Monette, John W. History of the Discovery and Settlement of the Valley of the Mississippi, by the Three Great European Powers, Spain, France and Great Britain, and the Subsequent Occupation, Settlement, and Extension of Civil Government by the United States, Until the Year 1846, in two volumes, Volume II . New York: Harper and Brothers, Publishers, 1846. [format: book], [genre: history]. Permission: Schingoethe Center for Native American Cultures, Aurora University
Persistent link to this document: http://lincoln.lib.niu.edu/file.php?file=monette2.html

Note from page 476: 554. The following is an extract from the opinion delivered by Judge Fitzhugh, on the commitment of Messrs. Bollman and Swartwout, on a charge of treason, copied in the Mississippi Messenger, March 21st, 1807, and in the papers generally, viz.:

"These inquiries obviously occur: 1st. Is there probable cause to believe that any treason has been committed against the United States, and this supported by oath, &c.? 2d. Are the prisoners implicated in the treason? and, 3d. How, whether as principals, or only guilty of misprision of treason?

"That there is probable cause to believe that treason has been committed by Colonel Burr, the public rumor and universal alarm which seem to have convulsed our country from the extremity to the center; the president's communication to Congress and to the court, afford at least grounds of suspicion, and this is supported by the positive oaths of General Eaton, General Wilkinson, Mr. Donaldson, Mr. Mead, and Mr. Wilson, all going to show the origin, existence, and progress of Burr's treasonable projects and acts. But here the counsel for the prisoners have insisted that none of this mass of evidence criminates Burr, and have contended that the president's communications are inadmissible. It is not generally by detached parts of evidence, but by a well-connected chain of circumstances that we arrive at proof; nor can a crime be made out by the proof of any solitary fact. In a charge of murder it would not be sufficient to show that a blow was given from which death ensued; but it is necessary to prove and disclose a particular state of mind. There must be deliberate resentment, or ill will; there must be malice prepense. So in treason (the case now under consideration), no degree of violence, however atrocious, no enlisting or marching men; no injury, if limited in its object to personal rivalship, or even extensive enough in point of locality to contemplate and threaten the opposition and destruction of the laws, or government of any one of the United States, will amount to treason against the United States. It is the intention alone which fixes the grade of the offense. This intention is only to be collected from circumstances; and though the communications of the president do not of themselves furnish full evidence of Burr's treason against the United States, yet they must be considered entitled to some weight in leading to the conclusion that there is probable cause; but when, in addition to this, it is considered that the most solemn obligation is imposed by the Constitution on the president to make communications of this nature to Congress, and that he has also, in further discharge of his constitutional duties, ordered out the militia, which on ordinary and trivial occasions he is not justifiable in doing, a person must be strangely incredulous who will not admit that there is probable cause of suspicion that a dangerous insurrection or treason exists in our country. A report thus sanctioned by duty and oath, if made to this court by one of its officers, would be respected, and why shall not a communication from the first executive officer of the Union be credited, when he announces to the nation information in the line of his duties? But this general ground of alarm is rendered more specific by the affidavits which have been exhibited to us. If the persons who have been sworn on this occasion are to be believed (and no one has yet questioned their credibility), they prove a scheme laid by Burr to usurp the government of the United States, to sever the Western States from the Union, to establish an empire west of the Alleghany Mountains, of which he, Burr, was to be the sovereign, and New Orleans the emporium, and to invade and revolutionize Mexico. That in prosecution of those projects he wrote a letter to General Wilkinson, the commander-in-chief of the American army, with the avowed object and design of alienating him from his duty, and inviting him to embark in the undertaking, and holding out to him the most flattering and sanguine assurances and prospects of success. Horrid as this attempt was, yet if the information had reached no further, I should have no hesitation in saying that it would have been nothing more than a conspiracy to commit treason, or some other offense. But when Burr assures Wilkinson that he had obtained funds, and actually commenced the enterprise; that detachments from various points and under different pretenses would rendezvous on the Ohio the 1st of November; that his plan was to move down rapidly from the Falls the 15th of November, with first 500 or 1000 men in light boats now constructing for that purpose: when, in addition to this, Wilson and Mead swear that when they left New Orleans, the one the 15th, the other the 19th of December, the strongest apprehension and belief universally prevailed among the inhabitants that Burr and his confederates had prepared an armed force, and were marching to attack and plunder the city; and that they knew that Wilkinson was decidedly of opinion, from the most satisfactory information, that Burr was advancing, and under that belief he was putting the place in a posture of defense: when this coincidence of circumstances and this strength of testimony appear, there can be little doubt of the existence and the extent of Burr's views, and of his having imbodied and enlisted men with views hostile to the government of his country, and that he has done acts which amount to levying war on the United States.

"Burr's treason, then, being established, we are to inquire whether the prisoners were his confederates. They are represented, under oath, to have been the bearers of the duplicates of Burr's letters in cipher to Wilkinson, and to possess Burr's confidence; they use arguments, in addition to those in the letter, to invite Wilkinson to accede to their views; admit that they have corresponded with Burr on the subject since the delivery of the letter; that Swartwout informed Wilkinson that Burr, with a powerful association, extending from New York to New Orleans, was levying an armed body of 7000 men from New York and the Western States and Territories, with a view to carry an expedition against the Mexican provinces, and that 500 men under Colonel Swartwout and Major Tyler were to defend the Alleghany, for whose accommodation light boats had been built and were ready; said that New Orleans would be revolutionized when the people were ready to join them, and that there would be some seizing.

"Here, then, is evidence of a connection with Colonel Burr of a treasonable nature. What is it? The act of Congress defines misprision of treason to be a neglect to disclose the knowledge of a treason. But the prisoners have not only known of the treason, but carried a treasonable letter, knowing its contents; endeavored to further Burr's views and wishes, and to seduce Wilkinson from his duty. The offense exceeds misprision of treason, and as there is no intermediate class of offenses of a treasonable nature between misprision and treason, it must be treason.

"I am, therefore, of opinion, that the prisoners should be committed for treason against the United States, in levying war against them."