The prisoner stated that "Col. Burr, with the support of a powerful association extending from New York to New Orleans, was levying an armed body of 7,000 men from the state of New York and the western states and territories, with a view to carry an expedition to the Mexican territories."

That the association, whatever may be its purpose, is not treason, has been already stated. That levying an army may or may not be treason, and that this depends on the intention with which it is levied, and on the point to which the parties have advanced, has been also stated. The mere enlisting of men, without assembling them, is not levying war. The question, then, is, whether this evidence proves Col. Burr to have advanced so far in levying an army as actually to have assembled them.

It is argued that since it cannot be necessary that the whole 7,000 men should have assembled, their commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime.

This position is correct, with some qualification. It cannot be necessary that the whole army should assemble, and that the various parts which are to compose it should have combined. But it is necessary that there should be an actual assemblage, and, therefore, the evidence should make the fact unequivocal.

The traveling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance.

The meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage.

men."

The particular words used by Mr. Swartwout are, that Col. Burr "was levying an armed body of 7,000 *If the term levying in this place, *135 imports that they were assembled, then such fact would amount, if the intention be against the United States, to levying war. If it barely imports that he was enlisting or engaging them in his service, the fact would not amount to levying war. It is thought sufficiently apparent that the latter is the sense in which the term was used. The fact alluded to, if taken in the former sense, is of a nature so to force itself upon the public view, that if the army had then actually assembled, either together or in detachments, some evidence of such assembling would have been laid before the court.

The words used by the prisoner in reference to seizing at New Orleans, and borrowing perhaps by force from the bank, though indicating a design to rob, and consequently importing a high offense, do not designate the specific crime of levying war against the United States.

It is, therefore, the opinion of a majority of the court, that in the case of Samuel Swartwout there is not sufficient evidence of his levying war against the United States to justify his commitment on the charge of treason.

Against Erick Bollman there is still less testimony. Nothing has been said by him to support the charge

that the enterprise in which he was engaged had any other object than was stated in the letter of Col. Burr. Against him, therefore, there is no evidence to support a charge of treason.

That both of the prisoners were engaged in a most culpable enterprise against the dominions of a power at peace with the United States, those who admit the affidavit of General Wilkinson cannot doubt. But that no part of this crime was committed in the District of Columbia is apparent. It is, therefore, the unanimous opinion of the court that they cannot be tried in this district.

*The law read on the part of the prosecu

*136 tion is understood to apply only to offenses committed on the high seas, or in any river, haven, basin or bay, not within the jurisdiction of any particular state. In those cases there is no court which has particular cognizance of the crime, and, therefore, the place in which the criminal shall be apprehended, or, if he be apprehended where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offense was commited.

But in this case, a tribunal for the trial of the offense, wherever it may have been committed, had been provided by Congress; and at the place where the prisoners were seized by the authority of the commander in chief, there existed such a tribunal. It would, too, be extremely dangerous to say, that because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be

given by law a right to try the person so seized in any place which the general might select, and to which he might direct them to be carried.

The act of Congress, which the prisoners are supposed to have violated, describes as offenders those who begin, or set on foot, or provide, or prepare, the means for any military expedition or enterprise to be carried on from thence against the dominions of a foreign prince or state with whom the United States are at peace.

There is a want of precision in the description of the offense which might produce some difficulty in deciding what cases would come within it. But several other questions arise, which a court consisting of four judges finds itself unable to decide, and, therefore, as the crime with which the prisoners stand charged has not been committed, the court can only direct them to be discharged. This is done with the less reluctance because the discharge does not acquit them from the offense which there is probable cause for supposing they have committed, and if those whose duty it is to protect the nation, by prosecuting offend

ers against the laws, shall suppose those

*137 who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony, and when able to say at what place the offense has been committed, institute fresh proceedings against them.

United States v. Aaron Burr.

NOTE.

AFTER his duel with Hamilton, discredited with his own political party and with the better element of the northern and eastern states, Aaron Burr, in the years 1805 and 1806, dreamed a dream as fantastic as that of any Elizabethan adventurer, to win for himself the crown of Mexico, and, adding to it the vast territories beyond the Mississippi, and perhaps New Orleans, and some part of the southern territory of the United States, to found a western empire. The exact limits of that scheme, and the means to be used for carrying it out, will, in all probability, never be known,-probably Burr himself had planned but vaguely. What he did was this: He travelled among and popularized himself with the communities along the Ohio and Mississippi,-communities that thought less harshly of the death of Hamilton and were but loosely bound to the federal union; he consorted with malcontents like Commodore Truxton and General Eaton, who had grievances against the government; he intrigued, or tried to intrigue, with General Wilkinson, then ranking officer of the United States army, in command at New Orleans, for the support of the army. Finally, in the fall of 1806 he inspired a small gathering of men, who bore arms, on Blennerhassett's Island in the Ohio, who finally started down the Ohio in boats, an apparently peaceful vanguard for a settlement beyond the Mississippi preparatory to a descent on Mexico or on New Orleans. Just what they meant to do is not clear. But the collapse of Burr's house of cards was brought on by a sudden access of virtue that bore every appearance of cowardly treachery on the part of General Wilkinson. Wilkinson communicated to President Jefferson, with translations, certain cipher messages which Burr had sent him, which set out Burr's plan to move down the Mississippi in force and evidently refer to an expediiton into