more clearly the particular operation they have on my own judgment.

The fact to be established is, that in pursuance of these designs previously entertained, men have been actually assembled for the purpose of making war against the United States; and on the showing of probable cause that this fact has been committed, depends the issue of the present inquiry.

The first piece of testimony relied on to render this fact probable, is the declaration of Mr. Swartwout, that "colonel Burr 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 against the Mexican provinces." The term "levying" has been said, according to the explanation of the lexicons, to mean the embodying of troops, and therefore to prove what is required. Although I do not suppose that Mr. Swartwout had consulted a dictionary, I have looked into Johnson for the term, and find its first signification to be "to raise," its second "to bring together." In common parlance, it may signify the one or the other. But its sense is certainly decided by the fact. If when Mr. Swartwout left colonel Burr, which must be supposed to have been in July, he was actually embodying men from New-York to the western states, what could veil his troops from human sight? An invisible army is not the instrument of war, and had these troops been visible, some testimony relative to them could have been adduced. I take the real sense then in which this term was used to be, that colonel Burr was raising, or in other words engaging or enlisting men through the country described, for the enterprize he meditated. The utmost point to which this testimony can be extended is, that it denotes a future embodying of men, which is more particularly mentioned in the letter itself, and that it affords probable cause to believe that the troops did actually embody at the period designated for their assembling, which is sufficient to induce the justice to whom the application is made to commit for trial.

I shall readily avow my opinion, that the strength of the presumption arising from this testimony ought to depend greatly on the time at which the application is made. If soon after the period at which the troops were to assemble, when full time had not elapsed to ascertain the fact, these circumstances had been urged as the ground for a commitment on the charge of treason, I should have thought them intitled to great consideration. I will not deny, that in the cases of Bollman and Swartwout, I was not perfectly satisfied that they did not warrant an inquiry into the fact. But I think every person must admit that the weight of these circumstances daily diminishes. Suspicion may deserve great attention, when the

means of ascertaining its real grounds are not yet possessed; but when those means are or may have been acquired, if facts to support suspicion be not shown, every person, I think, must admit, that the ministers of justice at least ought not officially to entertain it. This, I think, must be conceded by all; but whether it be conceded by others or not, it is the dictate of my own judgment, and in the performance of my duty I can know no other guide.

The fact to be proved in this case is an act of public notoriety. It must exist in the view of the world, or it cannot exist at all. The assembling of forces to levy war is a visible transaction, and numbers must witness it. It is therefore capable of proof; and when time to collect this proof has been given, it ought to be adduced, or suspicion becomes ground too weak to stand upon.

Several months have elapsed, since this fact did occur, if it ever occurred. More than five weeks have elapsed, since the opinion of the supreme court has declared the necessity of proving the fact, if it exists. Why is it not proved?

To the executive government is intrusted the important power of prosecuting those, whose crimes may disturb the public repose, or endanger its safety. It would be easy, in much less time than has intervened since colonel Burr has been alleged to have assembled his troops, to procure affidavits establishing the fact. If, in November or December last, a body of troops had been assembled on the Ohio, it is impossible to suppose that affidavits establishing the fact could not have been obtained by the last of March. I ought not to believe that there has been any remissness on the part of those who prosecute, on this important and interesting subject; and consequently, when at this late period no evidence, that troops have been actually embodied, is given, I must say, that the suspicion, which in the first instance might have been created, ought not to be continued, unless this want of proof can be in some manner accounted for.

It is stated by the attorney for the United States, that, as affidavits can only be voluntary, the difficulty of obtaining them accounts for the absence of proof.

I cannot admit this position. On the evidence furnished by this very transaction of the attachment felt by our western for their eastern brethren, we justly felicitate ourselves. How inconsistent with this fact is the idea, that no man could be found who would voluntarily depose, that a body of troops had actually assembled, whose object must be understood to be hostile to the union, and whose object was detested and defeated by the very people who could give the requisite information!

I cannot doubt that means to obtain information have been taken on the part of the prosecution; if it existed, I cannot doubt the practicability of obtaining it; and its nonproduction, at this late hour, does not, in my opinion, leave me at liberty to give to those suspicions which grow out of other circumstances, that weight to which at an earlier day they might have been entitled.

I shall not therefore insert in the commitment the charge of high treason. I repeat, that this is the less important, because it detracts nothing from the right of the attorney to prefer an indictment for high treason, should he be furnished with the necessary testimony.

The chief justice having delivered his opinion, observed, that, as colonel Burr would be put on his trial for carrying on a military expedition against a nation with whom the United States were at peace, his case was of course bailable.

Mr. Wickham wished to say something as to the sum in which colonel Burr should be recognised to appear.

CHIEF JUSTICE.-I have thought a good deal on the subject, but have formed no very deliberate opinion. Bail ought certainly to be required in a sum sufficiently serious to insure the appearance of the party, but not so large as to amount to oppression. It has occurred to me, that, under all the circumstances of the case, ten thousand dollars would be about right, and would avoid the two extremes.

Mr. HAY. I have no doubt of Mr. Burr's ability to procure bail for any sum which might be exacted, even without asking for it. I do not think ten thousand dollars adequate; nor would I ask a larger sum if I did not think it could be obtained without subjecting colonel Burr to any kind of inconvenience. From the facility with which bail was offered a few days ago, I have discovered a disposition in certain gentlemen of this place to relieve colonel Burr from the humiliation of an imprisonment.

Mr. WICKHAM.-I should suppose, sir, that five or six thousand dollars would be sufficient. It should be recollected, that colonel Burr is to give bail to answer the charge of a misdemeanor only. He is here among strangers. Perhaps, in no part of the United States, has colonel Burr fewer acquaintances than in Richmond. And however easy it might be for him to procure bail among his friends or connexions, I am very apprehensive he will not be able to obtain it here for so

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large a sum as ten thousand dollars. With respect to his ability to procure bail for any amount, as stated by Mr. Hay, I do expect that that observation, like some others of that tleman, is not well warranted. Upon this point I am unable to express any decided opinion, as it is a subject with which I am personally unacquainted. But as to the spirit, which, it is insinuated by Mr. Hay, has been shown by certain gentlemen to relieve colonel Burr, I am enabled explicitly to state the opinions of others, of a very different nature. It is true that two gentlemen stepped forward a few days ago, and relieved colonel Burr from the horrors of a dungeon. Their sole object was to assist a gentleman in distress, who had been dragged here by a military force more than a thousand miles. Gentlemen might be willing to be bound for two days, who would reluctantly engage for a longer time. Besides, I have heard several gentleman of great respectability, who did not doubt but colonel Burr would keep his recognisance, express an unwillingness to appear as bail for him, lest it might be supposed they were enemies to their country. I hope this sentiment is incorrect; but it certainly will have its influence. I doubt very much whether he can procure bail, considering his remote situation from his friends, and the apprehensions just mentioned.

Mr. HAY.-I did state, sir, my belief to be, that colonel Burr could find bail for any sum which might be demanded. Mr. Wickham has been pleased to say, that this observation, like some others of mine, is not well warranted. I therefore consider it my duty to state candidly and correctly the reasons which have induced me to form that opinion. In the first place; two gentlemen, having no acquaintance with colonel Burr, on the first day of the examination voluntarily stepped forward, and offered themselves as his bail. This proves the prevailing sentiment among certain gentlemen. This sentiment, we may fairly presume, is not confined to those two gentlemen alone. Secondly; I have been well informed, that colonel Burr could give bail in one hundred thousand dollars. Mr. Wickham has not mentioned names, nor shall I state the source of my information. I do not pretend to say, that this large sum should be required. But when it is considered, that, at the next court, evidence of assembling troops may be adduced, which will constitute the crime of treason, and prevent the appearance of colonel Burr, I do think that a sum sufficlently large should be fixed on to insure that object.

Colonel BURR.-I had no expectation, sir, that any thing would be taken into consideration but the subject immediately

before you. Possibilities have, however, been gone into, which are surely out of the question. With respect to my ability to find bail, I very much doubt it. Only one person ever told me that he was willing to be my bail; and I much question whether it will be in my power to procure bail at this time for any sum. It is true, that, by the courtesy of two gentlemen, I was relieved for twenty-four hours. A man may be willing to be bail for a day, or for two days, who would not engage for a longer time. I am sensible, too, that many will be restrained by the circumstances mentioned by my counsel. Gentlemen are unwilling to expose themselves to animadversion.

As to my pecuniary circumstances, it is pretty well known that government has ordered my property to be seized, and that the order has been executed. My property to the amount of upwards of forty thousand dollars has been lost, and my credit has consequently been much impaired.

CHIEF JUSTICE.-If colonel Burr had been in the circle of his friends, it might have made a difference as to the sum in which bail would be required. It is supposed that, under his present circumstances, bail to the amount of ten thousand dol lars may be given. On a mere question as to bail, in this stage of the business, and from the proofs already adduced, the charge of treason ought not to be considered.

If bail for ten thousand dollars cannot be had, I will hear an application to reduce the sum.

Mr. HAY.-As long as that impression remains, no person will offer till the sum shall be reduced to its minimum.

CHIEF JUSTICE.-I shall certainly not very readily yield to an application to reduce the sum. And should it be made, you shall have notice of it.

The judge adjourned till three o'clock, in order to give the prisoner an opportunity to procure bail. At the hour appointed, he again attended at the capitol, when colonel Burr, with five securities, entered into a recognisance in the sum of ten thousand dollars for his appearance at the next circuit court of the United States for the Virginia district, which will commence on the 22d day of May next.