Norfolk gazette and publick ledger (Norfolk [Va.]), 1807-02-11 00:00:00

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 hundred 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 clamour 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 U. 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 of the government 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 3d sect. of the 3d art. of the constitution of the United States 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 war ; but the subtleties of lawyers and judges, invented in 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 never in this country adopt the long list of constructive treasons invented in England by the worst of 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 I have seen, 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 not, 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, in my opinion, there is no probable cause, supported by oath or affirmation, within the meaning of the constitution, to charge either Dr. Bollman or Mr. Swartwout with treason by levying war against the United States .
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 communications, 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 can not 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 the charge of treason. Nor should he make any professions of scrupulous attachment to the right of personal liberty in the citizens of our country, because, if the whole tenour of his conduct through life, he felt assured, that no professions on his part could on this point secure the confidence of the public .
He concurred in the sentiment, that no reasons of state, no political motives 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 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 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 incontinent 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 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 that he had another object also in view, the invasion of Mexico ; but this does not appear to me 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 colonel 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 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 . Now is there any thing in the testimony said Mr. D. that can positively exclude the interference 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 on 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 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 showing 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 authentic 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 in amity with the United States, yet as they had been arrested on a charge of the highest offence against their country, nothing but their parions could be considered an adequate security to the public.
NEW-YORK, Feb. 4.
LIVINGSTON'S APPEAL.
Mr. Edward Livingston, late mayor of this city, was denounced in open court at New Orleans, by gen. Wilkinson, as an associate of Burr, in a conspiracy for the dismembering the union. Mr. Livingston rose, solemnly denied the truth of the accusation, insisted that the charge should be made on oath, and that the court proceed immediately to his trial. This privilege having been denied, and he having subsequently received additional injury and insult from gen. Wilkinson, Mr. Livingston came forward with an interesting and energetic appeal to the public. The length of this appeal (it being seven columns) prevents us from publishing it at present. It closes with the following remarks and affidavit:—(Com. Ad.)
"I know not what effect this publication will have, it may justify me to any country , which is my first wish of my heart; it may be the means of producing a strict scrutiny into my conduct, I invite, it may draw down the further vengeance of my accuser, which I will never deprecate, whatever may be the event, nothing can shake the consciousness I enjoy of my own innocence on this occasion, nor the determination to continue in my sphere, to resist oppression and to defend the rights of the laws."
BALTIMORE.
A letter was yesterday received from Washington, stating that a treaty had been concluded between the United States and Spain, and that Mr. Munroe is making preparations to return to America.—(American.)
(A letter received in this town from Washington, states some particulars as to the terms of the treaty, particularly that the right of fishery is settled to the satisfaction of the United States.)
The council at Batavia have received a communication arriving there with a cargo of sugar and coffee in return for dollars, should have two dollars for every pound of sugar, those with naval stores, one dollar for every pound of coffee in return.—Ibid.
Dismal Swamp Canal.
For publick sale. A tract of land, precisely at the mouth of the Dismal Swamp Canal, in the Borough of Norfolk.
belonging to the estate of the late Col. John Lock, of sixty acres.
January 12.
Jamaica Rum.
This day landing on Commerce-Street, from the brig Sumner, capt. H. H. Hoxie, 86 puncheons choice Jamaica Rum, and a few bags Pimento.
On hand, Sugar in tierces and bbls. and Coffee in bags, Also,
4 large Anchors from 13 to 1800 weight, 2 ten inch Cables; and a patent Campboose, all of which will be disposed of on liberal terms.
Feb. 9. B. Redmon.
Just received from New-York, and for Sale by LEWIS AUGIER,
Comer of Market-Square, Irish Linen 7-8 and 4-4; Russia do.; brown and white Platillas; Calicoes; Ginghams; Chambray 3-4 and 4-4; Checks 6-4, 5-4, and 3-4; Linen Shawls; Waistcoat Patterns of all kinds; Cambric Dimity; Long Lawn; Fancy Cord; very fine Black Velvet; men's Baver Hats; Straw Bonnets; Plush do.; India Silk; English do.; Cotton, Silk, Buckskin, and Shammy Skin Suspenders; Calimanco; India Handkerchiefs; real Madras do.; white Thread; tambouring Cotton; White Chapel Needles; Metal Buttons; extra long Silk Gloves assorted; silk and cotton Stockings; Lutestring; sattin and figured Ribbons in boxes; Oznaburgs and Ticklenburgs.
Also to be had at New-York prices, Fine and common Blue Cloths; Bear Skin; Half Thicks; red and white Flannels; blue Plains; Bath Coating; Green Baize; Dutch Blankets, &c. Feb. 9. 3*
A Negro WOMAN,
who is a tolerable Cook and Washer, will be sold on reasonable terms or exchanged for a smart active girl of about 13 or 14 years old. Enquire of the printer. Feb. 9. tf
Real 4th proof Hollands GIN,
and Cogniac BRANDY—Landing this day a few pipes of each. C. & F. Whittle.
In Store, Superfine Flour; Coffee 1st quality.
Antigua Rum; Jamaica do.; Sugars; Isle of May Salt; Madeira Wine, fit for use; Cocoa; Molasses 1st quality. Feb. 9. 7
THE PUBLICK LEDGER.
TO SHIEW THE VERY AGE AND BODY OF THE TIMES, HIS FORM AND PRESSURE. WEDNESDAY EVENING, FEB. 11, 1807.
The want of room, with other interesting matter, did not permit us since the arrival of the mail to give the remainder of the debate on the bill from the Senate, for suspending the writ of Habeas Corpus; we have therefore selected the speech of Mr. Randolph, which we think will be read with interest and delight by every one attached to the constitution and laws of the country. We have not room to record the Yeas and Nays in this day's paper, but they shall appear in our next.
We have often been indebted to the Boston Reperatory for many valuable articles of political miscellany; the one which we have selected for our paper of this day will more than reward the trouble which the reader may bestow on its perusal. It will be found to contain many sound arguments, deduced from premises that cannot be questioned. We nevertheless despair to see our countrymen profit by the admonitions contained in our essay, or yet by the fate of other nations. The democrats of the south exhibited the same inconsistency as relates to Buonaparte , as they do in most other things. They wish him to be assassinated, yet they rejoice in his victories over the Prussians, Austrians and Russians. They wish to see his power abridged, yet they are anxious to cripple the only nation that it is probable will oppose him with effect, and the only power that stands between him and us. For our own parts, we dislike assassins; Buonaparte has not done his deeds in the dark, he is open and decided in all his measures. Instead of wishing , if our democrats would consent to place the country in a state that would enable him to resist the scourge of all nations, we should be glad to see him come to the ground, and we should rejoice to see him assassinated, and producing a strict scrutiny into my conduct, I invite, it may draw down the further vengeance of my accuser, which I will never deprecate, whatever may be the event, nothing can shake the consciousness I enjoy of my own innocence on this occasion, nor the determination to continue in my sphere, to resist oppression and to defend the rights of the laws."
This explanation was of no avail—the centinel fired!—the whole load of the musket went through his body, and he almost instantly expired; as the word "Quarrier" was the only syllable he had time allowed him to speak. Vir. Gaz.
There is not, we believe, the least foundation for the paragraphs taken from British prints, intimating a rupture of the negotiations between the United States and Great-Britain. Nat. Int.
Extract of a letter from Capt. Gardner, dated Gibraltar, Dec. 6.
"Yesterday arrived the ship Mary of Salem, from New-York. She was captured the 24th ult. by a Spanish privateer, and anchor under a Spanish battery. The Captain, (Landers) not being willing to lose his property without a struggle, thought proper to put the privateersmen below, after some resistance, in which three of his men being badly wounded, and the captain stabbed in the back, he arrived yesterday, and received every attention from the English ships of war in this harbour. The Spaniards plunder every vessel they fall in with, or carry them into port and condemn them."
COMMUNICATION.
The Marquis de Casa Yrujo, his Catholick Majesty's Envoy Extraordinary and Minister Plenipotentiary, has instituted through the means of the Attorney General of the state, a prosecution against William Duane, Editor of the Aurora, for his slanderous and calumnious publications on the Marquis, endeavouring to make him appear either a traitor to his sovereign, or involved in the guilt of machinations and conspiracies against the United States, or both. We know from a source to be relied on, that the Marquis has requested the Attorney General to permit Duane to give the truth in evidence should a bill be found by the grand jury. Phil. Gaz.
Gazette Marine Memoranda.
ARRIVED. British brig Ceres, Dickenson, 22 days from Bermuda, Logwood, John Hamilton. Sch'r Eliza Ann, Herbert, 10 days from Charleston, Logwood, William Pennock. Sch'r Weymouth, Weymouth, and Packet, Luce, 5 days from New York. Sch'r Rising States, Gilbert, bound to New York, put back.
Sales at Auction.
Tomorrow, at 11 o'clock at my office, will positively be Sold without reserve, for Cash, Box 4-4 Irish LINEN, Coating; 24 pair Rose Blankets; 20 doz. yarn Hose, made double case silver Watches, Holland Gin; 12 puncheons Grenada Rum, 3 bags Coffee. Terms on 90 days for all sums over 200 dolls. 4 casks Colmenar, and 7 qr. casks Mala- 2 hds and 6 qr. casks Lisbon do.; 1 pipe, 2 and 4 qr. casks L. P. Madeira do.; 6 chests Young Hy- Also, A stock on Maxwell's wharf, for 60 day Notes, choice retailing Molasses, Francis Smith, V. M.
TUESDAY the 17th inst. at 12 o'clock, will be Sold on Commerce-Street Wharf, The Sloop ELIZA, Formerly belonging to Talbot Godwin, bur- then 300 bbls. Terms 60 and 120 days cre- dit, and Negotiable endorsed Notes required. Warren Ashley.
TUESDAY the 13th inst. at 11 o'clock, will be Sold for cash, without reserve. Pipes Coniac BRANDY, and Chas Young Hyson TEA. S. Marks, Jun.
WEDNESDAY the 25th inst. on Max- well's Wharf, at 11 o'clock, will positively be Sold, 36 Pipes, 7 hds, and 8 quarter casks London Particular Madeira WINE. Terms—approved Notes at 3, 6, and 9 months for sums exceeding 600 dollars; under and exceeding 300 dollars, 3 and 6 months; under and exceeding 100 dollars, 90 days, and under 100 dollars cash. Francis Smith, V. M. Who offers at Private Sale, 150 Kegs LARD; also for Rent several WARE HOUSES on Maxwell's Wharf. Feb. 11.
TO BE LET, On Friday the 27th inst. at 11 o'clock on the premises, all these several LOTS or pieces of LAND, situate, lying, and being in the borough of Norfolk, formerly the Glebe Land of the Parish of Elizabeth River, but now belonging to the Trustees of the Norfolk Academy—a plan of the Lots will be shown on the day of letting, and the terms of the leases particularly made known; at present it will be sufficient to say, that the leases will be for 21 years renewable forever, or the improvements paid for at the expiration of each term. Feb. 11. tdl
For BERMUDA, To sail in all this month, the Schooner UNION, Captain AIREY, for freight or passage apply to Christopher Fry. Who wants a few hundred barrels on freight for a vessel bound to a windward Island. Feb. 11. 2t
WANTED TO PURCHASE, Three or four Likely Negroes, From 12 to 18 years of age. Apply at the Exchange coffee-house. Feb. 11. 1t*
CORN AFLOAT. 400 Barrels clean sound CORN for Sale afloat, by Fisk & Cullet, Who have in Store, 50 barrels choice prime PORK, 100 ditto No. 1 & 2 BEEF, 25,000 lb. prime Green COFFEE. Feb. 11. tf
Wanted to Purchase, 20 or 30 likely young NEGROES, or which cash will be given. Apply to the subscriber at John Drinane's Tavern, Portsmouth. G. Womack. February 4. 3*
It is a most painful duty we are compelled to perform the painful duty of announcing to the publick the premature death of one of our most valuable citizens, Mr. JOHN M'CREDIE, managing partner at this place, of the House of William Brown & Co. —a gentleman of mild manners, correct conduct, and universally esteemed.
In performing this duty, should we withhold those strong expressions which are justly appropriate to the occasion, it must not be presumed we have the slightest wish to palliate the atrocity of a demi-military assassin! but the presumed perpetrator being actually in custody, and about to answer for the dreadful deed before a jury of his country, we wish to restrain, if possible, the warmth of our feelings, agitated we confess beyond any former occasion.
On Wednesday night last, between the hours of 7 and 8 o'clock, the inhabitants of this city were alarmed by the ringing of the bell at the barracks, and the cries of fire; this was occasioned by a chimney being on fire, at the dwelling house of Mr. John P. Shields, situated midway, about 30 yards from the said barracks of the town guard and the bank.—The alarm was heard by the unfortunate Mr. M'Credie, who instantly left his wife and family at their supper, and hurried away with all speed, to afford every assistance in his power—On descending the hill near to the guard house, with his fire buckets in his hand and in company with a young gentleman, he was suddenly hailed by one of the guard, who was close upon him, with a musket actually presented to his breast—his violent haste, which had put him out of breath, and the surprize and agitation occasioned by his unexpected and unpleasant situation, prevented his making a direct reply; but the young man who accompanied him down the hill, and was then within a step or two of him, immediately answered, "IT IS MR. M'CREDIE!"