Kentucky, and a grand jury in the Mississippi Territory had found him not guilty. Notwithstanding the alarm excited, nothing like an overt act of treason in levying war was proved. No military preparations existed, not a single soldier was enlisted; nay, not even a servant extraordinary has been shown to have attended him; that there was no evidence that Swartwout's communication with Wilkinson was authorised by Burr, or that he faithfully delivered the message, if entrusted with one; that therefore the affidavit of Wilkinson proved nothing: that his being in the western country, and engaged in collecting persons to settle some valuable lands, were the only circumstances which remained to subject him to the slightest shade of suspicion; and these were strangely converted into acts of "levying war;" that the terrible alarm at New-Orleans was imputable to the conduct of general Wilkinson, whose arbitrary and violent proceedings, and magnifying accounts of danger, were calculated to make the people tremble for their personal safety. As to his attempt to escape in South Carolina, Mr. Randolph concluded that any other man would in the same circumstances have endeavoured to escape from military persecution and tyranny; and that the manner in which he was treated, was barbarous, inhuman and oppressive, to the last degree. That, according to the doctrine contended for by the counsel for the United States, a man might be apprehended in the district of Maine, and carried as far as the Tombigbee, illegally, without redress any where between those places, for want of evidence; and when brought to the place appointed for his trial, the court would not try him, but wait for further evidence, if the commitment appeared to be right on the face of it, which would annihilate, altogether, the benefit of the writ of habeas corpus. He concluded, that there was no evidence of an overt act to support the charge of treason, and that it ought to be renounced. As to the other point, the fitting out an expedition against the dominions of the king of Spain, he asked, where it was prepared? in what state? Virginia, Ohio, Kentucky, or the Mississippi Territory? That they had no arms, no ammunition; that they had some boats calculated only to accommodate families removing to form new settlements. He hoped, that if the judge should think that a recognisance ought to be required, it should be in as small a sum as possible.

Colonel BURR rose, he said, not to remedy any omission of his counsel, who had done great justice to the subject. He wished only to state a few facts, and to repel some observations of a personal nature. The present inquiry involved a simple question of treason or misdemeanor. According to the constitution, treason consisted in acts; that an arrest could

only be justified by the suspicions of acts, whereas, in this case, his honour was invited to issue a warrant upon mere conjecture; that alarms existed without cause; that Mr. Wilkinson alarmed the president, and the president alarmed the people of Ohio. He appealed to historical facts. No sooner did he understand that suspicions were entertained in Kentucky of the nature and design of his movements, than he hastened to meet an investigation. The prosecution not being prepared, he was discharged. That he then went to Tennessee. While there he heard that the attorney for the district of Kentucky was preparing another prosecution against him; that he immediately returned to Frankfort, presented himself before the court, and again was honourably discharged; that what happened in the Mississippi Territory was equally well known; that there he was not only acquitted by the grand jury, but they went farther, and censured the conduct of that government; and if there had been really any cause of alarm, it must have been felt by the people of that part of the country; that the manner of his descent down the river, was a fact which put at defiance all rumours about treason or misdemeanor; that the nature of his equipments clearly evinced that his object was purely peaceable and agricultural; that this fact alone ought to overthrow the testimony against him; that his designs were honourable, and would have been useful to the United States. His flight, as it was termed, had been mentioned as evidence of guilt. He asked, at what time did he fly? In Kentucky he invited inquiry, and that inquiry terminated in a firm conviction of his innocence; that the alarms were at first great in the Mississippi Territory, and orders had been issued to seize and destroy the persons and property of himself and party; that he endeavoured to undeceive the people, and convince them that he had no designs hostile to the United States, but that twelve hundred men were in arms for a purpose not yet developed; the people could not be deceived; and he was acquitted, and promised the protection of the government; but the promise could not be performed; the arm of military power could not be resisted; that he knew there were military orders to seize his person and property, and transport him to a distance from that place; that he was assured by the officer of an armed boat, that it was lying in the river ready to receive him on board. Was it his duty to remain there thus situated? That he took the advice of his best friends, pursued the dictates of his own judgment, and abandoned a country where the laws ceased to be the sovereign power; that the charge stated in a hand-bill, that he had forfeited his recognisance, was false; that he had forfeited no recognisance; if he had forfeited any recognisance, he asked, why no proceedings had

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 court; 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 requir ed 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 of engaging him in the criminal projects of colonel Burr: Their disclosure 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 treasonable; 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.