The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-04-03
Iproceed then TO that affidavit.
To make the teitimory of General Wilkinfon

~ mdkc tue teilithOcy OF SencraI w tkinlOn
bear on Col. Burr, it is necefIary to conlider as
genuine the letter lated BY the former to be,
~ nearly - ~ can make il, an Interpretation
ot o"c received IN vpher from The latter. ,Ex-
ciudr tius leiier ;and nothing remains in tte #.
timony. which can in the mot remote deyrSe
afcct Col. Burr. That there are 10 the adj
minibility Of this part of the affidavit great and
obvious objections, need not be fated to thoir,
who know with how much caution proceed
ings in criminal cafes onght to be nltituied, and
who know that the highet tribunal of the u.
States has been divided on them. When this
qusttion came before the fupreme court, I felt
the full force of thefe objections although did
not yield to them. On weighing in my own
mind the reafon for and againit acting, in this
Rage OF the buhnefs, on that part of the aft
davit, thoie in favor of doing 70 appeared TO
me tn preponderate, and, as this opinion was
not overruled, l hold myielf Rill at liberty to
conform to it.
That the original letter, or a true copy of it
accompanied by the cypher, would have been
much more satisfactory, is not to be denied
but thought, and itill think that, upon
mere quetion whether the accuied GiaIl be
brought to trial or not, upon an enquiry not
INTO guilt but into the probable caufe, the omit.
lion OF circumftance which is indeed mpor-
tant, but which does not difprove the poiitive
allegations of an affidavit, ought not to induce
its rejection or its abfolute diibelief, when the
maker of the affidavit is at too great difaace to
repair the fault. I could not in this itage of
the Proircution absolutely dilcredit the affida-
WIT, becauie the material facts alledged may very
well be within the knowledge of the witnefs,
although he has failed to Rate explicitly all the
meanSh by which this knowledge is obtained.
Thus, General Wiiknfon hdtes that this let
ter was received from Col. Burr, but does not
lay that 1t was in his hand writing, nor docs he
tate the evidence which fuPports this affirma-
ton. But, in addition to the circumftan that
The pohtive af1ertion of the fact ought not per-
haps, in this tage ofthe enquiry to be difregard-
ed, the nature Of the cafe furnilfes that evil
dence.
The letter was in cypher. Cen Wilkin(on,
it is true, does not fay that cypher had been
previouily fsttied between Col. Burr, and him
telf, in which they might correfpond on fuhie6ts
which though innocent, neither of them might
with to futject 10 the catualties of trarfporta-
ton from the Atlantic to the MifilIippi but
when we perceive that Col. Barr has written in
CIPHER, and that General Wilkinfon is able to
| decypher the letter, we nun either preiume
that the bearer Of the letter WAS alto the bearer
| Ct its key. or that the key was previoully in
poiti,ion of the perion to whom the letter was
addreiied. In Eating particularly the circum.
.ltances attending the delivery of this letter,
General Wiikinion does not FAY that it was &C
conPanled by the key, or that he felt any fur
prize at its being in cypher. For this reaton,
| As well as becaue there is not much more fe-
CURLY in tending letter in cyphsr accompan-
cd by its key, than there is ia Tending letter
not in cypher think it more reafonabe to
tuppofe that the key was previoully in poacfIi-
on of Wikinion. If this was the fact, the let
ter being written in cypher previouNy fet-
tied between himfelf and Col. Burr, is in thu.
itage OF the enquiry at leaf, circumltance
which efficiently fupportS the aherton that the
letter was written by Col. Burr.
The enterprise difcribsd in this letter is OBJ
viouny military enterprise, and mutt have
been intended either againit the u. S. or agaiaR
the territories of fomc other power on the con-
tInent, with all of whom the United States were
at peace.
The exprefIisns of this letter mutt be admit
ted to furni.h at leaft probable cauie for beiev-
ing, that the means for the contemplated expe-
diton were provided. In every part of it, we
! ind declarations indicating that he was provid-
ing the means for the expedition, and as thefe
means might be provided in fecret, do not
think that further teGimony ought to be re1uir-
cd to iatiSty me, that there is probable cauie for
committing the prifoner on this charge.
Since it will be entirely in the power OF the
Attorney General TO prefer an indictment a.
galnit the prlioner, for any other offence which
NC ihdii tlilk hI'flicit poHcUed or teitimOny to
iuPport, 1T is in fact, mmaterial whether the
iecond charge be exprefIed 10 the warrant of
commitment or not but as I hold it to be my
duty to lniert every charge alledged on the p-rt
! OF the United States, in fupport of which
probable cauie is ihown, and TO infsrt none in
iuPPort OF which probable caufe is not fhown,
am bound to proceed in the enquiry.
| The fecond charge exhibited aganf the nri
toner, IS High Treafon agaipft the United States
in levying war aganlt them.
Asthls is the mott atrocious offence which
can DE committed agant the political bodv.
10 IS 1t the charge which is mott capable Of be-
ing employed as the Initrurhent of thofa ma
lignant and vindittive palTious which NAV rage
IN the Bottoms OF coutending parties hruggl;3g
for power. 1t is that, of which the neonIe of
America have been mott jealous, and therefore.
wh'ie other crimes are unnotlced, they have re.
tnied to truf the national Legislature with The
definition OF this, but have themGelv,s declared
in their contribution that I" it lIiail corGf onlv
IN eVying war again6 the United States. or H.
adherng TO their enemies giving them aid and
comfort" This high crime conCiRs of overt
acts which mutt be proved by two witnefTrs
or bY The coDfeiiion of the party i'm omen court
Under The controuI of this constitutional re-
guation, am to enquire whether the teHimo-
ny laid before me furniihes probable cauf. in
iupPort of this charge. The CHARGE i. tbst
the tact Iiielf has been committed, and the tec
tImODY TO iu0OOrt nun f,-.;n.