The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-04-03
with which aas were committed, but they can
not fupply thofe ads.ifthey be not proved.
The next teftmony is the depoiition of Ce-

~ AePP'y tboiS "StS.tt UC uOt ptONCu.
The next teitimony is the depoiitou of Ce-
neral Wilkinlon, which coniits in the letter al
ready noticed, and Of the communications
made by the bearer Of that letter.
This letter has already seen conI.dered by
the !unreme court of the United States, and
has been dec1red 70 impor', taken by tfe,f or
in connection with Ea:on's 6epoiition, rather
An expedition aganR the territories of Soan
than al the United States By that deciion
am bound whether CONQUERED in it or not
But did concur in It. On this point the court
WAS unanimous.
Eis, however, urged that the declarations Of
Swartwout may DC connected with The letter
and uted againit Col. Burr. Although The con-
FELTON, Of one man canro, crminate another,
yet an inclined 70 THAI. that, on a mere en-
QnirY INTO probable caue, the declarations OF
Sw1rtwout made on this particular location,
may I've uied agairit Col. Burr. Myreafon for
thinking fo is, that Col. Burr's letter aulho-
rites Mr. Swartwout To rDeak i'm his name
lie empowers Mr.. Swariwout to make to
General Wilkiufon verbal communications ex.
p!anatory OF the plans and deGgns of Burr,
which Burr adopts as his own explanations.
However inadmiilible therefore, this tefimony
may be on trial in chief; am inclined to ad :
init it on this enquiry.
Ii 1t be admitted, what is its amount? Up
on this point too, it appears that the iupreme
court was divided. therefore hold myielf at
liberty TO purfue my own opinion, which was,
that the words " this territory mun be revoln-
tonZsd,' did not 70 clearly apply to a foreign
territory as to reject that ienfe which would
make them applicable to a territory of the u
nited States, at leaf 70 far as to admit of fur
Their enquiry into their meaning. Aud if ter
rtory of the United States was 10 be revou.;-
onized, tho only a mean for an expedition
asanlt a foreign power, the ACT would be trea-
fou.
This reafoning leads to the concluion that
there is probable caufe for the allegation that
treafonable deigns were entertained by the phi
toner 10 late as July laf, when this letter was
written.
1t remains to enquire whether there is alfo
probable Cauie to believe, that theft dciicns
have been rpened into the crime itfelf by &C.
tualy levying war aganit the United States.
1t has been already ob(erved, that to coniti-
tute this crime, troops mutt be embodied. men
NUT be actually attended {; and there are
facts which cannot remain Iuviiible. Treafon
may be machiuated in fecret, but it can be per-
petrated only in open day and in the eve of
the world. Tefimony of fact which in lis
own natureis 70 notorious ought TO be unequi.
vocal. The teftimony now offered has been
laid before the fupreme court of the United
States, and has been determined in the cafes of
Bo'Iman and Swartwout, not to furnih pro-
bahle cauie for the opinion that war had been
actually levied. Whatever might have been
the inclination of my own mind in that cafe-I
ihoud feel much difficulty in departing from
the deci!ion then made, unlefs this cafe could be
clearly diftinguihed from it. will, however,
briefly review the arguments which have been
urged, and the faGis now before me, in order to
ihow more clearly the particular operation they
have on my own judgment.
The fact 10 be ehabli!hed is, that in purluance
of thefe defgns previoully entertained, men
have been actually afiembled for the purpofe of
making war againf the United States, and on
the tliewing of probable caufe that this faGt
has been committed, depends the iliue of the
prefent enquiry.
The fira piece of teftmony relied on to rem
der this fact probable, is the declaration of Mr.
Swartwout, that " Col. Burr was Lez,yiue an
armed body Of 1000 men from the rate of
New York and the wettern ftatcs and terrific
ries, with view to carry an expedition agann
the Mexican provinces" The term Le4,y.
ing" has been faid, according to the explana.
tion OF the LeXicons, to mean the embodving
of troops, and therefore prove what is reouir
ed. Although l do not fuppofe that MIR.
Swartwout had confulted Dictionary, | have
looked into Johnfon for tine term, and find it,
frit hgnfcaton TO be &c to raife - its Gecond
" to bring together" In common parIancc.
it may iignify the one or the other.-But its
fenfe is certainly decided by the fact. If when
Mr.. Swartwout left Col. Burr, which nun he
fnpPoied to have been in July, he was actually
embodying men from New-York to the weAern
itates, what could veil his troops from human
hight An invifible army is not the inftrumeut
OF war, and had thefe troops been vfhe, fome
tefimony relative to them could have been adj
duced. take the real fenfe then in which
this term was ufed to be, that Col. Burr was
railing or in other words engaging or euIitng
men through the country defcribed, for the en-.
terprlze he meditated. The utmoh Doi6t
to which this teftimony can be extended is.
that it denotes future embodying of men
which is more particularly mentioned in the
letter itielf, and that it affords probable cauG.
to believe that the troops did actually embodv
at the period designated for their aiTemblinp.
which is fuiiicent to induce the IrRice to
whora the application is made to commit for
trial.
fhllI readily vow my opinion that the
hrength OF the preiumption ariling from this
teltinony ought to depend greatly on the time
at winch thS application is made. IF foon af-
ter the period At which the troops were TO af-
tembIe, when full time had not elapfed 70 AZ.
certain the fact, thefe circumstances bad been
urged as the ground for commitment on the
charge Of treafon, fhond have thought them
entitled TO great confederation. I will NOT
deny that IN the cafes Of Bollman and Swart-
won't, was not perfectly fatisfed that they did