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.

which were more criminal, colonel Burr meditated an expedi tion 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 circumstanee 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

which, though innocent, neither of them might wish to subject to the casualties of a transportation from the Atlantic to the Mississippi; but when we perceive that colonel Burr has written in cypher, and that general Wilkinson is able to decypher the letter, we must either presume, that the bearer of the letter was also the bearer of its key, or that the key was previously in possession of the person to whom the letter was addressed. In stating particularly the circumstances attending the delivery of this letter, general Wilkinson does not say that it was accompanied by the key, or that he felt any surprise at its being in cypher. For this reason, as well as because there is not much more security in sending a letter in cypher accompanied by its key, than there is in sending a letter not in cypher; I think it more reasonable to suppose that the key was previously in pos session of Wilkinson. If this was the fact, the letter being written in a cypher previously settled between himself and colonel Burr, is, in this stage of the inquiry at least, a circumstance which sufficiently supports the assertion, that the letter was written by colonel Burr.

The enterprize described in this letter is obviously a military enterprize, and must have been intended either against the United States, or against the territories of some other power on the continent, with all of whom the United States were at peace.

The expressions of this letter must be admitted to furnish at least probable cause for believing, that the means for the expedition were provided. In every part of it, we find declarations indicating that he was providing the means for the expedition; and as these means might be provided in secret, I do not think that further testimony ought to be required to satisfy me, that there is probable cause for committing the prisoner on this charge.

Since it will be entirely in the power of the attorney general to prefer an indictment against the prisoner, for any other offence which he shall think himself possessed of testimony to support, it is in fact, immaterial whether the second charge be expressed in the warrant of commitment or not; but as I hold it to be my duty to insert every charge alleged on the part of the United States, in support of which probable cause is shown, and to insert none in support of which probable cause is not shown, I am bound to proceed in the inquiry.

The second charge exhibited againt the prisoner, is high treason against the United States in levying war against

them.

As this is the most atrocious offence which can be committed against the political body, so is it the charge which is most capable of being employed as the instrument of those malignant

and vindictive passions which may rage in the bosoms of contending parties struggling for power. It is that, of which the people of America have been most jealous, and therefore, while other crimes are unnoticed, they have refused to trust the national legislature with the definition of this, but have themselves declared in their constitution that "it shall consist only in levying war against the United States, or in adhering to their enemies giving them aid and comfort." This high crime consists of overt acts which must be proved by two wit nesses or by the confession of the party in open court.

Under the control of this constitutional regulation, I am to inquire whether the testimony laid before me furnishes probable cause in support of this charge. The charge is, that the fact itself has been committed, 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 general 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 revolutionizing 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 is an offence entirely distinct from the actual commission of that crime. War can only be levied by the employment of actual force. Troops must be embodied, men must be assembled in order to levy war. If colonel Burr had been apprehended on making these communications to general Eaton, could it have been alleged that he had gone further than to meditate the crime? Could it have been said that he had actually collected forces and had actually levied war? Most certainly it could not. The crime really completed was a conspiracy to commit treason, not an actual commission of treason.

If these communications were not treason 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 be not proved.

The next testimony is the deposition of general Wilkinson, which consists of the letter already noticed, and of the communications 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 connexion with Eaton's deposition, rather an expedition against the territories of the United States. By

that decision I am bound, whether I concurred in it or not. But I did concur in it. On this point the court was unanimous.

It is, however, urged that the declarations of Swartwout may be connected with the letter and used against colonel Burr. Although the confession of one man cannot criminate another, yet I am inclined to think that, on a mere inquiry in, to probable cause, the declaration of Swartwout made on this particular occasion, may be used against colonel Burr. My reason for thinking so is, that colonel Burr's letter authorizes 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 explanations. However inadmissible therefore, this testimony may be on a trial in chief, I am inclined to admit it on this inquiry.

If it be admitted, what is its amount? Upon this point too, it appears that the supreme court was divided. I therefore hold myself at liberty to pursue my own opinion, which was, that the words "this territory must be revolutionized," did not so clearly apply to a foreign territory as to reject that sense which would make them applicable to a territory of the United States, at least so far as to admit of further inquiry into their meaning. And if a territory of the United States was to be revolutioniz ed, though only as a mean for an expedition against a foreign power, the act would be treason.

This reasoning leads to the conclusion that there is probable cause for the allegation that treasonable designs were entertained by the prisoner so late as July last, when this letter was

written.

It remains to inquire whether there is also probable cause to believe, that these designs have been ripened into the crime itself by actually levying war against the United States.

It has been already observed, that to constitute this crime, troops must be embodied, men must be actually assembled; and these are facts which cannot remain invisible. Treason may be machinated in secret, but it can be perpetrated only in open day and in the eye of the world. Testimony of a fact which in its own nature is so notorious ought to be unequivocal. The testimony now offered has been laid before the supreme court of the United States, and has been determined in the cases of Bollman and Swartwout, not to furnish probable cause for the opinion that war had been actually levied. Whatever might have been the inclination of my own mind in that case, I should feel much difficulty in departing from the decision then made, unless this case could be clearly distinguished from it. I will, however, briefly review the arguments which have been urged, and the facts now before me, in order to show