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of the case. While it is recollected, that the publications from New York announced intelligence from that city, that in some case depending there, that a subpoena for some of the heads of departments to attend court as witnesses, had been disobeyed, or not complied with.
It is thought that every reader of.intelligencc and reflection may at once see both the importance and the delicacy of the relation between the executive and judicial departments, in such cases; and that it should be an early object with congress to regulate by law, the steps to be taken for the purpose of obtaining the evidence deposited in the executive department, when in any case it maybe proper, or the course of justice might be impeded or frustrated without its acquisition.
The only other part of the trial of Colonel Burr to be no- . ticed. in this history is, that the indictments being found true billsf.be was arraigned, and tried, on the testimony of many witnesses; who proved a perfect confirmation of the intelligence given by the attorney for the United States in Kentucky to the president, but that Colonel Burr was not present on Blannerhassett's island, the only point within the jurisdiction of the court at which any force was assembled, armed or unarmed, with a. view to any expedition; while there was a failure '- of proof that Colonel Burr was the instigator of the meeting, cfeihat it assembled with the intent of making war on the United; States, or had in fact committed re designed to commit any breach of the peace within the United States; there having been however from thirty 'to forty men, some of them armed, on the island at onetime, and thought to be engaged by Blannerhassett and others. As to the assemblage at the mouth of Cumberland river, or elsewhere, out of the jurisdiction of the court, limited to Virginia, the evidence of it being improper to goto the jury, should not, it was thoughtj influence their opi. nions; and so the law was laid down to them.
On the charge of treason, it was defined in the constitution of the (United States, to'.'consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Vol. 11. G**
&. .>•. -v '!*.£' .:.:-!•. ..*..*: No person shall be convicted of treason unless on the lestl. mony of two witnesses to the same overt act, or on confession in open court." But talking of war, especially of future war, was no overt act of war; that war, in the meaning of the constitution, must be either actual or potential, either of which required force, and that such force must be visible; and in the latter case, where the war was not yet commenced, the force should at least be assembled to some respectable amount, and with the avowed, or other demonstrative evidence of the intent to enter into the war; and that to find any man guilty of the war, he must either be present in the assemblage, or known to be consenting, tested by open acts thereunto. That it was with the jury to decide whether the person charged, was guilty or not guilty. Without offering this exposition of the constitution, as a transcript of that delivered by the court, it is given as a paraphrase only. The jury very soon after receiving the charge, returned from their retirement, with a verdict of "Not guilty on this indictment." .
It was submitted to the prosecutors for the United States, whether they desired the prisoner to be recognised to appear and answer elsewhere; which, after consultation, they declined; and he was discharged; perfectly cured of his passion for revolutionizing the west and creating empire for his own rule: as it is inferred, not only from what he suffered, but from the quietude of his life since: a merited disrespect attends him.vS
In Kentucky, new scenes engage attention. "The Western World" was yet in operation; and public opinion still divided on this question, among others, whether Harry Innis should continue to hold his judgeship, or measures be taken to turn him out? Many were scandalized at his conduct, and thought the country dishonoured by his unmolested retention of his office. He, however, had given proofs of his anti-federalism; which endeared him to Mr. Jefferson, and the party. While it devolved on Humphrey Marshall, labouring under the accusation of being a federalist, to reduce his former resolution of becoming a candidate for the house of representatives to practice; in order, if elected, to try the sense of the country in relation to the judge. Accordingly he declared himself a candidate; and produced almost as much agitation among the immediate adherents of the judge, as the commencement of "The Western World."
To defeat him, was the grand object—and for this purpose, one opposing candidate was to be selected, all others on their side kept back. Mr. Nathaniel Richardson, a very worthy farmer, who had for some years before unsuccessfully essayed the practice of the law, was selected: and seldom had greater efforts been made on any similar occasion, by newspaper publications or otherwise, than those which forthwith ensued. All • the horrors of federalism was now conjured up, and set out in new dresses, or the old: Mr. Marshall, not merely called upon to answer for his own offences, real or imputed, was to be made responsible for such as had been or might be ascribed to others; and that, to Spanish conspirators, French partisans, and Burrites;—among whom might be found the most profligate members of soeiety; and certainly very many worthy citizens, whose prejudices long trained, could the more easily be employed to mislead their judgments.
About eleven hundred votes were given at the election, which terminated in Marshall:s favour by a small majority. This point gained, he thought on further means. The sum of his federalism, was to enable the people to see the foul blotch which filled the federal court, as a necessary inducement to them to unite in an attempt to wipe it out.
Before more is said on this subject, as one occurred prior to the election, and during the canvass, in the midst of which it v was announced, of much more importance, that is next to be mentioned; as it greatly agitated the country. It was the attack made^on the Chesapeake, an armed ship of the United States, by the Leopard, a ship of his Britannic majesty; in which several lives were lost, and other persons wounded, to the number of about twenty in all: this was at sea, off the Virginia Capes. The occasion was briefly this: Four sailors
from on board a British ship, getting to Norfolk, enlisted with an officer of the Chesapeake, and being demanded by a British officer, were not given up, but withheld; application was made to the civil authority of the place for the men, all interference was declined; the case was represented to the president at Washington, he gave no satisfaction; the men were shipped on board the Chesapeake; they were once more demanded, and being refused, the ship was, without suspecting or being prepared for action, fired into, boarded, and the men taken away, without resistance.
The transaction is instantly resented by the people, from one end of the United States to the other, and from the Atlantic to the Lakes and the Mississippi, as fast as the account could travel. In Kentucky great sensation was produced, and the resentful resolutions of the Atlantic, promptly responded from the patriotic citizens of the west.
The president of the United States, no less animated by the aptness of the occurrence to promote his views, than by a due regard to the safety of the country, by proclamation, adapted to popular feeling, excluded the armed vessels of Great Britain from the waters of the United States. And this was certainly right for the time. .
When, however, the British government came to a known, ledge of the outrage which had been committed by the one ship upon the other, it was the first to communicate the intelligence to the American minister in London; and frankly disavow-" ing the transaction, gave assurance of suitable reparation, as soon as the facts should be ascertained.
Intelligence of this being transmitted to Mr. Jefferson, he could but see that the inhibition of the waters of the United States to British ships, was no longer a measure of public safety; and that hence it degenerated into an act of revenge, or became an attempt to take compensation for the recent insult and injury which had produced the measure, and thus impaired the claim of public retribution from Great Britain. But this was not all the use which our magnanimous president meant to make of the means in his hands: there were various points of difference of prior date still unsettled between the two governments; and when the affair of the Leopard and Chesapeake, being of a singular and isolated character, was proposed to be settled and recompensed at once, this was rendered impracticable, by the president's tacking that case to the rest, and insisting on the adjustment of the whole; which of course was not done: an event foreseen by thousands of less sagacity than Mr. Jefferson. And who could but concede, that the president equally foresaw it; and that by keeping the matter unsettled, it could not fail of irritating the people, and of preparing them for the conflict so ardently desired by Bonaparte; though not really by Mr. Jefferson, during his presidency. At length, however, under a new arrangement, the affair of the Chesapeake was detached from the other topics of controversy, and atoned for; without a very good grace on either side. But these are considerations foreign from this history, and cannot be pursued; the writer of which now hastens back to the more immediate occurrences in Kentucky.
To prepare the public mind for the measure contemplated as to Judge Innis, the numbers signed "A voice in the West," were written, and published, from the early part of October, to the latter part of December. As a specimen, and an introduction to the investigation, and demonstrations in the seven subsequent numbers, the first will be inserted; so also will the ninth, as an historical review of the time; while the rest must be omitted for the want of room. %£'*>
No. T.—"To The People of Kentucky.
"A fellow citizen would address you on a subject of high national concern, he solicits your attention; he would animate your feelings, and recall you to a sense of your own and your country's wrongs; he states the obnoxious case; he would unite your wills, and give you a consentaneous impulse; he represents your common interest and united duty; he would excite your indignation; he shews you the clandestine intriguer and the perfidious public functionary; he would stimulate you to an act of public justice and necessary example, and he hopes to convince your judgments of the perfect propriety of the measure.