and things in general go on as before. It is a mortifying thought, that the enemies of our happy form of government, may now triumph in the acquiescent surrender of the rights, which it was instituted to secure. They may boast that liberty has been scourged with relentless fury and perseverance; that the revolution has been shorn of the brightest of its beams, with the heartiest applauses of those, in whose presence the offences of a tyrant have been presented for punishment. I feel more pain and solicitude on this subject, as a friend to the present administration, than I do as counsel for colonel Burr. I could humble myself to beg of the gentlemen in the prosecution, to save the glory of our executive from the tarnish of praise and impunity to general Wilkinson. If they will not grant my prayer, I must address it to you, sir. I hope and believe, that the chief magistrate of our country is a stranger to what has passed and is passing here. His generous manly soul would surely disdain all the pettylarceny means which have been used to kidnap testimony, betray confidence, and induce perjuries; it would equally revolt at the wanton violation of the most sacred of our laws and chartered rights. Such a system cannot characterize the noblest administration that ever existed.

Let but this daring act pass unpunished, and we cease to be what we were. If a citizen could be imprisoned for three days, he may for three years. If he could be transported to Richmond, he may to India. If one man can be so imprisoned and transported, so may a thousand.

A witness was asked, whether Knox had not his liberty on the voyage? Yes, was the answer. How precious the boon! He was perfectly at liberty to jump into the sea whenever he pleased!

The attempt to make Mr. Gaines the scape-goat of this confederacy (he deserves a better fate) is only equalled by the atrocity of the confederacy itself.

We find that Mr. Wilkinson was inquisitor and transporter general, without scruple or disguise, until he was about to come to the United States. To borrow an idea from Mr. Mac Rae, the noise that had been made about his misdeeds, had taught him cunning. In the courts of New-Orleans, he could make the tribunal bow and tremble, by a parade of magnificent nonsense. To avoid his own humiliation in a freer climate, this farce, in which a mock-judge and a military-civil-sea-marshal, without oath, bond or compensation, were to perform their parts, was devised. It is too clear that Wilkinson was the wire-worker behind the curtain, by which the wicked catering and gambols of mimic magistracy were played. I pity the condition of a subordinate military officer bound to passive obedience. Mr. Gaines was a worthy, duped young man. I was fond of the honest appearance

he made. The candour of his testimony made it more a subject of grief and indignation, that the contrivance should be to put the whole responsibility on him. The introduction of the lawyer, to complicate the disguise, is another feature in the picture. I hope, for the honour of the profession, that there is some mistake as to the part he acted. Wilkinson is to be discerned through every part of the cobweb. He makes the affidavit; he sets the lawyer to work; his military officer becomes a deputy of the marshal to leave his situation without the leave of the commander in chief; a serjeant is the deputy of that deputy; the captain on board is under the direction of the general; to his care captain Gaines commits Knox through the serjeant; the military purse yields the money given to the witness; the vessel taken up by Wilkinson conveys him, and Mr. Gaines owns, that if the general on the passage had directed Knox to be put in irons, the order would have been instantly obeyed. What, a deputy marshal, as such, to obey the orders of a military commander! The insidious attempt at Hampton Roads, first involuntarily made by Mr. Gaines, and afterwards repeated by general Wilkinson, to seduce an acknowledgment, that the civil authority had transported the witness, may be connected with the other proofs. But the demand, by general Wilkinson of Knox's parol of honour to come to Richmond as the condition of his enlargement, would be decisive on the present question, if it admitted of doubt.

But you are gravely asked by Mr. Mac Rae to pronounce, that general Wilkinson deserves well of his country for all these his patriotic acts. What, in other times, and in other places, would subject a man to be suspended between the heavens and the earth, from whence his spirit should flee for ever, now calls forth the highest panegyric. I heard a compliment like the present from the counsel, when general Wilkinson was here on yesterday. I looked upon him and witnessed a smile, when the occasion was better adapted to a groan. It was a smile of the ghastly kind. It seemed to be of that convulsive sort which distorts the face of the dying. Perhaps general Wilkinson took a retrospect and felt the compliment to be a reproach. Thus prejudice leads gentlemen to praise acts of atrocity. This subject has been treated with singular levity, by the gentlemen in the prosecution. They have not ventured to justify the commitment of Knox. The farthest that Mr. Mac Rae ventured, was to risk the supposition, that the act of congress was of doubtful application, and might possibly apply. He in this tacitly yields, that there is no justifying the conduct pursued in the commitment. The gentleman who spoke last, reminds us, that "the sins of the fathers ought not to be visited on the children." I say then, that the sins of the principals ought not to be visited on the subalterns. Mr. Mac Rae concludes with reminding the court, that colo

nel Burr had enjoyed privileges that no one under prosecution before him had ever enjoyed. He said too, that you were perfectly right to hear us on this question. I submit to him whether the first remark were just or respectful to the court? In the latter point he differs from another gentleman on the same side, who has struggled much to prevent us from addressing you.

It only now remains for me to prove that your jurisdiction is commensurate with our purpose. The 14th sect. of the judicial act authorises the court to issue all writs not specially authorised, for the more perfect exercise of the powers vested in it. The power of compelling attendance and securing privilege, cannot be exercised in perfection without a power of attaching for contempts in the one case or the other. The district courts of Virginia constantly exercise this right of overlooking the purity of the streams of their justice, through all its branchings, without the district as well as within. The right of attachment overreaching the limits of the state, must result as incidental to the emanation of the subpoena to other states. But the rioting of lawless power continued from New-Orleans to Richmond. When it entered on the seas it was within the regular limits of your authority.

In a view to the privilege of the witness this motion must be sustained, if we be deceived in all our other grounds. What means the privilege, unless it be, that he shall have protection from abuse? Is it to assist in this privilege to imprison him? Is the privilege to exclude him from all his rights, and put him at the mercy of land and sea gaolers? If this be the enviable advantage of privilege, general Wilkinson will deserve well of his country for assisting to maintain it.

Knox was summoned before any of this violence was used towards him. From the moment that he was summoned, he was under your protection. The naked service of a summons must have proved, that your powers reached not beyond a summons until there were default. It was absurd to suppose, that what this court could not do for itself, a magistrate, no way connected with it, could unasked and officiously do for it.

I refer the court, without comments, to Supplement to Viner's Abridgment, 225. and 3 Hawkins, 275. on the subject of contempts of the court.

When Mr. Botts was speaking, [being about two o'clock] the grand jury entered, and Mr. Randolph, the foreman adressed the court; and stated, that they had agreed upon several indictments; which he handed in at the clerk's table. The clerk read the endorsements upon them in the following terms:

An indictment against Aaron Burr for treason-" A true bill."

An indictment against Aaron Burr for a misdemeanor"A true bill."

An indictment against Herman Blannerhasset for treason"A true bill."

An indictment against Herman Blannerhasset for a misdemeanor-" A true bill."

Mr. RANDOLPH then continued: May it please the court, Although the grand jury have returned these bills; they have still other subjects for their consideration, and have adjourned themselves to meet to-morrow at ten o'clock.

After Mr. Botts concluded his argument, Mr. BURR addressed the court and observed, that as bills had been found against him, it was probable, the public prosecutor would move for his commitment; he would, however, suggest two ideas for the consideration of the court: the one was, that it was within their discretion to bail in certain cases, even when the punishment was death; and the other was, that it was expedient for the court to exercise their discretion in this instance, as he should prove, that the indictment against him had been obtained by perjury.

Mr. HAY moved for the commitment of Aaron Burr. He stated, that if the court had the power to bail, by the 33d sect. of the judicial act, it was only to be exercised according to their sound discretion; and that the prisoner was not to demand bail as matter of right, because the court was authorised to grant it, but by his making out an adequate case, and showing that he was entitled to it. He quoted 4 Blackstone's Commentaries, p. 298. to prove that this discretion ought to be deliberately and cautiously exercised.

Mr. MARTIN. The counsel for the prosecution have then admitted the right of the court to give bail, according to its dis

cretion.

Mr. MAC RAE did not understand from the judicial act, that the discretion was to be exercised at this stage of the business, but only at the time of making the arrest.

Mr. MARTIN.I can hardly suppose that this court has less power than the court of king's bench in England, which certainly possesses this authority, according to 2 Hale, p. 129. 134.

Mr. WIRT was extremely solicitous to do any thing, compatible with his duties, which might soften the situation of the prisoner, and if the court had the discretion, he did not wish them to restrict it; but he did not perceive the analogy which had been drawn between this court and the court of king's

bench. The powers of that court grew out of the common law of England, whereas the powers of this court were defined by a statute of our country. What says the 33d section of the judicial act?" Upon all arrests in criminal cases, bail shall be admitted; except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence and the usages of law." Is not this inquiry by the court stopped, said Mr. Wirt; is not the evidence and testimony stopped, when it is now locked up by the finding of the grand jury? Would it be right for this court to go into all the merits of the case, which this clause evidently requires, before the court can exercise this discretion? Will the court go into the investigation of the evidence, and thus throw itself into collision with the grand jury? It is obvious from these considerations, as well as from the words of the law, that such a discretion does not exist at this stage of the business, but only at the time of arrest.

Mr. WICKHAM.-The counsel for the United States express their readiness to accommodate colonel Burr, yet act otherwise. If the court of king's bench possess this authority, shall it be contended that this court is without it? Shall it be said, that the liberties of the people of this country are not as well secured as those of Great Britain? that a British subject has greater privileges than an American citizen? It is said, however, that this court grows not out of the common law, but out of our statutes; but will it be said, that, when this court has once been constituted, it does not proceed according to the established jurisprudence; that is, the common law? There can be no question but that a state district court can bail, even in capital cases. Will this court, it is asked, place itself in opposition to the grand jury? No, sir, it will not; and Mr. Wirt certainly forgets that the court is to hear both sides of the evidence; whereas, the grand jury heard one side only, and indeed a part only of that side; for had the United States' attorney sent up all the witnesses, whose names appear at the foot of the indictment, very different would have been the result of their inquiries. The ground which we take is this: that the grand jury have found their bill upon the testimony of a perjured witness; and if the court were to bail colonel Burr, would it not be justly inferred, that they had not set themselves up in opposition to the grand jury, but that they had been furnished with lights, which had been denied to that jury? "Upon arrests," signifies in all cases, where there has been an arrest. The case in Dallas comes fully up to the point.