William Rozwell and Jenny his wife, late Jenny Mason, Charles Ready and Sarah his wife, late Sarah Mason, William Fritth and Rhoda his wife, late Rhoda Mason, Children and Representatives of Gifford Mason, des'd. Defts. IN CHANCERY.
ON the motion of the complainant, and for reasons appearing to the court, the accounts between the parties in this cause, are referred to the master commissioner, to examine, state and return the same, with his report thereon to court. A Copy—Teste. J. STEPTOE, C. B. C. 8w.
NOTICE.
IN consequence of the above order of Bedford Court, (unforeseen accidents excepted) I shall attend at Bedford Court house, on Thursday the 19th day of March next, being the Thursday before Bedford Court, for the purpose of examining &c. the accounts of the abovenamed parties, they are therefore required, to attend at the abovenamed time and place prepared to go into a settlement of the business.
Thomas Lumpkin, Comr. Jan. 19, 1807. 8w.
FOR SALE
Sketches OF THE History of France. HYMNS. GAMUTS.
THE Planter's and Farmer's
ALMANACK
For the year 1807, Star-Office. Feb. 1807.
Runaway in Jail.
WAS committed to the Jail in this place, as a Runaway, on Thursday the 16th October, 1806 a negro man who calls his name
NATT,
and says he belongs to a certain Richard Herd, in the state of Georgia, Albert or Elbert county—he is between 30 and 40 years of age, a very black skin, lost some of his upper fore teeth, has remarkable small hands and feet, was but badly clothed when taken, he had on an old green places round jacket, an old green shirt, an old pair of home spun yarn breeches striped with yellow, and an old felt hat, is mild spoken and appears humble when spoken to—He says he was endeavouring to make his way to Maryland where he was entitled to his freedom by devise—The owner of said negro is requested to come forward, immediately, prove property, pay charges, and take him away, or he will deal with him as the law directs.
John Davis, Jr. S. C. L.
NOTICE.
THE subscriber respectfully informs the citizens of Lynchburg and its vicinity, that he has just commenced the BAKING BUSINESS in the above place, and proposes to furnish all those who may choose to patronize him, with 1900s of Bread, to a barrel of flour. He will bake pilot bread, ship bread, crackers, butter-biscuit, rusk, pine cake, &c. &c. JAMES ALBERT. Lynchburg, 27th Nov. 1806.
Messrs. Taliaferro and Patterson.
Gentlemen, THIS notice, that on the 27th of February next, at my house in Amherst County, I shall commence taking the depositions of Daniel Cheswood, William Cheswood, James Dillard, Dury Bell, William Lee, & James Christian, to be read as evidence in a suit in the High Court of Chancery at Richmond, wherein Taliaferro & Patterson are Plaintiffs, and Jesse Spinner, Defendant, at which time and place you may attend or not, the taking the above depositions will continue from day to day until finished. JESSE SPINNER. Amherst, Jan. 7, 1807. 4v
NOTICE.
TO be sold to the highest bidder, at public auction, for ready money, on the 26th day of February next at the dwelling house of Mrs. Harris in the county of Bedford, TWO
Tracts of Land,
lying in the said county.—One containing two hundred and twenty acres on the East side of Elk Creek; the whole of this tract is good, and a great part of it first rate Tobacco land, with a small portion fresh cleared—The other tract lies on the west side of said creek, and two so of go and pla be sold
confiden order t Wm. to fecu debits early r the ex ing the person there i
Jan. Pap WHO their a manag have a tice, c neater compl on an Star-O Feb. 1807.

Miscellaneous.
The following case, selected from Hening and Randolph's Reports lately published, and now for sale at the office of the Virginia Argus-Richmond, is hoped will be interesting to our readers. The query able and enlightened opinions delivered by Judges Tucker and Roane, are well worthy the perusal, not of Lawyers only, but of every liberal minded friend of the rights of human nature. The points decided were, 1st. That where white persons or native American Indians or their descendants in the maternal line are claimed as slaves, the onus probandi lies on the claimant; but it is otherwise with respect to native Americans and their descendants, who have been, and are now held as slaves. 2d. That in suits for freedom, a variance between the evidence and the case stated by the plaintiff will not be regarded by the court; but the decision will be according to the rights of the parties, in the case made out by the evidence at the trial. 3d. That if a female ancestor of a person asserting a right to freedom is proved to have been an Indian, it lies on the claimant to show that such ancestor, or some female from whom she descended, was brought into Virginia between the years 1679 and 1691, and under circumstances, which exempted her from the locus classicus force, created a right to hold her in slavery. It seems also deducible from this case, that no native American Indian could be made a slave under the laws of Virginia, since the year 1691.
Supreme Court of Appeals.
Hudgins vs. Wrights.
THE appellants, in the case, which was an appeal from the high court of chancery, were permitted to file a bill of exceptions . For appellant being bound to send them out of the case, a bill of exceptions was obtained from the chancellor, on the ground that they were entitled to freedom. In their bill they asserted this right, as having been descended, in the maternal line, from a free Indian woman. But then generally they very imperfectly stated. The time of the birth of the youngest was established by the testimony; and the character of the mother, the complexion, the hair and etc. were proved to have been the same with those of whites. Their genealogy was traced back by the evidence taken in the cause, (though different from that mentioned in the bill) through female ancestors, to an old Indian called Butterwood Nan . One of the witnesses who had seen her, described her as an old Indian. Others prove, that her daughter Hannah , had long black hair, was of the right Indian copper colour, and was generally called an Indian by the neighbours, who said she might recover her freedom if she would live for it; and those witnesses deposed that they had often seen Indians. Another witness ( Robert Temple ) whose deposition was taken on the part of the appellant, proves that the father of Butterwood Nan was said to have been an Indian, but he is silent as to her mother. On the hearing the late chancellor perceived from his own view, that the youngest of the appellants was perfectly white, and that there were gradual shades of difference in color between the grandmother, mother, and grand-daughter, all of whom were before the court; and considering the evidence in the cause, determined that the appellants were entitled to their freedom; and moreover, on the ground that freedom is the birth-right of every human being, which sentiment is strongly inculcated in the first article of our "political catechism" the bill of rights—he laid it down as a general position that whenever one person claims to hold another in slavery, the onus probandi lies on the claimant.
Remarcks , for the appellant. The ground on which the appellants claim their freedom is, that they are lineally descended from a free Indian woman. On the other side it is contended, that they are descended from a negro woman by an Indian. The onus probandi is of mind, and in a de-canon-ard. to and the from will fe-this and are
ake? hat act ved l by act adith were of liar
circumstances under which the bill was drawn will readily account for any inaccuracies which may appear in stating the genealogy of the appellants. But would it have been prudent or even necessary to delay the cause, by an amended bill?
He then took a circumstantial view of the evidence, and intoned that it clearly proved the appellants to have descended from an Indian flock ; all the witnesses deposed to the fact that the female ancestor under whom they claimed, was "of the right Indian copper colour," with long black hair; that she was called an Indian in her master's family, and by the neighbours generally, who said she might get her freedom if she would live for it; and many of them had often seen Indians. What more than strong circumstantial features would be required to prove a person white ?
It, in fact, the appellants are descended from Indians, it is incumbent on the appellants to prove that they are slaves; the appellants are not bound to prove the contrary.
From the beginning of the world till the year 1679, all Indians were in fact as well as right free persons. In that year an act passed declaring Indian prisoners taken in war to be slaves; and in 1682 another, that Indians sold to us by neighbouring Indians and others trading with us should be slaves. These acts remained in force (till 1691, as supposed by one of the Judges, or at farthest till 1705, when it has been decided it was repealed).
As all Indians were free, except those brought into this country within the previous and under the circumstances just mentioned, the appellant must bring the appellants within those exceptions to be entitled to their services as slaves. Not a case can be shown from the books where a person claiming under an exception, must not bring himself within it. This is the law with respect to the act of limitations, and many others.
Having proved the defect of the appellants to have been from Indians, as he conceived, he then undertook to prove, from the course of nature, and the early periods at which Indians, unenlightened by a sense of morality, propagate their species, that the appellants, by descent , could trace their genealogy back to Indians, who must have been brought to this country since the year 1691.
Remarcks in reply. The circumstances of the appellants being white , has been mentioned, more to excite the feelings of the court as men, than to establish them as judges.
In deciding upon the rights of property those rules which have been established, are not to be departed from, because freedom is in question. The allegata as proved ought surely to be attended to; as the appellant has not had an opportunity of answering the pedigree stated in the bill. But if he was compelled to go into evidence, without regard to the allegations of the bill, he was prepared to show that the weight of it was with the appellant.
He then endeavoured to show from the testimony that the original Indian flock from which the appellants descended, was derived from the paternal line . They are bound to prove that they are descended from a free Indian woman. It has been uniformly decided in this court, that the maternal line must be established before the onus probandi is thrown on the other side.
Cur. adv. vult.
Tuesday, Nov. 11th the judges delivered their opinions.
Judge TUCKER :—In that case, the plaintiffs claim their freedom as being descended from Indians entitled to their freedom. They have set forth their pedigree in the bill, which the evidence proves to be fallacious. But as there is no Ho-rald's office in this country, nor even a Register of births for any but white persons, all those Registers are either all lost, or of all records the most imperfect; our Legislature even in a writ of Præcipe quod reddat has very justly dispensed with the old common law precision required in a writ of right, and the reason for dispensing with it in the present case is a thousand times stronger. In a claim for freedom, like a claim for money had and received, the plaintiff may well be permitted to make out his case on the trial according to the evidence.
What then is the evidence in this case? Unquestionable proof adduced perhaps by the defendant, that the plaintiffs are in the maternal line descended from Butterwood Nan an old Indian woman; that she was 60 years old in 1775, or upwards; that it was always understood that she was an Indian, though she cautiously avoids saying he knew, or ever heard, who, or what, her mother was. The other witness Mary Wilkinson , the only one except Robert Temple , who had ever seen her, describes her as an old Indian; and her testimony is strengthened by that of the other witnesses, who depose that her daughter Hannah had long black hair, was of a copper complexion, and generally called an Indian among the neighbours; a circumstance which could not well have happened, if her mother had not had an equal, or perhaps a larger portion of Indian blood in her veins. As the rule partus sequitur ventrem obtains in this country, the deposition of Robert Temple as to who was reputed to be the father of Butterwood Nan , without noticing her mother, is totally irrelevant to the cause. It could not serve the appellant, if servitude is shall or prejudicial. It was, perhaps, intended as a sort of negative pregnant. But it has not even the tythe of that importance, in my estimation.
In aid of the other evidence, the chancellor decided upon his own view. Thus, with the principles laid down in the decree, has been loudly complained of.
As a preliminary to my opinion upon this subject, I shall make a few observa-
tions upon the laws of our country, as connected with natural liberty .
From the first settlement of the colony of Virginia to the year 1778, (30. Sess.) all negroes, Moors, and mulattoes, except Turks and Moors in amity with Great Britain, brought into this country by sea, or by land, were slaves. And by the uniform declaration of our laws, the descendants of the females remain slaves to this day, unless they can prove a right to freedom, or by descent in the maternal line from an emancipated female.
By the adjudication of the general court, in the case of Hannah and others against Davis , April term 1777, all American Indians brought into this country since the year 1705, and their descendants in the maternal line are free. Similar judgments have been rendered in this court. But I carry the period further back, viz: to the 16th day of April 1691, the commencement of a session of the General Assembly at which an act passed, entitled " An act for a free trade with Indians ," the title of which, (chap. 9.) will be found in the edition of 1733, p. 94. And the enacting clause of which, I have reason to believe is in the very words of the act of 1705, upon which this court have pronounced judgment in the cases referred to. I will here mention those reasons. On the trial of a similar question on the Eastern shore , two copies of Purvis's edition of the laws of Virginia, were produced. At the end of both was added a manuscript transcript of all the acts of assembly subsequently passed for a series of years; the titles, number of chapters, &c. perfectly agreeing with the titles, number and order in which they are printed in the edition of 1733. In one of those copies (both evidently of ancient date, and as I think both attested by the Secretary of the colony ;) I found the enacting clause in the same precise words, as they stand in the act of 1705. In the other copy, the last act which was attested have been transcribed, was with one, or at most two others, evidently torn out; probably with a view to hide the act from the scrutinizing eye of a court. I think it highly probable, that at that period, the county courts were furnished with the laws of the colony in this mode; there being at that time no printing press in Virginia; Purvis's recollection being printed in England. I have myself a mutilated copy of the same character and description,—but those in whose possession it had been, had torn out almost an unnumbered pages at the beginning, and to many at the end as not to leave the act in question, before I became possessed of it.
There are my reasons for referring the commencement of the law in question to so remote a period: for the act of 1705, were like those of 1792, a digest of the former laws of the colony, rather than a new code.—By an act passed in the year 1679, it was for the better encouragement of soldiers, ordered that what Indian prisoners should be taken in a war in which the colony was then engaged should be free purchase to the soldier taking them. In 1682, it was declared that all servants brought into this country, by sea or land, not being Christians, whether negroes, Moors, mulattoes, or Indians, except Turks and Moors in amity with Great Britain; and all Indians which should thereafter be sold by neighboring Indians or any others trafficking with us, as slaves, should be slaves to all intents and purposes. The General Court held, (and I presume this court, consisting nearly of the same judges, have done the same,) that the passing the act authorizing a free and open trade for all persons, at all times, and at all places, with all Indians whatsoever, did repeal the acts of 1679 and 1682. I concur most heartily in that opinion; referring the commencement of that act to 1691 instead of 1705, for the reasons mentioned. Consequently I draw this conclusion, that all Americans Indians are prima facie free; and that where the fact of their nativity and descent, in a maternal line, is satisfactorily established, the burthen of proof there after lies upon the party claiming to hold them as slaves. To effect which, according to my opinion, he must prove the locus classicus of the party claiming to be a slave, to have been brought into Virginia, and made a slave between the passage of the act of 1679, and its repeal in 1691.
All white persons are and ever have been free in this country. If one evidently a white, be notwithstanding claimed as a slave, the proof lies on the party claiming to make the other his slave.
Though I profess not an intimate acquaintance with the natural history of the human species, I shall add a few words on the subject as connected with the preceding.
Nature has stamped upon the African and his descendants two characteristic marks; besides the difference of complexion, which often remain visible long after the characteristic distinction of color either disappears or becomes doubtful; a flat nose and a woolly head of hair. The latter of these characteristics disappears at least of all and so strong an ingredient in the African constitution is this latter character, that it predominates uniformly where the party is in equal degree descended from parents of different complexions, whether white or Indian; giving to the jet black lank hair of the Indian a degree of flexure, which never fails to betray that the party distinguished by
1. Wats. 123. Jeakins vs. Tom . 1. Wats. 239. Coleman vs. Dick & Pat . 2. The attestation of these acts was lost and from memory. Since delivering the above opinion, I have seen another copy of Purvis's collection of the Laws , to which is subjoined a continuation of the acts of Assembly, in manuscript, for two succeeding sessions, but not as far down as the act of 1691. The acts of each of those sessions are attested by the Clerk of the Assembly; which may probably be the case with those to which I have before alluded.
it, cannot trace his lineage purely from the race of native Americans. Its operation is still more powerful where the mixture happens between persons descended equally from European and African parents. So pointed is this distinction between the natives of Africa and the aborigines of America, that a man might as easily mistake the glossy, jetty clothing of an American bear for the wool of a black sheep, as the hair of an American Indian for that of an African, or the descendant of an African. Upon these distinctions as connected with our laws, the burthen of proof depends. Upon these distinctions not infrequently does the evidence given upon trials of such questions depend; as in the present case, where the witnesses concur in assigning to the hair of Hannah , the daughter of Butterwood Nan , the long, straight black hair of the native aborigines of this country. That such evidence is both admissible and proper, I cannot doubt. That it may at sometimes be necessary to a judge to decide upon his own view, I think the following case will evince.
Suppose three persons, a black or mulatto man or woman with a flat nose and woolly head; a copper colored person with long jetty black, straight hair; and one with a fair complexion, brown hair, not woolly nor inclining thereto, with a prominent Roman nose, were brought together before a judge upon a writ of Habeas Corpus , on the ground of false imprisonment and detention in slavery; that the only evidence which the person detaining them in his custody could produce was an authenticated bill of sale from another person, and that the parties themselves were unable to produce any evidence concerning themselves, whence they came, &c. &c. How must a judge act in such a case? I answer he must judge from his own view. He must discharge the white person and the Indian out of custody, taking surety, if the circumstances of the case should appear to authorize it, that they should not depart the state within a reasonable time, that the holder may have an opportunity of ascertaining and proving them to be lineally descended in the maternal line from a female African slave; and he must re-deliver the black or mulatto person, with the flat nose and woolly hair to the person claiming to hold him or her as a slave, unless the black person or mulatto could procure some person to be bound for him, to produce proof of his descent, in the maternal line, from a free female ancestor. But if no such caution should be required on either side, but the whole case be left with the judge, he must deliver the former out of custody, and permit the latter to remain in slavery, until he could produce proofs of his right to freedom. This case shows my interpretation how far the onus probandi may be shifted from one party to the other; and is, I trust, a sufficient comment upon the case to show that I do not concur with the chancellor in his reasoning on the operation of the first clause of the Bill of Rights, which was notoriously framed with a cautious eye to this subject, and was meant to embrace the case of free citizens, or aliens only; and not by a side wind to overturn the rights of property, and give freedom to those very people whom we have been compelled from imperious circumstances to retain, generally, in the same state of bondage that they were in at the revolution, in which they had no concern, agency or interest. But notwithstanding this difference of opinion from the chancellor, I heartily concur with him in pronouncing the appellants absolutely free ; and am therefore of opinion that the decree be affirmed.
(Judge Roan's opinion in our next.)
This court, not approving of the chancellor's principles and reasoning in his decree made in this cause, except so far as the same relates to white persons and native American Indians, but entirely disapproving thereof, so far as the same relates to native Africans and their descendants, who have been and are now held as slaves by the citizens of this state, and discovering no other error in the said decree, affirms the same.
5th, Feb. 1807.
To Subscribers.
There is in the world such a thing as
A DEAD LIFT.
The Editor of this paper will, in a month, have to encounter something of this nature.—About that time he has engaged to pay a considerable sum of money.
To men of honor and punctuality, (in arrear) the bare hint will suffice. On the other assortment, men destitute of moral feeling, and self-respect, (if such there be) not a volume as big as the Bible, can be hoped to have any beneficial influence.—The result of this application will furnish a criterion.
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5th, Feb. 1807.
Virginia.
At a Court of Quarterly Sessions, continued and held for Campbell County, on Tuesday the 11th day of November, 1806.
John Lynch, sen. Com't. AGAINST Gartham Clemons Esq. kiel Clemons & Christopher Fletcher, Def's
THE defendants not appearing and it appearing to the satisfaction of the Court that they are not inhabitants of this country—It is ordered and decreed that they do appear here on the second Monday in February next, and answer the complaint in said bill, and that a copy of this order be forthwith inserted in some one of the Virginia gazettes for a month successively, and passed up at the front door of the said Court-house for two several court days.
A Copy—Teste.
JOHN ALEXANDER, D. C. C. Q.
Mrs. ELIZABETH POPE—You will please to take notice, that on Saturday, the 7th of March next, I will proceed to take the affidavit of Geo. Gabel, at the counting house of Higinbotham, Browne, & Co. in Lynchburg, between the rising and setting of the sun, and to continue there from day to day, until the same be finished, if not completed on that day—also the affidavit of Nancy Zeabry on Tuesday the 10th March next at the house of Robt. Zeabry in Albemarle city, to begin after the rising of the sun, and if not finished before the setting of the sun, then to continue from day to day until the same be finished—also the affidavits of Sally Brown, Hester Ralls, Edw. Taylor, Micajah Goodwin, Elizabeth Goodwin, and John Wood & his wife, at the house of John & Richard Ellis in Amherst county, on Friday the 14th of March next, to begin after the rising of the sun of that day, and to continue from day to day, if not sooner finished—all which affidavits I will offer as evidence on the trial of the injunction in which I am complainant and you are defendants in Amherst county. Your's
CALEB KALEB.
Jan. 29. 1807.
Friend Thomas Barnett.
As thy residence is in the State of North-Carolina, & have no known agent in this State, be pleased to take notice that I shall at the times and places hereinafter mentioned, take the depositions of the following persons, to be read in evidence in the suit then pending against me as surviving Obligor of Samuel and William Davis in the District Court held at Franklin Court House, to wit:—The deposition of Elijah Johnson, at his own house in the county of Louis, on the 13th day of the 3rd month (March) and in case it should not be taken on that day will be taken on the next.—The deposition of Abraham Darnell, at his own house in the county of Orange on the 16th day of the same month, & in case it should not be taken on that day will be taken on the next.—The deposition of Byron Ballard at the house of Walter Oy in Bedford county, on the 24th day of the same month and in case it should not be taken on that day, will be taken on the next.—The deposition of Micajah Goodwin at his own house in the county of Amherst, on the 27th day of the same month, and in case it should not be taken on that day, will be taken on the next.—The deposition of John Bryant at his own house in the county of Washington, on the 6th day of the 4th month (April) and in case it should not be taken on that day, will be taken on the next—at which times and places thou may'st attend if thou pleasest.
WM. DAVIS.
and Month, 9th, 1807.
Notice.
ALL persons indebted to the Estate of WILSON DAVENPORT, late of Lynchburg, are requested to make immediate payment to the subscriber, as the situation of the estate will not admit of indulgence.—And those to whom the estate is indebted are requested to bring in their accounts properly authenticated, that provision may be made to discharge the same.
WM. PRESLEY CLAIBORNE, Ex'r.
10th Feb. 1807.