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have killed his person, if he had been formally condemned for treason. He said, that even post-offices had been broken open, and robbed of his papers; that, in the Mississippi Territory, even an indictment was about to be laid against the postmaster; that he had always taken this for a felony; but that nothing seemed too extravagant to be forgiven by the amiable morality of this government. All this, said Mr. Burr, may only prove that my case is a solitary exception from the general rule. The government may be tender, mild and humane to every one but me. If so, to be sure it is of little consequence to any body but myself. But surely I may be excused if I complain a little of such proceedings. Mr. Burr said, there seemed to be something mingled in those proceedings, which manifested a more than usual inclination to attain the ends of justice: as far as it related to himself, perhaps, these things were of no account; but what was then to be said of those and other measures, such as the suspension of the habeas corpus act, which concerned the whole nation? If in the island of Great Britain such a measure was calculated to produce so much disturbance, what kind of sensation ought it to produce in this country.

Our president, said Mr. Burr, is a lawyer, and a great one too. He certainly ought to know what it is, that constitutes a war. Six months ago, he proclaimed that there was a civil war. And yet, for six months have they been hunting for it, and still cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but no where else. When I appeared before the grand jury, in Kentucky, they had no charge to bring sgainst me, and I was consequently dismissed. When I appeared for a second time, before a grand jury, in the Mississippi Territory, there was nothing to appear against me; and the judge even told the United States attorney, that if he did not send up his bill before the grand jury, he himself would proceed to name as many of the witnesses as he could, and bring it before the court. Still there was no proof of war. At length, however, the Spaniards invaded our territory, and yet, there was no war. But, sir, if there was a war, certainly no man can pretend to say, that the government is able to find it out. The scene to which they have now hunted it, is only 300 miles distant, and still there is no evidence to prove this war.

Mr. Burr requested the court to consider the consequence which would now result from a commitment for treason; that if he were bound now, the law of Virginia declared, that he should so remain until the next term; that this delay was the very inconvenience he would wish to avoid; and that he presumed he was to remain in prison six months, until they could find out this war.

Here the arguments closed, and the court then adjourned till to-morrow morning at ten o'clock.

TUESDAY, MAY 26th, 1807."

The following Opinion was delivered by the Chief Justice of the United States, on Mr. Hay's motion to commit colonel Burr.

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IN considering the question which was argued yesterday, it appears to be necessary to decide:

1st, Whether the court, sitting as a court, possesses the power to commit any person charged with an offence against the United States.

2dly, If this power be possessed, whether circumstances exist in this case which ought to restrain its exercise.

The first point was not made in the argument, and would, if decided against the attorney for the United States, only change the mode of proceeding. If a doubt can exist respecting it, that doubt arises from the omission in the laws of the United States to invest their courts, sitting as courts, with the power in question. It is expressly given to every justice and judge, but not to

a court.

This objection was not made on the part of colonel Burr, and is now mentioned, not because it is believed to present any intrinsic difficulty, but to show that it has been considered.

This power is necessarily exercised by courts in discharge of their functions, and seems not to have been expressly given; because it is implied in the duties which a court must perform, and the judicial act contemplates it in this light. They have cognisance of all crimes against the United States; they are composed of the persons who can commit for those crimes; and it is obviously understood, by the legislature, that the judges may exercise collectively the power which they possess individually, so far as is necessary to enable them to retain a person charged with an offence in order to receive the judgment which may finally be rendered in his case. The court say, this is obviously understood by the legislature; because there is no clause expressly giving to the court the power to bail or to commit a person, who appears in discharge of his recognisance, and against whom the attorney for the United States does not choose to proceed; and yet the thirty-third section of the judicial act evinces a clear understanding in the legislature, that the power to take bail is in possession of the court.

If a person shall appear in conformity with his recognisance, and the court passes away without taking any order respecting him, he is discharged. A new recognisance, therefore, or a commitment on the failure to enter into one, is in the nature of an original commitment, and this power has been uniformly exercised.

It is believed to be a correct position, that the power to commit for offences of which it has cognisance, is exercised by every

court of criminal jurisdiction, and that courts as well as individual magistrates are conservators of the peace.

Were it otherwise, the consequence would only be, that it would become the duty of the judge to descend from the bench, and, in his character as an individual magistrate, to do that which the court is asked to do.

If the court possesses the power, it is certainly its duty to hear the motion which has been made on the part of the United States; for, in cases of the character of that under consideration, its duty and its power are coextensive with each other. It was observed when the motion was made, and the observation may now be repeated, that the arguments urged on the part of the accused rather prove the motion on the part of the United States unnecessary, or that inconveniences may result from it, than the want of a legal right to make it.

The first is, that the grand jury being now in session ready to receive an indictment, the attorney for the United States ought to proceed by bill instead of applying to the court, since the only purpose of a commitment is to bring the accused before a grand jury. This statement contains an intrinsic error which destroys its operation. The commitment is not made for the sole purpose of bringing the accused before a grand jury; it is made for the purpose of subjecting him personally to the judgment of the law, and the grand jury is only the first step towards that judgment. If, as has been argued, the commitment was simply to detain the person until a grand jury could be obtained; then its operation would cease on the assembling of a grand jury; but such is not the fact. The order of commitment retains its force while the jury is in session, and if the prosecutor does not proceed, the court is accustomed to retain a prisoner in confinement, or to renew his recognisance to a subsequent term.

The arguments drawn from the general policy of our laws; from the attention which should be bestowed on prosecutions, instituted by special order of the executive; from the peculiar inconveniences and hardships of this particular case; from the improper effects which inevitably result from this examination, are some of them subjects for the consideration of those who make the motion, rather than of the court; and others go to the circumspection with which the testimony in support of the motion ought to be weighed, rather than to the duty of hearing it.

It has been said that colonel Burr already stands charged with treason, and that, therefore, a motion to commit him for the same offence is improper. But the fact is not so understood by the court. The application to charge him with treason was rejected by the judge to whom it was made, because the testimony offered in support of the charge did not furnish probable cause for the opinion, that the crime had been committed. After this rejection, colonel Burr stood, so far as respected his legal liability to

have the charge repeated, in precisely the same situation as if it had never been made. He appears in court now as if the crime of treason had never before been alleged against him. That it has been alleged, that the government had had time to collect testimony for the establishment of the fact, that an immense crowd of witnesses are attending for the purpose, that the prosecutor in his own judgment has testimony to support the indictment, are circumstances which may have their influence on the motion for a commitment, or on a continuance, but which cannot deprive the attorney for the United States of the right to make his motion. If he was about to send up a bill to the grand jury, he might move that the person he designed to accuse, should be ordered into custody, and it would be in the discretion of the court to grant or to reject the motion.

The court perceives and regrets that the result of this motion may be publications unfavourable to the justice, and to the right decision of the case; but if this consequence is to be prevented, it must be by other means than by refusing to hear the motion. No man, feeling a correct sense of the importance which ought to be attached by all to a fair and impartial administration of justice, especially in criminal prosecutions, can view, without extreme solicitude, any attempt which may be made to prejudice the public judgment, and to try any person, not by the laws of his country and the testimony exhibited against him, but by public feelings, which may be and often are artificially excited against the innocent, as well as the guilty. But the remedy, for a practice not less dangerous than it is criminal, is not to be obtained by suppressing motions, which either party may have a legal right to make.

If it is the choice of the prosecutor on the part of the United States to proceed with this motion, it is the opinion of the court that he may open his testimony.

Mr. HAY then rose, and observed, that he was struck with the observations of the court relative to "publications," and he would attempt if possible to make some arrangement with the counsel on the other side to obviate that inconvenience; and he understood they were disposed to do the same.

The counsel on both sides then retired by permission of the court for this purpose. They returned in a short time; and Mr. Hay informed the court that the counsel for the United States, and for colonel Burr, not having yet been able to agree upon any arrangement which would attain his object, namely, that of having colonel Burr recognised in a sum sufficiently large to insure his appearance to answer the charge of high treason against the United States, without incurring the inconvenience resulting from a public disclosure of the evidence at this early stage of the proceeding, wished to have further time for that deVOL. I.

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sirable purpose. This was granted by the court, and it then adjourned till next day.

WEDNESDAY, MAY 27th, 1807.

Mr. HAY informed the court, that all hopes of the arrangement which he had mentioned yesterday were at an end: for he had received a letter from colonel Burr's counsel, positively refusing to give additional bail. He therefore deemed it his duty to go on with the examination of the witnesses in support of his motion to commit Mr. Burr. He observed, that he regretted extremely that it became necessary in his judgment to pursue this course. He felt the full force of the objections to a disclosure of the evidence, and to the necessity of the court's declaring its opinion, before the case was laid before a jury; but those considerations must yield to a sense of what his engagements to the United States imperiously demanded of him: that in adducing the evidence, he should observe something like chronological order. He should first read the depositions of the witnesses who were absent, and afterwards bring forward those who were present, so as to disclose all the events, as they successively happened.

Mr. WICKHAM stated that there were two distinct charges against colonel Burr. The first was for a misdemeanor, for which he had already entered into recognisance; the second was a charge of high treason against the United States, which was once proposed without success, and is now again repeated. On this charge the United States must substantiate two essential points: 1st, That there was an overt act committed; and 2dly, That colonel Burr was concerned in it. Every thing that does not bear upon these points is of course inadmissible; the course therefore laid down by the attorney for the United States is obviously improper. He proposes to examine his witnesses in a kind of chronological order.

Colonel Burr requires that the evidence should be taken in strict legal order. The court and even the opposite counsel will see the propriety of observing this order. If the attorney for the United States has affidavits to p.oduce, let him first demonstrate that they have a right to produce them. We first call upon him to prove, by strict legal evidence, that an overt act of treason has been committed. If he cannot establish that one point, all the evidence which he can produce, is nugatory and unavailing.

Mr. HAY had no doubt, that the gentleman would, if he could, suppress all the evidence; that although that gentleman had been so good as to prescribe for him the course he ought to pursue, he should still pursue his own course; and he would assure that gentleman, that he was almost the last person in the world, whose advice on the present occasion he would pursue. Mr. Hay

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