Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-04-03

nets, which must be proved by two witness
es, or by the confession of the party in open
court.
Under The controul Of this constitutional
,,co,llasion, ! am to enquire whether the
TESTIMONY laid before me furnishes probable
cause in support of this charge. The
CHARGE is thot the fact itself has been COM
,n;ted and the testimony to support it
must furnish probable cause for believing
that it has been actually committed; or it
is insufficient for the purpose for which it
IS adduced.
Upon this point too, the testimony of gen.
eral Eaton is first TO be considered. That
part Of his deposition which bears upon
this charge, is the plan disclosed by the
prisoner for seizing upon New-Orleans, and
notwithstanding the western states.
That this plan, If consummated by overt
acts would amount TO treason, no man will
controvert. But it is equally clear that an
intention to commit treason isan offence en-
tirely distinct from the actual commission
OF that crime. War can only be levied by
the employment of actual force. Troops
must he embodied, men must be assembled,
In order TO levy war. If Col. Burr had been
unprecedented ON making these communica-
lions to general Eaton, could it have been
alledged that he had gone farther than to
mediate the crime? Could it have been
said that he had actually collected forces,
and had actually levied war ?--Most GER
tainIy il could not The crime really COM
pleted was a conspiracy to commit trea-
son,--not an actual commission of treason
If these communications were not trea-
son at the instant they were made, no lapse
of time can make them so. They are not
in themselves acts. They may serve to
explain the intention with which acts were
committed but they cannot supply those
acts, If they he not proved.
The next testimony is the deposition of
general Wilkinson, which consists of the
letter already noticed, and of the commu-
nications made by the bearer of that letter.
This letter has already been considered
by the supreme court of the United States,
and has been declared to import, taken by
itself, or in connection with Eaton's depo-
sition, rather an expedition against the ter
ritories of Spain than of the United States.
BY that decision / am bound, whether
concurred in it or not. But l did concur
in it. On this point the court was unani-
meas.
It is, however, urged that the declarati-
ons of Swartwout may be connected with
the letter, and used against Col. Burr.
Although the confession of one man cam
not criminate another, yet am inclined to
think III Z, on a mere enquiry into pro-
bable cause, the declarations ofSwartwout,
made on this particular occasion, NAV be
used against Col. Burr. My reason for
thinking so is that Col. Burr's letter autho-
rises Mr.. Swartwout to speak in his name.
He empowers Mr.. Swartwout to make to
general Wilkinson verbal communications
explanatory of the plans and designs OF
Burr, which Burr adopts AS his own expla-
nations. However inadmissible, therefore,
this testimony may be on 4 trial in chief,
am inclined to admit it on this enquiry.
IL il be admitted, what is its amount
Upon this point too, it appears that the
supreme court was divided / therefore
hold myseif at liberty to pursue myown Opt
Mon, which was that the words " this ter
ritoIy must be revolutionized," did not so
clearly apply to foreign territory, as to
reject that sense which would make them
applicable to territory of the United
States at least so far As to admit of far
Their enquiry into their meaning: and, if
a territory of the United States was to be
revolutionized, though only as mean for
an expedition against foreign power, the
act would be treason.
This reasoning leads to the conclusion
that there is probable cause for the allega-
bIOn lDdC tISdSOnaDlS NtSiSllS were enter
tanned by the prisoner, so late as July last,
when this letter was written.
1t remains to enquire whether there is
also probable cause to believe that these
designs have been ripcned into the crime
itself by actually lew l7g war against the
United States.
it has been already observed that to con.
stitute this crime, troops must be embodi.
ed, men must be actually assembled anC
these are facts which cannot remain invi
sible. Treason may be machinated in Sc.
cret; but it can be perpetrated only il
open day, and in the eye OF the world
Testimony of a fact which in It's own ma
tuTe Is so notorious ought to be uncquiyo
cal. The testimony now offered has beer
laid before the supreme court Of the Unit
ed States, and has been determined, in thu
case of Bollman and Swartwout, not to fur
nish probable cause for the opinion that wa
had been actually levied Whatever nigh
have been the inclination of my own mine
in that case, ] should feel much difficult
indeparting from the decision then made
unless this case could be clearly distinguish
ed from it. Twill, however, briefly reviey
the arguments which have been urged, an
the facts now before me, in order to sheV
more clearly the particular operation the
have on my own judgment
The fact 70 be established is that, in pur
suance of these designs previously enter
tanned, men have been actually assemble
for the purpose Of making war against tn