in order that, if in like manner again acquitted there, he may be again dragged hither to be tried for the misdemeanor!

This argument applies to all cases. If they have the right of committing and sending on to another state in the case of one crime, they have it in all cases whatever, as well in the lowest misdemeanor as the most atrocious murder or treason. What is the meaning of the words "it shall be the duty of the judge of that district," &c. seasonably to issue a warrant "for the removal of the offender?" It is, that he should do it with due speed, without any unnecessary delay. Suppose two years are taken up in this oppressive mode of confinement, commitment, and transmission from jurisdiction to jurisdiction and from state to state— he is to be confined two years without the possibility of being liberated or brought to trial. Does this long deprivation of personal liberty weigh nothing in the scale of punishment? I hope this construction will never be adopted in any court as long as the name of freedom exists.

Mr. Wickham after amplifying further on the subject concluded thus: If they wish to send him to Kentucky let them remove the difficulty produced by themselves. If they will persist in their motion let them enter a nolle prosequi. The gentleman has mentioned the case of a writ of habeas corpus, and asked whether the court would grant such a writ to release a party taken by the marshal by a capias issued from another state on an indictment against him in such state; can such a process issue from one state to another? If it can issue from one state into another, it can from several states at the same time, so as to produce a conflicting process. Such a consequence is an argument against the exercise of such an authority. If such a process could rightly issue, the interference of the court might depend on the situation of the recognisance. If already forfeited by a recorded default, it would not interpose: otherwise it might think proper to assert the right of exercising its own prior jurisdiction.

Mr. WIRT rose not with a view of going on with the cause, but to state again that it was of more importance to consider whether it ought to be tolerated as a principle, that a man charged with a small misdemeanor might with impunity commit the highest crime in nature if out of this district; though if done within our line he would be amenable to justice.

CHIEF JUSTICE.—I have not conclusively made up my opinion. The difficulty on one side is this, that I am bound to try the misdemeanor; and on the other, that I have not the power to suspend the removal if I commit. The court would wish to take the most correct step; but it appears to me that it has not the power to grant the motion, but is bound to proceed to a decision of the misdemeanor.

The application for the commitment and removal depends en tirely on the voluntary choice of the counsel for the United States. Suppose, in the recess of the court, when the indictment for the misdemeanor could not be tried, a motion were made to commit him in order that he might be sent to another state to be tried for treason committed there; could I divest myself of the obligation to try the misdemeanor, and send him to that other state to be tried for the higher offence? It seems to me that I could not. I suspend my opinion. But at present I do not see any difference between the power of the judge in the case of a motion made in court, and in that of one made in vacation.

Mr. BURR.-When a public prosecutor has made his election to prosecute a party accused for such an offence and in such place as he pleases, he ought to be bound by it. They have elected to prosecute for a misdemeanor. We have not called on the court to interfere with their making this choice. Having alrea dy divided one act into two crimes, and prosecuted me for treason, and having failed in these prosecutions against my life, they have converted the same act into a misdemeanor affecting my liberty; and they now wish to transform it into a third offence affecting my life-treason in a different state.

It is the utmost oppression thus to attempt to create several crimes out of one act; because on the same principle, the government may try a man for the same offence as often and in as many different districts as its agents may think proper, and persecute him without end.

Mr. WIRT vindicated the conduct of the attorney for the United States in exhibiting these two charges against the accused. He contended that they were two distinct offences; that the grounds of the second prosecution were entirely different from those of the first; and that the censure which had been lavished on the public accuser was not merited. As to the indictment for treason, in which, said Mr. Wirt, it is said we have been baffled, it was not a full trial after hearing all the evidence on the merits of the prosecution. The greater part of the evidence, which we deemed most material, was excluded from going to the jury on certain legal principles. We were governed by our construction of the opinion of the supreme court. If we were mistaken, it was an error common to those enlightened men who were on the grand jury, and whose minds are as much illuminated as those of any men in this state; and an error which I believe most men of intelligence might commit. The court however has said that the opinion of the supreme court has been misconceived; but no blame ought to be attached to us for that, as the misconception was general and common to the ablest men in this country.

As the attorney for the United States holds in his hands evi

dence of the treasonable acts of the prisoner, if he were to permit him to pass without using every effort in his power to bring him to condign punishment, would he not merit the just reprobation of the people of the United States, whose interests he is representing? Would he act as a faithful prosecutor were he to let so atrocious a crime pass in silence?

Mr. BOTTS insisted that gentlemen had attempted to do what could not be legally done: to make two crimes of one offence. He referred to part of the evidence to shew that treason had not been committed at all; that all the acts which were proved were characteristic of peace only; that according to the practice in Great Britain and this country, these acts were not acts of levying war; that they could not amount to more than a riot; that in all history, not one instance could be adduced where such acts had ever been considered as acts of war; that the cause had been decided according to law and justice; and that consequently this clamor about treason, a crime well known not to have been committed, ought to cease.

Mr. HAY observed, that it would be a great accommodation to the witnesses if this motion were disposed of immediately; that all the witnesses had been summoned in relation to the treason, but only part of them in relation to the misdemeanor. He insisted on the rectitude of his former doctrines; that there was strong concurring testimony of many witnesses to prove that treason had been committed; and that as the principal part of the testimony relied on by the counsel for the prosecution had been excluded from being heard by the jury as irrelevant to prove facts committed in Virginia, undoubtedly the evidence, so excluded as irrelevant, would be received as relevant to facts committed in Kentucky, or the district to which it was proper to send the accused.

Mr. Hay then suggested this idea: Suppose, said he, a motion were made to the same effect to a justice of the peace; suppose it made to a particular magistrate of the county of Henrico, and he were to give his opinion that the prisoner ought to be committed in order to be sent for trial to the district where the crime was committed; I presume that he would, as committing magistrate, be exactly in the same situation that this court is now in, and possessing the same powers to commit by this law. Suppose the magistrate, when application was made to him, were informed by the the accused that he was bound over to appear at the city court here, in November next, on a recognisance to answer for a misdemeanor, and that therefore he ought not to be committed; would this defence avail him? I presume the magistrate would still go on to commit him. He would say "my business is over ⚫ when I commit you. What will become of you afterwards I know

not; that will rest with the district judge. It will be his province to decide whether the existence of this recognisance and prosecution can furnish a bar to your removal. This shews that this is a question which is not to be decided at present but by the district judge.

The argument, which applies as between the magistrate and district judge, is equally applicable as relating to the judges now here, and the district judge.

After some more remarks by counsel on both sides,

The CHIEF JUSTICE declared that though he would not shrink from the performance of any duty, yet he was unwilling to determine on the propriety of the motion to commit till they determined whether they would proceed with the trial for the misdemeanor or not.

Mr. BURR then observed that he had discovered that a letter written by general Wilkinson, on the 12th of November 1806, to the president of the United States was material to his defence.

Mr. HAY said that he had that letter and would produce it; but he added, that in general Wilkinson's letters, there was much matter which ought not to be made public. Among the rest, certain expressions concerning certain people in the western country which had been freely communicated to the government in the utmost confidence, which had no connexion with the question now before the court, and the reading of which might do much mischief. He was willing to put the letter in the hands of the court instead of filing it with the clerk. These letters were written when it was very important that the government should know all the men who stood high in office. The situation of the writer of those letters was very delicate. He took upon himself a very high degree of responsibility. In order to communicate useful and correct information to the government, he was obliged to state characters and circumstances fully and without reserve. It would be extremely improper to submit the whole of the letters to public inspection. He was content to put them in the hands of the clerk confidentially, and he could copy all those parts which had relation to the cause.

The CHIEF JUSTICE said that he thought that neither the go. vernment nor court ought to make such use of general Wilkinson's confidential letters as to embroil him with the world.

Mr. HAY said that he was willing that Mr. Botts, Mr. Wiekham and Mr. Randolph should examine them. He would depend on their candor and integrity to make no improper disclosure; and if there should be any difference of opinion, as to what were confidential passages, the court should decide.

General Dayton appeared in court; and Mr. WICKHAM his counsel wished to know whether the attorney for the United States intended to proceed further on the indictment against him for treason; as some preparatory steps were necessary; and generai Dayton was ready.

Mr. HAY answered that after the opinion of the court delivered in the case of the indictment for treason against colonel Burr, it was not his intention to prosecute the indictment for treason against general Dayton. He could not see the utility of incurring the expense and trouble of such a trial after that decision. He knew no act committed by him at Blannerhassett's island, or elsewhere within this district, that amounted to treason according to that opinion. He therefore thought it correct to enter a nolle prosequi as to that indictment. And it was accordingly entered.

Mr. WICKHAM then pleaded not guilty as to the indictment against general Dayton for the misdemeanor. And he and his bail entered into recognisance for his appearance in court from day to day.

The court then adjourned till to-morrow.

FRIDAY, September 4, 1807.

Colonel BURR renewed his application for the production of the two letters from general Wilkinson to the president of the United States: one of the 21st of October, 1806; and the other of the 12th of November in the same year; and for which a writ of subpana duces tecum had been awarded. He said that the president was in contempt, and that he had a right to demand process of contempt against him; but as it would be unpleasant to resort to such process, and it would produce delay, he hoped the letters would be produced. It might perhaps suffice to produce a copy, if duly authenticated, of that of the 21st of October, which was said to be lost or mislaid.

As to the letter of the 12th of November, which was alleged to contain certain confidential communications from the general to the president, and which the attorney had expressed a willingness to produce, except those parts which were said to be confidential, he was not at present disposed to yield to the proposition. He had reason to believe that the whole letter had been shewn to others to injure him; and as the whole letter had been used against him, the whole ought to be produced.

Mr. Hay did not know what was meant by the expression of such a belief or suspicion. He could assure the accused that no human being had ever seen it to his knowledge, except the person to whom it was addressed, the counsel for the United States, the

f justice and some of colonel Burr's counsel to whom it was ntially communicated, in order to ascertain whether some