561. ARMY OFFICERS, Prosecutions of.—
Many officers of the army being involved
in the offence of intending a military
enterprise [Burr's] against a nation at peace
with the United States, to remove the whole
without trial, by the paramount authority of the
executive, would be a proceeding of unusual
gravity. Some line must, therefore, be drawn
to separate the more from the less guilty. The
only sound one which occurs to me is between
those who believed the enterprise was with the
approbation of the government, open or secret,
and those who meant to proceed in defiance of
the government. Concealment would be no line
at all, because all concealed it. Applying the
line of defiance to the case of Lieutenant Mead,
it does not appear by any testimony I have seen,
that he meant to proceed in defiance of the government,
but, on the contrary, that he was made
to believe the government approved of the expedition.
If it be objected that he concealed a
part of what had taken place in his communications
to the Secretary of War, yet if a concealment
of the whole would not furnish a proper
line of distinction, still less would the concealment
of a part. This too would be a removal
for prevarication, not for unauthorized enterprise,
and could not be a proper ground for exercising
the extraordinary power of removal
by the President.—
To General Dearborn. Washington ed. v, 60.
Ford ed., ix, 38.
(W.
March. 1807)
