The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-02-17

is 40 much bound, as any individual magiarate,
to obey ito command.
The caufe of il1uing warrant Of arreft, is a
crime committed by the perion charged. Pro-
babe caufe, therefore, is a probability that the
crime has been committed by that perfon. OF
this probability, the court magitIate, ifIuing
the warrant, NUT be fatis6ed BY fa9J G4pporfel
B, oatb or affirmation. The facts, therefore,
which are ftated upon oath, mutt induce rea-
fopable probability that all the acts have been
done which conititute the offence charged.
The qucftioE whether a crime has been COM
mitted, is a quefion partly OF law, and partly
of fact.
What aels conititute the crime, is queftion
of law.
Whether thofe acts have been done, is quef-
ton of fact.
The crime charged in the prefsnt cafe, is trea-
Jon againRfbe U. S.
The queftion of law is, what acts conititute
that crime?
The Sd fea. of the Sd art. of the contribution
of the u. S. Jays, that treafon againft the u.
States fhall coniif ONLY in ievying quar- a.
sainf THEM. or, in adherring to their ene-
mics, giving them aid and comfort"
AS it is not commended that the prifoners are
guilty under the fecond claufr of the definition
if guilty at all, it NUT be of treafon in Ie1,ying
'svar againft the u. S.
feem to be matter of little difficulty to dec ide
what was meant in the contribution by leyying
ofsvar but the liabilities of lawyers and
judges, invented in times of heat and turbu.
lence, have involved the Queftion in fome obfcu-
rity.
Iii not my intention, at this time, to FAY how
far the expref1ion ought to be limited, nor how
far it has been extended.-It is however to be
hoped that we fhall never in this country adopt
he of nina To- \
gland by the WORT ofjudgesin the WORT of times.
1t is iutticient to fay that the mott comprehen-
hve definition of keaying quar- againf the king,
or againf the United States which have feen,
requires an ahemblage Of men, ready to act, and
with an intent to do fome treajona6le act, and
armed in warlike manner, or elfe attended in
fuch numbers as to fupercede the necefIity of
arms.
The advocates for the profecution have not,
as underftand, commended for more unimit.
ed definition than this.
1t is unneceffary, and perhaps would be i'm
proper for me at this time, to fay more on the
quelton OF fact, than, that in my opinion, there
IS no probable caufe, supported by oath or al
hrmatIon, within the meaning of the confttuti-
on, to charge either DR.. Bollman, or Mr.. Swart-
won't, with treafon by levying war againlt the
u. States.
From mott of the doctrines urged on the part
OF the prolecution, muft, moft explicitly, de-
clare my diffent.
can never agree that executive communica-
tons, not on oath or affirmation, can, under
the words of our contribution, be received as
fufhcient evidence, in court of juftice, to
charge man with treafon, much lefs to COM
nit him for trial.
If fuch doctrines can be Imported, there is
no necefity of fufpenfion of the privilege of
the writ OF habeas corpus, by the authority of
the Legislature.
AS it is admitted that fuch communications
cannot be evidence on the trial, and as an OPT
Mon on that point, therefore, cannot be con.
fidered as prejudging any queftion which car
occur in fubfequent ftage of the profecution,
have thought proper to be thus explicit on
that point. To have faid lefs, fhould have
deemed dereetion of duty.