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taken place for the breach of it? If he was to be prosecuted for such breach, he wished to know why he was brought to this place? Why not carry him to the place where the breach happened? That more than three months had elapsed since the order of government had issued to seize and bring him to that place; yet it was pretended, that sufficient time had not been allowed to adduce testimony in support of the prosecution. He asked, why the guard who conducted him to that place, avoided every magistrate on the way, unless from a conviction that they were acting without lawful authority? Why had he been debarred the use of pen, ink, and paper, and not even permitted to write to his daughter? That in the state of South Carolina, where he happened to see three men together, he demanded the interposition of the civil authority; that it was from military despotism, from the tyranny of a military escort, that he wished to be delivered, not from an investigation into his conduct, or from the operation of the laws of his country. He concluded, that there were three courses that might be pursued, an acquittal, or a commitment for treason, or for a misdemeanor; that no proof existed in support of either, but what was contained in the affidavits of Eaton and Wilkinson, abounding in crudities and absurdities.

Mr. RODNEY, the attorney general of the United States, then addressed the judge. He observed, that when he considered the numerous and attentive audience, the public anxiety so strongly excited, the character charged, and the crime of which he was accused, he was more than usually embarrassed; that he had never felt more for any person than for the prisoner, who was no less than the late vice president of the United States, esteemed for his transcendent talents, and whom he once considered as his friend, and treated as such in his own house; that he now stood charged with the most heinous crime; that it was incumbent on those who prosecuted, to prove probable cause to believe his guilt, and that the chain of circumstances showed, without doubt, that he was guilty: that, however, he would endeavour to convince him, by his manner of conducting the prosecution, that the government was not influenced by malicious or vindictive passions, to persecute him.

That the gentlemen on the other side had argued as if they were then before a jury upon the principal trial, and demanded such legal evidence as would be sufficient to convict him on such trial: that the law however, required no such plenary testimony in this incipient stage of the proceedings; that to show probable cause to authorise a commitment, ex parte testimony was admissible; and unless it manifestly appeared that he was

innocent, he ought to be committed; whereas before a jury, such testimony would be excluded, and his innocence would be presumed till his guilt appeared; that on the trial the law required two witnesses to an overt act of treason; and that his confession would be unavailing unless made in open cout; that on the present inquiry, two witnesses were not requisite to prove an overt act, and that ex parte evidence of his confession must be admitted; that it was true, that the constitution required two witnesses of an overt act to convict the prisoner; but that the sixth article of the amendments to the constitution, rendered probable cause only necessary to justify the issuing a warrant to take a man into custody, and of course to commit him for trial. That there were two charges against him: one for a crime against the constitution; the other for a violation of the act of congress passed in 1794, to prevent the safety and peace of the United States from being put in jeopardy, by the daring enterprises of unauthorised individuals; on both of which he would make a few remarks. In the first place he contended, that the mystery in which this business was enveloped, afforded just grounds of suspicion. If the settlement of lands merely was intended, why were dark and corruptive messages sent to military commanders? why was a letter in cypher sent to the commander in chief, when he was supposed to be at St. Louis? why, when it was found he was not there, was another sent to Natchitoches, and from thence to New-Orleans? That it was an important fact, that colonel Burr in the preceding year had been throughout that whole country; that it was the practice every day to take the confession of accomplices as evidence against their principals, though made to escape punishment themselves; that here the case was much stronger, for the confessions of Bollman and Swartwout to general Wilkinson were perfectly voluntary-with the design ofengaging him in the criminal projects of colonel Burr: Their disclo sure ought to have the more weight, because they knew the contents of the letters which they delivered, which stated them to be in his confidence; and they declared themselves his partizans; that the affidavit of general Wilkinson, by which these facts are proved, was certainly good as a piece of ex parte testimony in this stage of the business, though inadmissible on the trial; that the declaration of Swartwout, as stated in that affidavit, proves the intention of the prisoner to have been to seize on New-Orleans, and plunder it, as preparatory to his expedition against Mexico; that the supreme court, in the case of Bollman and Swartwout, had adjudged, that if an end cannot be accomplished without treasonable means, the end itself was treasona ble; and of course the project of the prisoner must have been to perpetrate treason. Mr. Rodney further contended, that the VOL. I.

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treasonable intention thus proved by Wilkinson was strongly fortified by the deposition of general Eaton, which was unquestionable evidence in this stage of the prosecution; that there could be no doubt of the truth of the statements of this gallant soldier; this man of true honour and most respectable character, who had rendered such memorable services to his country by traversing the deserts of Lybia, and by the conquest of Derne; that his communications to him were begun in the same cautious manner with those to general Wilkinson; that in both instances, he pretended at first to be in the confidence of the government, but afterwards proceeded by degrees to develop his treasonable plans; that the territory of Orleans, or some other territory belonging to the United States, was to be revolutionized; that there was to be some seizure at New-Orleans; that no doubt remained of the treasonable intention; that the only doubt was, whether there was sufficient proof of force having been actually embodied, and that all the circumstances rendered that fact very probable. Mr. Rodney here expatiated on the evidence: the letter of colonel Burr written in July; his intention to wait till he heard from the military commander at New-Orleans; Swartwout's statement; Eaton's deposition; the activity of colonel Burr in Ohio, Kentucky, Tennessee, and the Mississippi Territory, and his cautious mysterious conduct; and that in this incipient stage of the proceedings, stronger testimony could not be reasonably expected; that the government, however vigilant it had been, had not had sufficient time to obtain it; and that he ought to be put on his trial; that if he should be acquitted by a jury of his country, it would give no man more heartfelt pleasure than himself.

When Mr. Rodney concluded, Mr. HAY observed, that if the judge should be of opinion, that the prisoner ought to be put on his trial, and that he might be admitted to bail, he wished to make some observations on the amount of the sum in which the recognisance should be taken. He cited the 1st vol. of the laws of the United States, p. 144, and 2d vol. p. 275, to show, that it was discretionary with the judge to admit to bail, whether he should be of opinion that he ought to be tried for treason or misdemeanor. The chief justice answered, that he would certainly give him an opportunity to make the observations he desired; and that he intended himself, to deliver his opinion in writing, to prevent any misrepresentations of expressions which might fall from him. As it could not be prepared till the next day, colonel Burr's recognisance was renewed for his appearance at the capitol on the following day at ten o'clock.

WEDNESDAY, 1st April, 1807.-The chief justice delivered the following opinion in the presence of a numerous audience: I am required on the part of the attorney for the United States to commit the accused on two charges:

1st. For setting on foot and providing the means for an expedition against the territories of a nation at peace with the United States.

2d. For committing high treason against the United States. On an application of this kind I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused: but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.

I think this opinion entirely reconcileable with that quoted from judge Blackstone. When that learned and accurate commentator says, that "if upon an inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him, otherwise he must be committed to prison or give bail," I do not understand him as meaning to say that the hand of malignity may grasp any individual against whom its hate may be directed, or whom it may capriciously seize, charge him with some secret crime, and put him on the proof of his innocence.* But I understand that the foundation of the proceeding must be a probable cause to believe there is guilt; which probable cause is only to be done away in the manner stated by Blackstone. The total failure of proof on the part of the accuser would be considered by that writer as being in itself a legal manifestation of the innocence of the accused.

In inquiring therefore into the charges exhibited against Aaron Burr, I hold myself bound to consider how far those charges are supported by probable cause.

The first charge stands upon the testimony of general Eaton and general Wilkinson.

The witness first named proves that among other projects

The chief justice explicitly stated to the reporters, that, in making the above observations, he had no allusion to the conduct of the government in the case before him, but only meant an elucidation of the general doctrine laid down by Blackstone. He was induced, he said, to make these remarks, because it had been suggested to him by a friend, after he had delivered his opinion, that his meaning in the above expressions might possibly be misapprehended.

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which were more criminal, colonel Burr meditated an expedition against the Mexican dominions of Spain. This deposition may be considered as introductory to the affidavit of general Wilkinson, and as explanatory of the objects of any military preparations which may have been made.

I proceed then to that affidavit.

To make the testimony of general Wilkinson bear on colonel Burr, it is necessary to consider as genuine the letter stated by the former to be, as nearly as he can make it, an interpretation of one received in cypher from the latter. Exclude this letter, and nothing remains in the testimony, which can in the most remote degree affect colonel Burr. That there are to the admissibility of this part of the affidavit great and obvious objections, need not be stated to those who know with how much caution proceedings in criminal cases ought to be instituted, and who know that the highest tribunal of the United States has been divided on them. When this question came before the supreme court, I felt the full force of these objections, although I did not yield to them. On weighing in my own mind the reason for and against acting, in this stage of the business, on that part of the affidavit, those in favour of doing so appeared to me to preponderate, and, as this opinion was not overruled, I hold myself still 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 I thought, and I still think, that, upon a mere question whether the accused shall be brought to trial or not, upon an inquiry not into guilt but into the probable cause, the omission of a circumstance which is indeed important, but which does not disprove the positive allegations of an affidavit, ought not to induce its rejection or its absolute disbelief, when the maker of the affidavit is at too great a distance to repair the fault. I could not in this stage of the prosecution absolutely discredit the affidavit, because the material facts alleged may very well be within the knowledge of the witness, although he has failed to state explicitly all the means by which this knowledge is obtained.

Thus, general Wilkinson states that this letter was received from colonel Burr, but does not say that it was in his hand writing, nor does he state the evidence which supports this affirmation. But, in addition to the circumstance that the positive assertion of the fact ought not perhaps, in this stage of the inquiry, to be disregarded, the nature of the case furnishes that evidence.

The letter was in cypher. General Wilkinson it is true, does not say that a cypher had been previously settled between colonel Burr and himself, in which they might correspond on subjects

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