wilmington n c 1v»*dat inarch 34 1807 11th v*ar;j number 533 resentments and without knowing on whom they were to operate than that it should be inflicted under the influen.ee of those passions which the occasion seldom fails to excite and which a flexible definition of the crime or a construction which would render it flexible might bring into operation it is therefore more safe as well as nore consonant to the principles of our constitution that the crime of treason should not be extended by con struction to doubtful cases ; and that crimea not clearly within the constitutional definition should receive such punishment as the tvgie lauire in its wisdom may provide to complete the crime of levying war a ' gainst the u states there must be an actu al assemblage of men for the purpose of exe cuting a treasonable design in the case now before the court a design to ovcrium the go vernment of the united states in new-or leans by force woul'd have been unquestiona bly a delicti which if carried into eiecution would have been treason snd the assemblage f a body of men for the purpo»e of curry ing it into execution would amount to uvy ing of war against the u states but no con spiracy for this object no enlisting of men to effect it would be an actual levying of wnr . • in conformity with the principles now loid down havt-fc-'en the decisions heretofore made by 1 he judges of the united states the opinions given by judge faterson and judge irrdell in cases before hem imply an actual stierhblingtif men though they rather designed to remark 011 the subject to which the force wa to be applied than on the na ture of the force iimlf their opinions how ever contemplate the actual employment of fo ce judge chase on the trial of frietwas more explicit he stated the opinion of the court to be " that if a body of people conspire and medi tate an insurrection to resiit or oppose the execution of any statute of the united states by force they are only guilty of a high mis demeanor ; but if they proceed to carry such intention into execution by force that they are guilty of the treason of levying war ; and the fuanium of the force employed neither lessens nor increases the crime 1 whether by one hundred or one thousand persons is wholly immaterial " the court are of opi nion continued judge chase on that occa sion " that a combination or conspiracy to levy war against the united states is not trea son unless combined with attempt to carry such lombinatinn or conspiracy into executi on ; some actual force or violence must be 11 • sed in pursuance of such design to levy war ; but it is altogether immaterial whether the force ustd in inefficient to effectuate the ob ject ; any force connected with tb intention will constitute the crime of levyintf war the application of these general principles to the particular ease before he court will de pend on he testimony which has been exhi bited aguinvt tli accused the first rfrpifltitiom to be considered is that of general l'.i'on thin gentleman connects in one'suterien ih purport ofnumerntis con versation held with colonel burr throughout the last winter in the course nf tbee conver sations were communicated various criminal projects wbichteem to have been revolving in the mind ol the projector an expedition a gainst mexico seenuto have been the first and most matured pwt of hit plan if indeed it did hot constitute a distinct andjeparatc plan upon the success of which other scheme's still more culpable but not yet well digested might de pend maps and other information prepara tory to its execution and which would rather indicate that it was the immediate-object had been procured and fpir a considerable time in repeated conversations the whole efforts of col burr were directed to prove to the wit ness who was to have held a high command under him the practicability of the enter prise and in explaining to him the means by which it was to be effected this deposition exhibits the various schemes of colonel b.irr and its materiality depends on connecting the prisoners at the bar in such of those schemes as were treasonable for this purpose the affidavit ef general'wilkin son comprehending in it body the substance of a letter from colonel burr his been offer ed and was received by the circuit coaru to the admission of this testimony great and serioui objections have been made it hot been urged that it is a volnntaryv.or ratheran extrajudicial affidavit made btfore a person • not appearing to be a magktate and ron 1 tains the subntanre only of a itlter « f which i the originnf is retained by the person who made the affidavit . 1 the objection thnt tlic aftnla'it inextrajmli 1 eial reivlvet itself into the fju»tion whctlici ' one magistrate mar commit on tn afidavit taken before another magistrate fair if h may an affidavit mad at the foundation of a commitment ceases to be extrajudlcial add the person rho makes it would be aa liable to a prosecution for perjury a if the warrant of commitment had been i«ued by the magis ' trate before whom the affidavit was mad to decide that an affidavit made before one magistrate would no justify commitment by another might iir many case bs produe tive of real inconvenience and doee not ap pear susceptible of abuse if the verity tsf the certificate trt esjabiisned such an flwavrt setros admissible on tbe principle that before the accused it put upon his trial all ther pm eetdingt are cxparte the court therefore over-rule this objection ■ i that which questions tbechtracterof th person who has on this occasion administered the oath is ntxt to be consnleied i the certificate fi-om tl>c office of the de partment of slate has been let med insuffici ent by the counsel for the pritonern brtnu»u the law does not require the appointment of magistrates for the territory cf ntw-ortama to be certified to rhatbffijlc bscausetli cer tificate is in itself informal and because it does hot appear that the m»|;i«tnne liad uktti the oath required by the act of congtfc»s the first of these objections la not sup ported by the law of the case and the se cond may be so readily corrected that the emirt has proceeded to consider the subject ■» if it were corrected retaining however any final decision ' if against ths prisoners until the correction shall be made with regard 10 the thirtl the magistrate must be presumed t hare taken the requisite oaths since he is found acting as a magistrate on the admis sibilit'y of that part of the affidatit which ptir ports to be as near the substance of the leu tertrom co burr to general w ilkin«on aa the latter could interpret it a division of o pinion ha taken place in the coiwt two judges are of opinion that as sucbhe»lim«oy delivered iiithe'preastiicr of tb^iprwoswr on hi trial would he tolalty inadmissible feittier can it be considered as a foundation for a com mitment although in making a commit ment the magistrate docs not decide on the guilt of tbe prisoner yet he docs deemt on the probable cause and a long and painful imprisonment may be the consequence of hia decision this probable caut>e therefore ought to be proved by ttatimony in itself legal and which hough from the nature of the caie it must i e txparie ought in nt«»l other re«pects to be such at a court and jury niiflit hear two judges are of opinion that in this incipient stage of the prosecution an affidavit stating the general purport of a letter may be read particularly where the person in pos session of it ii at too great a distance to ad mit of its bring obtaiujtd and that a commit ment may be found on it under this embarrassment it w'at deemed necessary to look into the affidavit for the purpose of discovering whether if admitted it contain matter which would justify the commitment of the prisoner at the bar on the charge of treason that the letter from col burr to gen vi kimen relates to a military enterprise medi tates by the former hat not been questioned if this enterprise wat against mexico it would amount to a high misdemeanor if a gainst any of the terriloriet of the united states or if in itt progress tbe subversion of the government of the united states in any of their territories was a mean clearly anj necessarily 10 b.e employed if such mean formed a substantive part of tike plan the assemblage of a body of inen to effect it would be levying war against the untted sutcs the letter it in language which furnishes no distinct view of 1 th designt of the writer the co-operation however which is stated to have been secured pofntt strongly to torn expedition against the territories of spain alter making these general state ments the writer becomes rathrr more ex plkit and says " burr's plan of operations it to mow down rapidly from the fallt on the 15th of november with the first 500 or i0c0 men inlight boats now conctructing for that purpose to be at natehei between the 5th and 15th of december there to meet wilkinson ; then to determine whether it will be expedient in the first inttance to scite on or to past ty baton rouge the people of the country to which we are going are prepared to receive us their agents now with uurr say that if we will protect their religion and will not tubjer.11 hem to a for eign power in three weeks all v ill be set there it no txpr.et»ion in these seotedcea which would j«stit a suspicion that any territory of the v the object of the expedition for what putv*m i*e on baton ri>ugc why engage spain against this f pterpri*c if it w designed agitinu tiut u suit - " the people f the country to which we arc going re ptc par«d to receive ua tin language it jp«wji«rly appro priate to a foreign country it will not be ctmtumled lh*t the term vtould be i>n|>|jltc*me to a territory of the united i stale bet other teitn would more tpliy cor.riy the ide m.d liurr term to consider himself ak giving information of which yyilkinwin was not pof»es-c<l w inn it is recol lected that he we be gnvtrn t>r«>f a territory adjoining ih.»t which must have iicrii three ttnid if a trrntoiy vf tha utiitrd state wan tlirratrrrc awd that lie comnion'td t!i army a part of which n lationed in that trnituij lie puibabilily thut tl inx-ilia tioii cc>nimiit)irai'i'i iciftcw t a forti country it n.u-i be admitted gaius trtr>kth " their agent n*w with lliii-nay that if we will p.ijtn tcct their t tlipiob and will not ubject them to a foreign pow er in 3 week all will he tet lud thia it apparently the ian gvafp of a people whp from he contemplated change of their political aitiiation feared vf rtitw^reiiajfoot an4 rprav that rtiey wouw v n*4 tlm bject of a cbrcjon power thai tht mexieant thotild n urtaintheae apprehenaiont wa natural and would readily b believed they were if th repreaentation made of their disposition he correct about to place themtrlve much in tha power of men wto pro feiscd a ftith different from thein and who by making them dependent oo england or the united state would subject them to a foreign pow er that the people ofnew-or ican a a people if rmlly in jrtkcd in tlici oi.tpi'ncy diruia feel tha time apprehension and requira atsutum r on ih me poinu it by no meant to obviou there certainty it not in the latter delivered to general wilkinson *« fa a that let ter is laid before the court one k liable which ha a nece*eary or a natural referrcnce.to an enterprise against any territory of the failed state that the bearer of thif let ter mast be considered a ac quainted with it consent la not to he controverted the letter and hit own declaration evince the fact after ttatuifj himself to hare paaaed through new york and the wentern ttalea and territo iie without inainuaiilir thnt he had performed on hi route any act whatever which n-a connected with the enterprise he ttalee their object to be " to carry an expedition to the mexican province till ttatement mar be ron aidered aa explanatory of the letter of col karr if the ex preuiont of that letter could be thought ambifruou dut there are other declara tion made by mr awattwnut which constitute the difficulty of this cate on n enquiry from gri wilkinson he raid '* this territory would be revo lutionised where the people . were retdy to join them n<l that there wcttld he rr.me iff ing he jupposul rtk»%-qr leant supreme court of the u st^cs fidbujlhv tk*m l»ur the united statts v j \ betlm.m f sawr/wmtf j . ) u6 c»r/w on a commitment for trta sotw • • i ■ . clmef juitict mamsmjll m tht 31 wt*<<m lfcutwr thef»umuing oj/inion tfthe court the prisoners haviuv been brought before this court on a writ of uitbem corpus ami the ustiroony on whjc,h ihe were committed b^ing brsn fu«y miiie*l|»a attentively oneitlered ib^wwrl now i 4*skr 41m aw upon their case .' "*' tbisbeinga mere enquiry tfhicb without wccioing upon guilt precede the institution fa prosecution the question to be determi eij is whether the accused shall be dischar ged or held to trial and if the latter in what place they are to be tried and whether they shall be confined or admitted tq^ail " if ays a very leaf ned anil accurate commenta tor " uporn this enquiry it manifestly appears that np such crime ha baen committed or that th suspicion entertained of the prisoner was wholly groundless in suchfeases only it t».lav i'q'lluujfytodischarge him otherwise ue must either be committed to prison or give bail . . ' ' . the specific charge brought against the pri«ofter is treasolfcin levyinfcwai against the & sutei as there i no crime which can more ex site ahtl astute the passv>n»«f men than trea aon no charge demand wore from the tribti 0*1before which it is made a deliberate and temperate enquiry whether thr enquiry be rtirectej to the fact or to the law none can be more solemn none more important to tfje citizen or the gove rn neat in one cm sore affect the safety of both . to prevent the possibility of these calami ties wkich.rouit from the extension of trea on to offences of minor importance that 4gf«at fundamental law which define and li mits the various departments of oar govern ment h»s given a rule on the subject both to the legislature and the courts of america which neither can be permitted to transcend " treason against the united slates sball r>n#ist only in levying w»r against them or ifi adhering o their enemies giving them id and comfort , . ' to constitute ihst tpi eifio crime for which the prisoners now before the court have been committed war must be actually levied a fvintt the united state however flagitious may be the crime ot conspiring to subvert by lores the government of our country such conspiracy is not treason to conspire to levy war and actually to levy war are di tinct offences the first most be brought in to operation by ths assemblage of men for a purpose treasonable in itself t or the fact of levying war cannot have been committed so fur has this principle been carried that in 9 cat reported by ventris and mentioned in tome modern treaties on criminal law it has been determined that the actual enlistment f men to serve against the government does hot amount to levying war it ii true that in that case the soldiers enlisted were to serve without the realm but they were enlisted within it and if the enlistment for a treason able purpose could amount to levying war then war had been actually levied it js not the intention of the court to say that no individual can be guilty of this crime who hns not appeared in armtagninst his country un the contrary if war be actually levied thatis if a body of men be actually assembled for the purpose of effecting by force a trea sonable pm pose all those who perform any part however minute or however remote from the scene of action and who are actual y le*(pifd in tbc general conspiracy are to be enntidered a trsl'ort but there most be an actual assemblage of men for the treason able purple to constitute a levying of war crimes so atrocious as those which have for their object the subversion by violence nf those is wi and those institutions which have been ordained in order to secure the peace and happiness ofsociety are not to escape pun ishment because they have not ripened into treason thr wisdom of the legislature is onv[>«tent ta provide for the case and the f tamer jf our constitution who not only do ftned n<l limited the orime but with jealous irr.umipection atumpted to protect their li mit/ition by providing that no person shotim h convicted of it unless on the testimony of two witnessciiothe same overt act or on confession in open curt mim have conceived it more sale that p>inishment in such eases thmilil uj tfruakrvd by general laws formed ijnjn dclibrratioii uuiier the inbuencnof do tfte wilmihgton gazette published every'tuesday by aj.lhakd hall at htm dohsrs • y«a gayable in advance or four dohars if not paid within a year