Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-02-10


IN our judicial character, we are bound,
not only by the nature of orr Office, but by
our solemn oaths, TO administer Justice ac-
cording 10 the laws and constitution Of the
u. States.
Nopoltic3l motivcs,-no reasons of state
can ju-ti!y a disregard Of that solemn in
junction.
In cases OF emergency, it is for the exc
cuuve department of the government to
actupon its own responsibility, and to rely
upon the necessity of the case tor its iusti-
'ication; 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
Sin their persons" "against unreasonable
"selzurcs, "shall not be violated" and
SHAT "ao scarrGnts shall issue but upon
"hro6d6ie cause supported by OATH or af-
G. fimation," this court is rs much bound,
rs any individual magistrate, to obey its
command.
The cause of issuing warrant of arrest,
is CRIME committed by the person chare-
cd. Probable cause, therefore, is a probS-
hility that the crime has been committed
by that person OF this probability, the
court or magistrate. issuing the warrant,
must be satisfied by facts suhhorfed 6y
oath Or GGirmasiov. The facts therefore
sShsrh 7T-rJ'-srated upon oa,a. must induce a
reasonable probability that -, the acts
have been done which constitute the Of
fence charged.
The question whether crime has been
committed is question parity of law, and
partly of fact.
What acts constitute the crime, is n
question of law.
Whether thosc acts have been done, Is
question Of fact.
The crime charged in the present case
is treason against the u. States
The question ofiaw is, what acts consti-
tute that crime?
The Sd sec. Of the Sd art. Of the constitu.
ton ct the y. 5. says, that "treason a.
against the United States, shall conSis; ON
"LY IN leUyiug var against THEN, or, in
'adhcrnS To their enemies, giving them
"oid and comfort
As it is not contendcd that the prisoners
are guilty uhder the second clause of the
definition; if guilty at all, it must be of
treason In ievying Ear against the United
States.
To a man ofp,ain understanding it would
seem to be a matter of little difficulty to
decide what was meant in the constitution
by isUging Of zvar; but the subtIlties of
lawyers and judges, invented in times of
heat and turbulence, have involved the cues
tion in some obscurity
1t Is not my intention, at this time, TO
say how far the expression ought to be IL
mited, nor how far it has been extended.
it Is however TO be hoped that we shall ne
yer IN this country adopt the long list Of
constructive treasons invented in England
by the worst of judges in the worst Of times.
1t IS sufficient to say that the most compre-
hcnsive definition of ievving nsr against
the King, or against the u. S. which Ihave
seen, requires an assemblagc of men, ready
to act, and with an intent to do some t-ea-
sonaofe act, and armed in uarlikc manner,
or slse assembled in such numbers a. to SUI
percede the necessity of arms.
The advocates for the prosecution have
not, as understand, commended for mere
unlimited definition than this
1t is unnecessary, and perhaps would be
improper for me At this time, to say more
on thc question OF fact, than, that in my o.
plhinn, there is no probable cause. support
ca by oath or affirmation, within the mean
ing OF the constitution. to charge either DR..
boliman, or Mr.. Swartwout with treaseu
by levying war against the u. s.
From some of the doctrines urged on the
part OF the prosecution, raust, most ezsDli-
Gritty, declare my dissent.
Can never agree that executive commu-
hlcauons, not on oath or affirmation, can,
uhuer the words of our constitution, be re-
ceiycd as sufficient evidence, in a court of
justice, to charge man with treason, much
less to commit him for trial
1t such doctrines can be supported, there
is no necessity of a Suspension Of the privi-
lege OF the writ of Habeas Corpus, by the
authority of the legislature.
AS 1t is admitted that such cornnuDica-
tons ca cot be evidence on the trial, and as
an opinion on that point, therefore, cannot
be considered rs prejudging any question
winch can occur in subsequent stage of
the prosecution, have thought proper to
be thus explicit on that point.-'To have
SAID leSs, should have deemed derelic
ton Of duty.
Tie substance ofJUDGE DyCKETTS
ohiHion
Mr.. ID. said he should not make manv
observations in addition to what he had re-
marked on granting the district attorneys
NOTION tor warrant TO arrest the pri-
soncrs on the charge oftreason.-Norsh should
he make aHyfrQfcs8ions of scruhuiousof-
fGchmcnt 10 tie rigbt Of hcrsornk Eberit,
on the citizens Of orr country because. if
the whole tenor ofhis conduct thorueh life.
had not cvinced such attachment, he felt as
surcd that no frofsssions on his part could
on fh's HofHI secure the confidence OF the
public.