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which induced the judge to take bail in so small a sum; it was expressly mentioned by your honour, that his having been brought to a place at a distance from the circle of his friends, and the nature of the offence, (a misdemeanor only) induced you to hold him to bail in that sum; and the charge of treason was altogether excluded from view in taking the recognisance.

Mr. WIRT.-Mr. Wickham, in saying that my friend Mr. Hay thought he had obtained the object of his motion merely by having made it, clearly misconceived the object of the motion now before the court. The motion we made yesterday was to commit colonel Burr on a charge of treason: our motion to day is to hold him in custody to abide the opinion which the court may pronounce upon the question of commitment. The gentlemen say, that we have secured the object we have in view by the recognisance already taken. The court expressly excluded the charge of treason from that recognisance, which applies only to the misdemeanor. Let us suppose that the motion to commit colonel Burr was made out of court before a single magistrate: if the examination of witnessess in support of the motion occupied more than one day, would the magistrate let him go at large, while it was depending? Would he not rather, either have him retained in custody, or take security for his appearance, and renew it every evening until the motion should be determined? This is all that we ask of the court to do. The recognisance which has been given applies to the misdemeanor only. If therefore it should be forfeited by his going away, we should have had no security for his answering the charge of treason; a much more enormous offence, and attended with a very different punishment. We contend therefore that additional security ought to be taken.

Mr. BOTTS.-I shall endeavour to place this subject in some measure in a new light. It has been said, that the former examination of colonel Burr did not preclude this motion; if so, every new edition of the volume of evidence would justify a renewal of the motion to demand additional bail. Thus motions might be heaped upon motions, and bail upon bail, until the per petual imprisonment of the accused might be the consequence. It was a practice, in former times, to drown a person accused of being a witch, in order to try her. I think that practice is renewed on the present occasion, in another shape; a motion is made to commit colonel Burr for treason, before the evidence can be gone through by which alone it can be ascertained that he ought to be committed. The court are requested to predetermine the effect of the evidence, and commit, before they have decided whether they ought to commit: besides, no warrant has been issued against colonel Burr on the present occasion;

he has not been arrested for treason, and therefore cannot be considered as in custody for that offence.

Mr. HAY then made some farther observations on the impor tance of the charge of treason (which is of the highest nature, involving the reputation and life of the prisoner,) and the great necessity therefore of the most ample security to compel his appearance to answer it. He stated that this examination might last many days; that after the court had made up an opinion that colonel Burr ought to be committed, he might march off and leave the court to pronounce it; so that an order to commit might be made by the court, and no person found on whom it could be executed. Such an event, he said, would excite the laughter and scorn of all the people of the United States. He mentioned that an immense expense had been incurred by the government in collecting witnesses, and preparing for this trial; that therefore he did not wish the whole of that expense to be thrown away. General Wilkinson is expected to arrive between the 28th and 30th of this month: if he arrives, both the bills of indictment will be immediately sent to the grand jury. This is the first instance in which the ministers of the law have been requested to say to the accused, "You may do as you please, and go at large until we pronounce sentence.' The gentlemen contend for new principles in favour of colonel Burr; but, I trust that greater privileges will not be granted to him than to the humblest deluded victim of his ambition. The circumstance that he has already entered into a recognisance to answer for a misdemeanor, is no argument to exempt him from entering into another on a charge of treason. Shall the accused clear himself of a responsibility for one crime by his having committed or being charged with another? This would indeed be to violate that maxim of law, that no man shall be benefited by his own wrong. Mr. Botts has contended that there is a difference between the case on the examination and that now before the court; that in the first instance a warrant had been issued, but none in the present; but a warrant is certainly unnecessary, now that the prisoner is before the court. The object of a warrant is to bring him before you. When this has been done, it is functus officio; here is colonel Burr, before the court. It is therefore immaterial how he came before it; but he ought to be considered in custody, until discharged by the due course of law.

The CHIEF JUSTICE delivered the opinion of the court, the substance of which was as follows: It is certainly necessary that a person accused should be retained in custody, or required to give security for his appearance while his examination is depending. The amount of the security to be required, must depend, however, upon the weight of the testimony against him. On a former occasion, colonel Burr was held to bail for his daily ap

pearance in the sum of five thousand dollars only, because there was no evidence before the judge to prove the probability of his having been guilty of treason. When the examination was completed, the sum of ten thousand dollars was considered sufficient to bind him to answer the charge of a misdemeanor only, because the constitution requires that excessive bail should not be taken; but that recognisance had no application to the charge of treason. Yet, whether additional security ought to be required in the present stage of this business, before any evidence has appeared to make the charge of treason probable, is a question of some difficulty. It would seem, that evidence sufficient to furnish probable cause must first be examined, before the accused can be deprived of his liberty, or any security can be required of him. Yet, before this could be done, he might escape and defeat the very end of the examination. In common cases, where a person charged with a crime is arrested and brought before a magistrate, the arrest itself is preceded by an affidavit, which furnishes grounds of probable cause. The prisoner therefore is continued in custody, or bailed until the examination is finished: but here there has been no arrest for treason, and colonel Burr is not in custody for that offence. The evidence then must be heard to determine whether he ought to be taken into custody; but as the present public and solemn examination is very different from that before a single magistrate; as very improper effects on the public mind may be produced by it; I wish, that the court could be relieved from the embarrassing situation in which it is placed, and exempted from the necessity of giving any opinion upon the case, previously to its being acted upon by the grand jury. It is the wish of the court, that the personal appearance of colonel Burr could be secured without the necessity of proceeding in this inquiry.

Colonel BURR rose, and observed, that he denied the right of the court to hold him to bail in this stage of the proceedings; that the constitution of the United States was against it; declaring that no person shall be arrested without probable cause made out by oath or affirmation. But if the court were embarrassed, he would relieve them by consenting to give bail; provided it should be understood, that no opinion on the question even of probable cause was pronounced by the court, by the circumtance of his giving bail.

The CHIEF JUSTICE said, that such was the meaning of the court. Mr. MARTIN said, for his part, he should prefer that all the evidence should be fully gone into. Instead of fearing that public prejudice would thereby be excited against colonel Burr, he believed it would remove all the prejudices of that sort which now prevailed.

VOL. I.

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The CHIEF JUSTICE. As a bill will probably be sent up to the grand jury, the court wishes to declare no opinion either way.

Some conversation then occurred relative to the quantum of bail; and colonel Burr mentioned, that he would propose that the sum should be ten thousand dollars, if he should be able to find security to that amount, of which he expressed himself to be doubtful. Mr. Hay contended, that fifty thousand dollars would not be too much. But the court finally accepted of the offer made by colonel Burr; who after a short interval, entered into a recognisance with four securities, to wit, Messrs. Wm. Langburn, Thomas Taylor, John G. Gamble, and Luther Martin; himself in the sum of ten thousand dollars, and each security in the sum of two thousand five hundred dollars, conditioned, that he would not depart without leave of the court.

Mr. MARTIN, when offered as security for colonel Burr, said, that he had lands in the district of Virginia, the value of which was more than double the sum; and that he was happy to have this opportunity to give a public proof of his confidence in the honour of colonel Burr, and of his conviction that he was inno

cent.

All further proceedings in the case were thereupon postponed, until the next day.

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FRIDAY, May 29th, 1807.

The court met, but as the witnesses had not arrived, it was adjourned till Monday next, at 10 o'clock.

MONDAY, June 1st, 1807.

The court met according to adjournment. Present, the CHIEF JUSTICE and judge GRIFFIN.

The grand jury having been called over, Mr. HAY observed, that he felt great embarrassment and difficulty as to the course which ought to be pursued; he had confidently expected the arrival of general Wilkinson, and was disappointed. He was, therefore, unwilling to subject the grand jury to the inconvenience of farther attendance: but he thought it proper to inform the court, that he had this morning received. a number of affidavits of witnesses, residing in the neighbourhood of Chillicothe, and of Blannerhasset's island, which bore directly upon the charge of treason against colonel Burr. Those affidavits, however, had been taken in such a manner, that, according to the opinion lately given by the court, concerning the affidavit of Jacob Danbaugh, they were not admissible as evidence, and would not be permitted to be read. He expected to hear from general Wilkinson, (if he should not appear in person) by the Lynchburgh mail, which he understood

would arrive on Wednesday morning. He, therefore, hoped, that the grand jury would not be unwilling to make a farther sacrifice of a portion of their time for the public good, and would consent to wait with patience.

The grand jury were adjourned until Tuesday, ten o'clock.

TUESDAY, June 2d, 1807.

General Wilkinson not having arrived, no business was done to-day, but the court adjourned till to-morrow morning, ten o'clock.

WEDNESDAY, June 3d, 1807.

The court met according to adjournment.
The same judges present as yesterday.

The names of the grand jury being called over, they retired to their chamber. A few minutes after, the attorney for the United States entered, and observed, that he had a proposition to submit to the court, which he wished the grand jury to hear. He requested, therefore, that they might be called in. Counsel for Mr. Burr. We have no objection.

The chief justice directed the marshal to call the jury into

court.

Some minutes intervened before they appeared. In the mean time, Mr. HAY informed the court, that he only wished to know from the grand jury, at what time it would be most convenient for them to attend the court, if they were adjourned to some distant day, should such an adjournment equally suit the arrangements of the opposite counsel; that he had just made a calculation with his friend the marshal, which satisfied him that general Wilkinson had not, perhaps, sufficient time to reach this city. The distance from New-Orleans, on the map, was about 1370 miles; if he came by land, he must travel on horseback; but judging him by himself, he could not probably ride more than thirty miles per day: by these data he would require about forty-five days (besides a fragment of a few miles) to travel from New-Orleans to this city. This calculation would bring him to the 14th or 15th of this month. He was, therefore, willing, if it suited the wishes of the opposite counsel, to have the grand jury adjourned for about ten days; that general Wilkinson's situation called upon the court to make this arrangement; he need not expatiate upon the importance of his official duties, nor the perilous condition of that part of the country, where the head of the army ought always to be present; that general Wilkinson should be detained here as short a time as possible; and, that it would be particularly inconvenient for him to stay here until the meeting of an intermediate court for the

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