war. 5. His capitulation,
regularly signed with the aid of the Governor, as between two
independent and hostile commanders.

But a moment's calculation will show that this 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 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
Cumberland, and return in five weeks, to do which 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 of 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 letters 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, threat o