1013. BURR'S (A.) TRIAL, Evidence required.—
A moment's calculation will show
that the evidence cannot be collected under four
months, probably five, from the moment of deciding
when and where the trial shall be. I
desired Mr. Rodney [Attorney General] expressly
to inform the Chief Justice of this, inofficially.
But Mr. Marshall says: “More than
five weeks have elapsed since the opinion of the
Supreme Court has declared the necessity of
proving the overt acts,-if they exist. Why are
they not proved?” In what terms of decency
can we speak of this? As if an express could
go to Natchez, or the mouth of the Cumberland,
and return in five weeks, to do what has
never taken less than twelve. Again: “If, in
November or December last, a body of troops
had been assembled on the Ohio, it is impossible
to suppose the affidavits establishing the fact
could not have been obtained by the last of
March.” But I ask the judge where they should
have been lodged? At Frankfort? at Cincinnati?
at Nashville? St. Louis? Natchez? New
Orleans? These were the probable places of
apprehension and examination. It was not
known at Washington till the 26th of March
that Burr would escape from the Western tribunals,
be retaken and brought to an Eastern
one; and in five days after (neither five months
nor five weeks, as the judge calculated), he says.
“it is impossible to suppose the affidavits could
not have been obtained”. Where? At Richmond
he certainly meant, or meant only to
throw dust in the eyes of his audience. But all
the principles of law are to be perverted which
would bear on the favorite offenders who endeavor
to overturn this odious Republic. “I
understand”, says the judge, “probable cause of
guilt to be a case made out by proof furnishing
good reason to believe”, &c. Speaking as a lawyer,
he must mean legal proof, i. e., proof on
oath, at least. But this is confounding probability
and proof. We had always before understood
that where there was reasonable ground to believe
guilt, the offender must be put on his trial.
That guilty intentions were probable, the judge
believed. And as to the overt acts, were not
the bundle of letters of information in Mr.
Rodney's hands, the lefters and facts published
in the local newspapers, Burr's flight, and the
universal belief or rumor of his guilt, probable
ground for presuming the facts of enlistment,
military guard, rendezvous, threats of civil war,
or capitulation, so as to put him on trial? Is
there a candid man in the United States who
does not believe some one, if not all, of these
overt acts to have taken place?—
To William B. Giles. Washington ed. v, 67.
Ford ed., ix, 44.
(M.
April. 1807)
