The enquirer (Richmond, Va.), 1807-05-30 00:00:00

The Enquirer.
PUBLISHED BY THOMAS RITCHIE, OPPOSITE THE POST-OFFICE.....AT FIVE DOLLARS PER ANNUM.....(PAYABLE IN ADVANCE.)
VOLUME 4.]
RICHMOND, SATURDAY MORNING, MAY 30, 1807.
[NUMBER 6.
Europe.
NEW-YORK, May 19.
From a London paper of the evening of the 2d of April, received per the ship Yorck Point , captain Thompson , from Londonderry.
LONDON, April 2.
Yesterday at 12 o'clock, his majesty came from Windsor to the Queen's Palace. About half past 1 o'clock his majesty gave an audience to Lord Erskine, when his lordship delivered up the great seal. At 2 o'clock, his majesty held a private levee; at which the following had the honor of kissing his majesty's hand upon their several appointments:—Lord Eldon, on being appointed Lord Chancellor. Mr. Robert Ward, on being appointed a Lord of the Admiralty. Mr. S. Bourne, on being appointed a Lord of the Treasury. The Duke of Richmond, on being appointed Lord Lieutenant of Ireland. Lord Sydney, on being appointed Ranger of Hyde and St. James' Parks, in the room of the Earl of Euston. Admiral Gambier, on being appointed a Lord of the Admiralty. Major-General the Hon. John Abercromby on being appointed to the command of the 53d regiment. Lord St. John resigned his Staff of office, as Captain of the Band of Gentlemen Pensioners. His majesty held a Privy Council, when Lord Eldon was sworn in Lord High Chancellor.
We daily expect to receive intelligence of a battle, which may eventually decide whether Bonaparte is to remain beyond the Vistula, or whether he is to halt his retreat to the Rhine. Both parties, after the late tremendous trial of strength at Eylau, where Nature turned pale at the sight of so much destruction, are bringing up their reinforcements. We have already mentioned, that the intention of the French is to turn the left wing of the Russians. But this intention is understood; Essen is opposed to Massen, with a superior force; and unless the former be defeated, this last combination is disconcerted and Napoleon must retire.
We have seen some letters respecting the battle of Eylau, which throw new light on the circumstances leading to that tremendous conflict. Bernadotte, alias Ponc Corvo, being greatly pressed, sent for reinforcements. His Courier was intercepted; and Bonaparte advancing to Konigsberg found himself in front, not of a Russian detachment, but of the main army. A battle was then unavoidable; and it exceeded, those letters say, all that has ever been heard of, or read in history. The number of the killed and wounded amounted to no less than 55,000 men. Of those put hors de combat 15,000 were Russians, and 40,000 French. The greater loss of the latter arose from their advancing upon the most fortified part of the Russian line, where almost every adjacent fell. They succeeded also in another way. The Gen. d'Armes a Chevalier made their way through the Russian wings; they were there met by the cavalry of reserve, and but 16 out of 5000 men returned to the Grand Army. The Russians formed a compact mass—a column of granite, as the French would express it; but before night arrived, the appearance of the Prussian army, which had been fighting all day, put an end to the conflict, and caused the French to retreat.
Thursday, afternoon, April 2.
Foreign papers to the 23d ult. have reached us, which abound in pacific reports. It seems to be a general opinion on the continent, that a negotiation for peace, under the mediation of the court of Vienna, has either been actually commenced, or is about to take place, between France and Russia. We trust, however, that the intercourse between the Cabinets of Vienna, and St. Petersburg, has some better object in view, than to relieve Bonaparte from his present embarrassment, by a precipitate and ill advised peace, which he would maintain just as long as it suited his convenience, and not one moment longer. According to every appearance they have at last got the tiger in the toils; and it is their fault if they let him escape. The following is an article from
STUTGART, March 14.
"The reports of an armistice are still in circulation; and, it is added, that since the mediation of the Court of Austria has been offered, the Emperor Napoleon has expressed his willingness to treat with Russia, upon the conditions offered by M. D'Oubril. We mention these things merely as rumours; they only serve to show the sentiments the people of Germany entertain of the moderation of the Emperor Napoleon."
We add another from Frankfort, March 15.
"For some days past there has been a report of a three-fold alliance between France, Prussia, and the Porte. Some say it is already signed by the two latter powers, and that France will accede to it."
"The news from Vienna continues to wear the most pacific complexion. We are assured, that Baron St. Vincent's mission to Warsaw has had the happiest consequences; and that Austria will now exert all her influence at St. Petersburg to induce Russia to make peace; but, by these advances, it is contrary to all expectation, the efforts of the Court of Vienna are not crowned with success, Austria will be more determined than ever to remain neutral during the present contest."
Capt. Weeks, of the ship Washington , has favoured the editor of the Mercantile Advertiser with a file of Paris papers to the 2d of April, and Rochelle to the 5th, both inclusive; from which the following articles are copied.
Translated for the Mercantile Advertiser.
PRUSSIA.
Berlin, 18th March.
The Emperor Napoleon is expected here every moment. It is believed that his majesty, after a short stay in this city, will set off for Dresden, where great preparations are making for his reception.
A French commissary, convicted of divers frauds, has been condemned to death, and shot in the garden of the menagerie.
AUSTRIA.
Vienna, March 21.
The court gazette of to day contains an article which leaves not the smallest doubt of a close union having been formed between England and Russia, against the independence of the
Porte. This article says that the squadron of Admiral Louis stationed off the isle of Tenedos, has been reinforced by four 3-deckers and several frigates and corvettes; that on the 21st February they attempted to force the passage of the Dardanelles, which is defended by seven forts; that the action was very warm and little favourable to the small number of vessels which the Turks had to oppose against them. Even in the midst of the action the English began to negotiate, and proposed accommodations, which were still going on at the departure of the courier. It is believed that the Porte will not suffer itself to be intimidated.
Letters from Hungary say that the Russians have renounced their enterprise against the isle of Lissa in Dalmatia. The Russian squadron under admiral Sinavin, cruising in the Ionian seas, has been reinforced by three ships of the line, and 9 other smaller vessels of war.
The public funds have not yet risen; we know not to what cause this depression is to be attributed.
GERMANY.
Frankfort, March 26.
The fortresses of Moldavia and Wallachia are about to be repaired and supplied with every article requisite for maintaining a long siege, in case it should be necessary. All the Turks have retired from beyond the Danube. From other quarters we hear that the Russians are preparing to abandon Wallachia.
Housseld Pacha, who has been for some time governor of Egypt, is appointed Pacha of Widin, vacant by the death of Pashwan-Oglou Multapha-Bairactar, a pacha of three tails, continues to command the Ottoman troops which are along the right bank of the Danube.
According to letters from Warsaw of the 17th March, the cold weather is very sensibly felt in that country. The thermometer of Reaumur was for several days at 10 degrees below O. The Grand Army is reposing itself in its cantonments.
Accounts from Pomerania say that the Marshal Mortier's corps of the army will shortly be augmented to 25,000 men. Dutch troops have replaced the French regiments which have been sent to East Prussia. Other reinforcements are on the march to join those already arrived. In short, that corps of the army will be sufficiently numerous to carry on the siege of Stralsund, if it should enter into the general's views to undertake it. An expedition prepared at Wolgast, is, it is believed, destined against the isle of Rügen.
WIRTEMBERG.
Stuttgart, March 25.
A courier, which left Warsaw on the 16th March, and arrived here yesterday, announces that the French imperial head-quarters were still at Ostrode. Excepting some insignificant skirmishes of advanced posts, nothing new has taken place between the two armies. From the frequent and successive journeys of General Bertrand, his majesty's aid-de-camp, to Konigsberg and Memel, it is presumed all hopes of negotiations for peace are not vanished. The minister prince Benevento, who had gone to the French imperial head-quarters, has returned to Warsaw. The Turkish and Persian legations were still at that city at the departure of the courier; but would soon remove to Berlin, the diplomatic body having already set off for that capital.
TURKEY.
Constantinople, February 13.
The Sublime Porte has transmitted to the ministers of foreign powers the following note on the departure of the English minister:
"Although the faithful relations which have incessantly existed between the Sublime Porte and the court of England, could not have given rise to any coolness between them; and though the Sublime Porte, justly offended at the strange propositions which the English minister made a few days ago in a conference; it has contented itself in replying that "it was actually at war with Russia and at peace with England;" at the moment when we could flatter ourselves that after the most mature reflections the English envoy would desist from pretensions so derogatory to the dignity of nations and the honour of powers; that envoy has, on the contrary, renewed them in a note to which are demanded a written answer; and afterwards, without announcing his departure, and without any known cause, he embarked suddenly with his suite and some of the merchants of his nation in an English frigate which was in port, and which, cutting her cables, failed at midnight. It was only in a note he left, to be given after his departure to the Sublime Porte, that he declares as the principal cause of his discontent, the refusal of a passport for a courier which he wished to send to the Dardanelles. As he had not received on that occasion a negative answer, this supposed refusal could not have been the motive for his departure; and it is well known that neither he nor any other English subject have had cause to complain of any act by which their safety could be endangered."
Though this conduct would have sufficiently authorised the Sublime Porte to act in a manner suitable to the provocation of the English envoy, it has not however thought proper to depart from those principles of equity by which it has been constantly animated; and in the firm persuasion that the court of England is, on its part, incapable of conducting itself in a manner contrary to the rules of justice, has given to the care of Hutchins, Danish charge d'affaires, and attorney for the said British minister, all the effects and moveables belonging to him and to the persons in his suite; and besides, his bigness, in granting his beneficent protection to the families, and to the English individuals who remain in this country, has given precise orders that they may be in safety throughout the whole Ottoman empire. He has also ordered to the officers of the regency to cause the vessels and properties of the English subjects to be respected, and to leave them as they are until further orders.
The Sublime Porte has caused the present official note to be drawn up as a new proof of the moderation and justice which have always directed its conduct, and has caused it to be transmitted to all the ministers of friendly powers, that they may communicate the same to their respective courts.
Done the 25th of the month Zyllada, year of the Hegyra, 1221 (4th February, 1807.)
SWEDISH POMERANIA.
Griefswald, 17th March.
During the first days of this month the Swedes have made several attempts to drive the French from their lines. On the 14th their attack produced a very warm engagement. The Swedes were obliged to retire in great disorder.
POLAND.
Warsaw, 19th March.
Our armies are in motion in spite of the rigour of the season. Marshal Massena will no doubt begin here by a coup d'éclat. We are therefore in expectation of a battle soon, which may be general. The head-quarters of the grand army, it is thought, will be established at Prusnitz.
Letters from Vienna announce that the aid-de-camp of the king of Prussia, M. de Goetzen, still continues in that capital, where he has frequent conferences with the ministers, particularly with Count de Stadion, chief of the department of foreign affairs. On his part the Russian ambassador at Vienna continues to receive frequent couriers from the Russian head-quarters in Poland.
NEW-YORK, May 21.
We have received Cork papers to the 9th ult. (containing London dates to the 3rd) by the Olrey , capt. Hatch, from that port.
By the Washington, from Rochelle, we have received Paris papers to the 1st of April. The Argus, of March 31, contains a letter of Wm. Temple Franklin, grandson of the late Dr. Franklin, repelling the 'foul charges of the American Citizen,' that he had sold his grandfather's manuscripts to the British government, that they might be suppressed. He declares that the originals, with the copy prepared for the press, are now in the hands of his banker in London; and that they are not lost to the world, but will be published in a manner worthy his ancestor's great name,—that he had offered them to several eminent bookellers in London, but none would undertake to publish them,—signing as a reason that the period was not propitious for their publication, owing to the state of affairs in Europe, which occupied solely the public attention, so that no work of any extent would sell.
The Paris papers contain no additional Bulletins. Gen. Augereau had gone to the waters of Bareges, for his health.
[* A village of France, much frequented on account of its mineral baths.]
LONDON, April 3.
We have heard it from so many quarters, that it is impossible for us to doubt the fact, that Mr. Canning was negotiating to form a part of Lord Grenville's government, and that it was on the point of being carried into effect, even after the Catholic Bill was put forward. In that case, he would have been a supporter of that measure (as indeed he always was) and now in opposition; whereas he now sits on the Treasury Bench, and must be considered as an enemy to the claim of the Catholics.
We have good reason to believe, that a declaration has been made to the new ministers, from the highest quarter, that a dissolution of parliament, under no circumstances, shall take place!
It is generally reported that our new ministers have already projected some military movements, which it is hoped will at once harass the enemy, and give succour and support to our allies. The transport board has in consequence intimated to the usual contractors for providing transports, that it will soon be at liberty to treat for an unlimited number for three months service, and that the contract will not be limited to copper-bottomed ships. It is certainly the opinion of many distinguished military men, that while the enemy was kept so fully occupied by the vigorous movements of the Russians in Poland, and so much pressed by our brave ally as to be obliged to march to the grand army every soldier that could be removed from France,—this country might have taken the opportunity to deck out all the works at Boulogne, and annihilate the cock-boat flotilla there—an enterprise which would have produced incalculable benefit in depressing the arrogant views of the common enemy, and raising the confidence, and exciting the energies of other powers to assert their independence. We hope that whatever the project may be, ministers will keep it a profound secret till the blow be struck.
Splendid medals are making in commemoration of the battle of Maidan.
The Board of Admiralty was yesterday completed, as to its professional commissioners, in the appointments of admirals Gambier and Sir B. Bickerton, and Captain W. Poole. Mr. Ward, a relation of Lord Mulgrave, is also nominated to a seat; and another is kept open for the acceptance of Sir Evan Nepean. Mr. Barrow returns to the office of secretary, vice Mr. Tucker. The head of the board has not yet received the royal sanction. Is Lord Mulgrave to be locum tenens for a while, or will Vice-Mount Melville be placed there at once?
Capt. Kelly, from Malta, which he left the 26th February, reports, that the British had captured the Turkish Dardanelles.
Those strong castles guard the entrance of the strait, between the Archipelago and the sea of Marmora, the only passage from the Mediterranean to the Black Sea. It will be recollected that our previous advices, stated, that a large British and Russian force had failed from Sicily to commence operations against the Turks; and it is not improbable these fortresses would be their first object of attack.
Bos. Gen.
PARIS, March 17.
GRAND SANHEDRIM.
Last sitting.
We have given our readers an account of a sitting of the Grand Sanhedrim, held for the purpose of setting forth the religious principles of the Israelites on the infamous traffic of usury. In a preceding sitting, the assembly had taken into consideration the arts and trades, and converted into doctrinal decisions the duty and necessity of embracing them with alacrity; it was, in some measure, a consequence which preceded the principle itself: severe and industrious labours are to succeed amongst the Israelites, to forbid and idle expectations. Establishments, which will lead the way to the necessary measures for spreading amongst the Israelites a taste for the useful professions and the social virtues, will realize the salutary results prepared by the decision of the Grand Sanhedrim.
The last sitting of the Sanhedrim took place on Monday last, as we have already stated. A number of spectators of the highest respectability, bestowed on it a new degree of solemnity. Deputies from the Israelitish community of Frankfort were admitted & presented their credentials; they consisted of Mr. Solomon Treve, rabbin, and Mr. Hilderheimer, a man of letters; the second made an eloquent and appropriate
speech, in which he adhered formally, in the name of his constituents, to the doctrinal decisions of the Grand Sanhedrim of France and Italy—he expressed in it the warmest sentiments of gratitude for the divine goodness which had vouchsafed to cast a favourable look on the dispersed remains of Israel, and of admiration for the hero, the dread and love of the universe, Napoleon the Great. He also spoke with respect and devoutness of the enlightened and liberal prince under whom they had the happiness to live, the prince primate of Germany—he expressed the hope which his constituents entertained of seeing this sovereign, illustrious by his talents, his rank, and the esteem felt for him by Napoleon the Great, and still further occupy himself, with every thing calculated to improve and change the lot of the Israelites, in a town that he governs with so much wisdom, and in which he causes to flourish so successfully the arts, sciences and letters, that he encourages and cultivates so gloriously in his own person. The Sanhedrim were extremely satisfied with this step, and the speeches of their deputies, who received from the most distinguished personage a flattering reception, proportioned to the importance of their mission. The deputies from Holland admitted anew, delivered speeches, in which they expressed their sentiments of devotedness and adhesion.
The President answered both in Hebrew, by congratulating them on the step they had taken, the assembly on seeing them form a part of it, and himself to have this opportunity of addressing such distinguished co-religionists, of a community known by the piety of its inhabitants, by the persecutions they have undergone, and who were governed at present by a just and liberal prince, from whom the friends of humanity may hope for every thing—he congratulated himself, in short, on addressing co-religionists of a country in which for a long time past, an equal participation in the common rights of all men has rendered the Israelites as useful and industrious as the other citizens. The President then delivered a speech in French, which produced the liveliest impression on the assembly. In this speech the President expressed his sentiments of gratitude for the great man whom Providence had chosen to be the instrument of his benefits and miracles—he gave himself up to all the effusions of hope, on the future influence that this august assembly, and the measures to which it will give rise, will have over the future lot of his religionists. After having expressed the sentiments of eternal devotedness to all his colleagues who from the passages of the Pyrenees to the borders of the Mein, from the shores of the Adriatic to those of the Zuyder-see, have hastened at the voice of a great man to form a religious assembly, of which there is no similar one to be found in the annals of modern history, and speaking of the talents of his two assistants, he paid, in the name of the whole Sanhedrim, a just tribute of applause to the commissioners of his imperial and royal majesty, Messieurs Mole, Portalis, Jun. and Paquier, whose cares, generous zeal and encouraging indulgence have so powerfully contributed to the termination of the common labours and wishes. The speech of Mr. Cologny, assessor to the Sanhedrim, which he had written in Italian, at the time of the installation, and to which was added a translation by Mr. Furtado, worthy of the original, was distributed, as was also a religious speech, by the rabbin Cracovia, reporter of the commission of nine to the Sanhedrim, translated by Mr. Lyon Grandenhal, of Mentz. Mr. Furtado proposed that the assembly, before breaking up, should vote thanks to the president, for the manner in which he had discharged the important functions confided to him. This proposal was adopted without a dissenting voice.—The secretary, Mr. Michael Beer, then read a report of this last sitting, drawn up during its continuance, after which the president announced that the sittings of the Sanhedrim were closed. The enlightened men who were present at this solemnity, carried away from it, hopes founded on the reciprocal efforts which will be made to effect even the very last traces of a prejudice which has lasted too long. The ministers of the Christian religion will no doubt, as has already been frequently the case, put their hand to this philanthropic work, equally wished for by justice and reason, and which it belongs to a great man to accomplish. Amongst men of different religions no other difference will prevail than that of belief, which it is the province of the Almighty alone to decide on.
West-Indies.
Extract of a letter from Cape Francois, dated April 1.
"The commerce of this country is much more slackened now than ever it was during the latter time of Dessalines' despotic reign. By a decree of Gen. Christophe, the price of Coffee throughout his jurisdiction, is fixed at 25 fous, and it must be purchased from government only. The planters are not permitted to dispose of it to individuals. Beef, Pork, Wine, Oil, Soap, Gin, with several other articles usually shipped to this country, are selling for less than cost in America. In fact I do not see anything short of ruin staring those in the face who are so foolish as to adventure to this country in its present distracted state. The coast has been clear of privateers of late, and vessels dropping in every few days. Pétion is much more favourable to commerce than the petty tyrant who commands here."
NEW-YORK, May 22.
The Negroes at Barbadoes lately formed a plan of revolt, which was discovered just before the time it was intended to have carried it into execution, and 13 of the ringleaders have been shot.
Mer. Adv.
Capt. Shepherd, of the brig Ceres , from Guadalupe, informs that the day before he failed a British vessel from England, bound to Cape Francois, with a cargo of 200,000 dols. value, was brought into Pointe à Pitre by a French privateer.
A passenger in the same vessel informs that a vessel arrived there from St. Thomas the day before he failed, with intelligence that a French squadron out of Rochefort had taken the Cape of Good Hope.
Ib.
A letter from Port-au-Prince, dated the 23d April, says—That a few days previous, an en-
Domestic.
BOSTON, May 16.
In the Lydia, capt. Hill, from the North West Coast of America, John Rogers Jewett, and John Thompson, came passengers. They are the only survivors of the crew of the ship Boston, capt. John Balsey, the rest having been murdered by the natives on the coast. We have received a very detailed account of the loss of the Boston, and the recovery of the above two seamen; which shall be given in our next paper. Capt. Hill was in Columbia river, on the Pacific Ocean, after captains Lewis and Clark left on their return home; and saw some of the medals left by them with the Indians.
May 20.
FROM THE MEDITERRANEAN.
Capt. Atkins from Tarragona (Spain), informs that on the 25th March he learnt from a British vessel seven days from Algiers, "That the United States' frigate Constitution had arrived at Algiers from Tunis, and brought information that Sir Sidney Smith and Admiral Louis had taken Alexandria" (in Egypt) and afterwards proceeded to the Dardanelles."
* Perhaps mistaken for Gallipoli.
NEW-YORK, May 21.
A passenger in the Vigilant , from New Orleans, informs us, that a few days previous to his sailing, Gen. Wilkinson had despatched major Sparks, with a detachment of troops, to Fort Stoddert; but the Spanish Commandant would not permit them to pass the Mobile, and General W. had ordered them to return.
May 28.
A passenger in the Schr. Amazon , that arrived yesterday forenoon in 22 days from Trinidad, informs, that a few days before they sailed, a flag of truce arrived at Trinidad from the Main, with an account of the death of the Prince of Peace, occasioned by a kick from one of his high-mettled chargers. The news was received direct from Madrid.
Mer. Adv.
Capt. Babbidge, who arrived at Newburyport on Saturday from Kingston, says, he read in a Jamaica paper, that a ship of 24 guns, from N. Y. for St. Domingo, was fallen in with about the 1st of April, by the Squirrel (a privateer) of 13 guns, and after a running fight, the American succeeded in bearing off the sloop of war.
Ib.
Gen. William Eaton, the hero of Derne, is chosen Representative to the General Court of the commonwealth of Massachusetts, for the town of Brimfield.
Ib.
May 23.
We are informed by a gentleman from New Orleans, that a short time previous to his departure, Major Sparks who had been ordered by General Wilkinson to proceed with a detachment of the army to reinforce the garrison at Fort Stoddert and Fort Stephens in the Mississippi Territory, returned to that city in consequence of the refusal of the Spanish commandant at the mouth of the Mobile to permit him to pass with the force under his command. Major Sparks having left the detachment on the borders of Lake Ponchartrain had himself proceeded to head-quarters for further orders; and upon his arrival was directed to recall the whole of his force. The General at the same time declaring that he had then an opportunity of repelling the charges of his being a Pensioner of the Spanish Government, were he to consult his private interests in preference to the welfare of his country. Yielding, however, to the dictates of his patriotism, he had, with a magnanimity for which we took pride to himself, recalled the reinforcements destined for ports at the head of the Mobile, and prevented his government from being immediately involved in the horrors of warfare.
People's Friend.
We are sorry to learn by letters from Bilboa of the date of March 24, 1807, that the Spanish government has again required the quarantine of forty days on all American vessels arriving in Spain, in consequence of an arrival at Alicante, from Barnstable, of a vessel having two sailors on board with the highest symptoms of yellow fever. We understand that the cargoes of American vessels will be permitted to be discharged, and the captains to visit the Lazaretto to.
PHILADELPHIA, May 22.
We have received accounts from New Orleans to the end of last month. The report of Gen. Wilkinson being under arrest, is erroneous.
The General and Governor Claiborne, had received a Summons from the President, to attend the Trial of Col. Burr, and would sail for the United States, early in May.
Philad. Gazette.
WASHINGTON, May 25.
We understand that the President has received a letter from the Bey of Tunis, couched in terms of friendship towards the United States, and that information, by the same opportunity, was received at the Department of State from Col. Lear, of his having effected an entire adjustment of our differences with the Bey.
Nat. Int.
The President of the U. S. arrived at the seat of government on Saturday, the 16th.
NORFOLK, May 25.
The Wasp sloop of war remains still at her moorings near Grany Island, waiting the arrival, we presume, of Mr. Purvis.
We remark that a number of American vessels have been carried into Spanish ports in the Mediterranean, by French privateers, and also a number into the ports of Cuba. It has been said that the Spanish decree, as published here, is not a true translation; this may be the case, unknown to us, as we copied from the National Intelligencer. We inquire, however, to believe, the translation to be correct, as we have a file of the Paris Argus, one of which contains this decree.

The part of it that affects the commerce and interests of the country materially, is in the following words: "All merchandise defined for the harbor of England in her islands, should they be found on board neutrals, in like manner liable to confiscation. In short, his majesty means, by the present decree, to conform in every respect to the spirit of the one which he also, the emperor of the French, thought proper, on a principle of reciprocity, and for the honor of his crown, to promulgate under date of the 28th November, 1806."
Most of our readers will understand that the Argus is printed in English. Some have given a curious construction to the words "all merchandise defined for England or her islands," they say it means "English manufactures or goods." Curious indeed! English manufactures and goods, bound to England or her islands! Cools are not carried to New-Caledonia. Although we are inclined to think that the Spanish government will give us an explanation like that of the French minister of marine, yet the cruizers of France and Spain will continue their depredations on our commerce. By the way, one would think that our minister, general Armstrong, might have obtained a more satisfactory explanation, by this time, from Talleyrand himself.
The situation of the commerce of this country is truly alarming. France and Spain declare the ports and islands of England in blockade. The government of the U. S. is not disposed, it is believed, to resist these violations of our neutral rights, in consequence, as was foreseen and foretold, G. Britain retaliates, by capturing our vessels coming from the ports of France and Spain, as appears from what follows:
On Saturday evening, Cape Henry bearing west about a leagues distant, the Brig Augusta Mexicana, from Manilla, bound to Baltimore, was captured by the British frigate Melampus, the Bermuda sloop of war in company, and ordered under convoy of the latter vessel for Bermuda. The next day in sight of Cape Henry, the Melampus captured the Schooner Messenger, White, from Baltimore, bound to Barcelona. A passenger in one of the vessels, who favoured us with the above particulars, also informs us that these captures were made in consequence, as he was informed, of late instructions.
The Enquirer.
RICHMOND, 50th May.
TRIAL OF AARON BURR.
Circuit Court of the U. States for the 5th circuit and District of Virginia. Present JOHN MARSHALL, Chief Justice of the U. States, AND CYRUS GRIFFIN, Judge of the District of Virginia.
MONDAY, May 25.
The proceedings of Saturday were read. The names of the Grand Jury having been called over, they returned to their own chamber. In a few minutes they returned, and their names being called over, Mr. Randolph, their foreman, addressed the Court:
"May it please the Court! We have been here several days. We have found no presentments among ourselves. We shall be glad of a discharge."
Mr. Hay hoped, that the Court would not discharge them: he should perhaps have two indictments to send up to them in the course of the week. The Council for the Prosecution and the prisoner have agreed, that it is better not to do so, until all the important evidence, which is to be exhibited, has been actually obtained. General Wilkinson has certainly left New-Orleans; and may be expected within ten days, and at the largest calculation, before the rising of the court. Should he be however unfortunately detained, the Council for the Prosecution would then move for a special Court, before which time, there is every reason to hope that he may be here. In a case of this vast importance, it was impossible to doubt, that the Court was disposed to secure a full and satisfactory trial; and that the patriotism of the Grand Jury would prompt them patiently to wait, until they could be properly discharged.
Mr. Randolph. The Grand Jury, Sir, have every disposition to discharge their duty. They leave it to the court to decide when they may be dismissed.
Chief Justice had no doubt, that the Grand Jury were willing to make some sacrifice of their own convenience to the public benefit: that from the researches he had made since Saturday, he was still disposed to favour the opinion he had then expressed, that it was not necessary to call over the Grand Jury every day; but that this opinion was more the result of his reflections upon the principle of the case, than of any positive authorities on the subject.
Mr. Hay declared that he acquiesced in the opinion of the Court, without being understood to give a positive consent.
Chief Justice enquired on what day then would he with the Grand Jury to be called?
Mr. Hay. I shall not with them to be called, until Saturday; perhaps Monday next.
Chief Justice. On this day week then?
Mr. Randolph hoped that the Court if it were proper, would adjourn then to some future day.
Mr. Wickham stated that as several witnesses were attending at a considerable distance on the behalf of Col. Burr, it was proper to fix upon some particular day for calling the Grand Jury.
Mr. Hay replied that a motion might be made which would render their presence necessary even on that day.
Mr. Wickham requested, that before the G. Jury was adjourned, the Council for the U. S. would state the object of his motion.
Mr. Hay. The object of my motion is, to commit Aaron Burr on a charge of High Treason against the United States.—You will recollect, Sir, to have decided on a former case, that there was no sufficient evidence of an Overt Act to commit Aaron Burr for High Treason; and you recognized him for a misdemeanor only. Our evidence is now however more ample; we have new witnesses to bring before you; we have new depositions to read; & upon the strength of this additional testimony, I now move that Aaron Burr be committed on a charge of High Treason.
Mr. Wickham hoped that the motion may be made, and counsel be heard.
Mr. Hay. They may be assured, that they will be apprised of the application; but do they with me now to make it in the presence of the Grand Jury?
Mr. Burr. The gentleman mistakes the motion of my counsel. The object was not that the Grand Jury might hear the application, but to make the inquiry more manifest of mentioning such an application in the presence of the Grand Jury. While things are in this crisis, no measures ought to be taken to prejudice their minds; and while a Grand Jury is in panelled, it is improper to introduce the evidence before any other tribunal.
The Grand Jury were then requested to retire.
Mr. Hay. I now move you, Sir, that Aaron Burr, at present before the court, stand committed on the charge of High Treason against the U. States, on the evidence to be exhibited before you. This evidence is partly the same with that, which was exhibited on a former examination of the prisoner; but a considerable part of it is new and has not been laid before you.
Mr. Wickham. What kind of evidence is it? viva voce testimony?
Mr. Hay. In cases where the witnesses are here they will be personally brought before the court; but where they are not, their depositions will be produced and read.
Mr. Bots. We may have cause of much regret that timely notice of this application was not given. From the engagements between the prosecuting and defending counsel, to interchange communication on the points intended to be discussed, we had a right to expect, that upon a subject like this, involving questions new and important, we should not have been taken by surprise. Indeed from the common courtesy and candor of the office of the attorney we might have calculated on the previous communication.
Mr. Hay. If there be the least surprise in the case, Sir, I am willing to waive my motion till to-morrow, at Mr. Bots's request. The counsel for the prisoner shall never have it to say, that we have taken them off their guard. It is to be understood however, if this enquiry be postponed, that Aaron Burr must be considered to stand before the court on a charge of High Treason.
Mr. Bots. Not one moment. We may sustain inconveniences by being thus suddenly called upon to act without reflection, but we should experience greater by a day's delay.
The motion is to divest the Grand Jury of the office which the constitution and laws have appropriated to them, and to devolve it on the court.
There is a great objection to the examining and committing power by a high law officer, who is to preside upon the trial. He is obliged previously, without a full hearing, to commit himself upon the case of the accused. Every one will agree that a judge if possible, should come to the office of trial as free from prepossession as if he had never heard of the case before; yet, as the grand inquest is not always embodied, it often becomes necessary that the judge should enquire into the offence and commit, to prevent the escaped of the offender before the inquest could be legally organized. The examining office of the judge, in these cases, justified by the necessity of the case; but the necessity does not here exist.
This novel mode of proceeding, if carried into effect, would give the attorney for the U. S. the chance of procuring an opinion from the court unfavorable to Col. Burr—failing in that chance he would then betake himself to his only legal one before the Grand Jury.
Why should this court step out of its ordinary course to forestall or influence the deliberations of the Grand Jury.
The object of the motion is without precedent or reason, against all legal principle, and would be most oppressive in its consequences. The history of our criminal jurisprudence yields no instance of such a motion during the session of a Grand Jury. It is unreasonable and against principle that the functions of the inquest should be suspended, for the court to assume them. It is not only oppressive, but of a piece with the long course of oppression, which has been practised upon the gentleman whom I advocate.
We might with propriety have moved to discharge Col. Burr from the recognizance already given.
The laws of Congress have adopted our rules and practice in the state, in proceedings upon indictments for misdemeanors. You were of opinion, you will remember, Sir, that nothing more than probable cause of suspecting a misdemeanor appeared against Col. Burr. Even after an indictment, in Virginia, for a misdemeanor, nothing more than a summons can go against the indictee. No court of the commonwealth ever permitted a capias to go in the first instance, unless the case passed sub silentio now arrest and bail are utterly incompatible with a summons; and surely if an indictee cannot be arrested, one merely suspected cannot be held to bail.
The conduct of judge Chase in awarding a capias was the subject of one of the charges in his impeachment. Mr. Hay vehemently and ably contended that a summons only ought to have gone against caller.
I know that the court may have an impression that I am wandering from the subject. I will soon show what application the past recognizance has to the motion now to examine the witnesses to commit for treason.
Notwithstanding Col. Burr was committed upon a charge of misdemeanor, when under the state laws he could not have been committed, a public prejudice has been excited against the lenity of the measure, and attempts have been set on foot through newspapers and general clamour, to intimidate every officer who might have any concern in the trial. This public prejudice would be increased by the present motion rather than abated, if the necessary explanation should not be made. The multitude around us must hear what is passing, and we cannot submit to a course, which would further invect the public mind with the poison already so plentifully infused.
The persecution of Col. Burr has hitherto been without a check. The seizure of his friends, his papers and his person; the activity of the satellites of power against him; the use of the low engines of a military despotism in different departments of the territory of the United States; the total disregard of his rights and all law in bringing him hither, ought to end the list of wrongs of which the country has to complain. It was rumoured that he would not appear, but he has appeared. He came on Friday, on Saturday, and on Monday to meet his accusers. He did not ask one hour. The government has had the necessary time and means of preparation, and they ought to have been prepared. Yet our purpose was to await the pleasure of the prosecution, unless that pleasure should be found to be oppressive. We are told now, though, that the indictment cannot go up, and that in the mean time an inquisition must be held.
I will not weary on the patience of the court. I set down in anxious solicitude that the success of the motion may not add to the catalogue of Col. Burr's grievances.
The Chief Justice enquired whether the counsel for the prosecution intended to open the case more fully.
Mr. Hay had not intended to have opened it more fully. He could not himself entertain a doubt, that if there was sufficient evidence produced to commit Aaron Burr, the court had completely the right to do it. Mr. Bots himself had not pretended to deny it; for his whole argument had turned around upon the question, not whether the court had the right, but whether it was expedient for them now to exercise it. It is certainly proper to do it, upon the evidence only.
If that be sufficient, the court could surely entertain no doubts on the subject.
Let the court once admit as an exception to this general power, that the Grand Jury was in session, and they will establish a precedent that is fraught with the most dangerous consequences. It is easy to see through the object of the opposite counsel when they press this principle.
Mr. Wickham. Wickham. It would certainly have been an accommodation to us, to have had this motion put off until to-morrow. We come into this discussion completely off our guard, completely unprepared, and certainly it could have been nothing but forgetfulness, which has prevented the opposite counsel from giving us timely notice of the motion they intended to bring forward. There was an agreement made between us in the very hearing of the court, that if any motion was to be brought forward on either side, they were to give timely notice to the opposite party of the object of their proposition. I am sorry that they have departed from this agreement in the present instance; but if I have not forgotten every principle of law, that I ever learnt, or every principle of common justice, this motion cannot be supported.
Mr. Hay. The gentleman will permit me to set him right. He might have relied upon my candor, that when I was about to lay my indictments before the Grand Jury, I would have given him timely notice of my intention. They might then have moved for the instructions to the Jury, which they are so anxious to obtain. This was the only understanding between us on the subject; and our agreement extended no farther; much less to the particular case before the court: On the other hand, there was a very strong reason against our making this communication. I feel no hesitation, Sir, in assigning this reason; and I hope that it will wound neither the feelings of the prisoner nor of his counsel. I did not intend to receive myself called upon to be thus explicit.—The fact is this, Mr. Wilkinson is known to be a material witness in this prosecution. His arrival in Virginia might be announced in this city, before he himself reached it. I do not pretend to say, what effect it might produce upon Col. Burr's mind; but certainly Col. Burr would be able to effect his escape, merely upon paying the recognizance of his present bail.—My only object then, Sir, was to keep his person safe, until we could have investigated the charge of Treason; and I really did not know, but that if Col. Burr had been previously apprized of my motion, he might have attempted to avoid it. But I did not promise to make this communication to the opposite counsel; because it might have defeated the very end for which it was intended. I have said the only pledge I gave, merely related to the indictments to be sent up to the Grand Jury.
Mr. Wickham observed that he knew the gentleman too well not to doubt that he had misapprehended him. But what could he think of the motion that had been made? It was a strange Epistle which he weaved into his tale. It may be good poetry indeed, but it was not certainly proper matter of argument. Every man who hears me; every man who has ever read on the subject, must know what are the feelings which dictate these suspicions of Col. Burr. Some mortification was felt by his enemies (not that the attorney for the U. S. himself even felt it) that he did return here for trial. But here Col. Burr is, and will always be, to meet every kind of charge that may be brought against him.—The gentleman will not open his case; and why? Because when he has heard our arguments against his motion, he may come out with the adverse arguments against us.—If they do not choose to open their case, we hope the court will grant us the right to make a conclusive reply.
Mr. Hay. Then, Sir, we will produce the evidence.
Here a defultory conversation ensued upon the order of proceeding.
After some conversation the Chief Justice determined that Col. Burr's counsel should proceed with the argument.
Mr. Wickham read from the act of Virginia, page 108 of the Revised Code, sect. 8, as bearing upon this case.—He observed that the present motion was also unprecedented in a system of criminal jurisprudence which was upwards of 100 years old. If the motion be a proper one, there must be some precedents in this country or in England.—But if there be none such, and the gentlemen have not produced them, it is but fair to infer that there are none such. It is therefore obvious that the present motion is contrary to the laws of Virginia as well as to the common law.
The attorney for the U. S. has said that he can take no final measures till Gen. Wilkinson is present. His deposition is greatly relied upon. Now, Sir, I refer to you as well as the S. Court of the U. S. where you presided, that the facts contained in that deposition (if facts they were) did not amount to Treason; but to a probable cause of the misdemeanor only. As to Gen. Wilkinson's, it is not relied on. The sole reliance of the prosecution is upon Wilkinson's. Of course, if Wilkinson himself were present, he could prove nothing new. But if Gen. W. is so material a witness, why are they not prepared to go with him before the Grand Jury?—Why is not Gen. Wilkinson here? He is a military officer, bound implicitly to obey the head of the government. In the wars of Europe a General has been known to march the same distance at the head of his army in a shorter time than Gen. Wilkinson has had to pass from N. Orleans to this place. He is bound to go whenever the government directs him; to march to Mexico; to invade the Floridas; or to come to this city. Perhaps there are other reasons for his not coming. But let us not press this subject.
What, Sir, is the tendency of this application? What is the motive? I have no doubt that the gentlemen mean to act correctly. I wish to call no imputations. But the Counsel and the Court will know that there are a set of busy people (not I hope employed by the government) who thinking to do right, are laboring to ruin the reputation of my client. I do not charge the government with this attempt; But the thing is already done. Attempts have been made. The press from one end of the continent to the other has been enlisted on their side; to enlist prejudices against col. Burr. Prejudices? yes; they have influenced public opinion; by such representations, and by persons not passing between the prisoner & his country, but by exparte evidence and mutilated statements.—Ought not this court to bar the door as far as possible against such misrepresentations? to shut every effort to excite further prejudices, until the case is decided by a sworn jury, not by the floating rumours of the day, but by the evidence of sworn witnesses?—The attorney for the U. S. offers to produce his testimony; no doubt the most violent; no doubt the least impartial which he can select; testimony which is perhaps to be met and overthrown by superior evidence.—Do they, besides these things, with that the multitude around us should be prejudiced by garbled evidence? Do precedents justify such a course as this?—"Produce your witnesses," they may say. No; Sir, Colonel Burr is ready
for a trial; but he wishes for that trial to come before a jury.—I do not pretend to understand the motives which led to those things; it is enough that they produce the same mischievous effects upon ourselves. Should government hereafter wish to oppress any individual; to drag him from one end of the country to the other by a military force; to enlist the prejudices of the community against him; they will pursue the very same course which has now been taken.
Col. Burr is here ready for trial. They admit that their testimony is not sufficient to bring him before a Grand Jury; and of course to found an indictment against him. Why then is this partial evidence to be exhibited on a motion for commitment? It is to nourish the prejudices against him.—Will they then press a motion like this? Be it so, Sir, I trust that the court will stand between the prisoner and his pursuers; for every man is presumed to be innocent, before he is found guilty.
Mr. Wirt. May it please your honors. The attorney for the United States believing himself possessed of sufficient evidence to justify the commitment of A. Burr for High Treason, has moved the court to that effect. In making this motion he has merely done his duty; it would have been unpardonable in him to omit it. Yet the counsel in the defence complain of the motion and of the want of notice. As to the latter objection, it must be palpable that the nature and object of the motion rendered notice improper. The gentlemen would have had the attorney to announce to the party concerned, that he was, at length, in possession of sufficient evidence to justify his commitment for High Treason:—and that being apprehensive he might not be disposed to stand this charge, he intended, as soon as the accused came into court next morning, to move his commitment. This would really be carrying politeness beyond the ordinary pitch: it would not have deserved the name of candour, Sir; it would in fact, have been an invitation to the accused to make his escape. But as gentlemen seem to doubt, with an air at least of earnestness, the propriety of this motion at this time, and express their regret that they have not had time to examine its legality, the attorney has offered to waive the motion until to-morrow, to give gentlemen the opportunity which they profess to desire; but no, Sir; they will not even have what they say they want, when offered by the attorney. Another gentleman, after having demanded why this motion was made, and by that demand drawn from the attorney an explanation of his motives, has been pleased to speak of the attorney's statement of his apprehensions as "an episode" which "although good poetry," he says, "had better have been left alone, when such serious matters of fact, were in discussion." It may be an episode, Sir, if the gentleman pleases; he is at liberty to consider the whole trial as a piece of epic action, and to look forward to the appropriate catastrophe. But it does not appear to me to be very fair, Sir, after having drawn from the attorney an explanation of his motives, to complain of that explanation: if a wound has been inflicted by the explanation, the gentlemen who produced it, should blame only themselves. But, Sir, where is the crime of considering Aaron Burr as subject to the ordinary operation of the human passions? Towards any other man, it seems, the attorney would have been justifiable in using precautions against alarm and escape; it is only improper when applied to this man. Really, Sir, I recollected nothing in the history of his deportment which renders it so very incredible that Aaron Burr would fly from a prosecution. But at all events, the attorney is bound to act on general principles, and to take care that justice be not again every one accused, by whatever name he may be called or by whatever previous reputation he may be distinguished.
This motion, however, it seems, is not legal at this time, because there is a Grand Jury in session. The amount of the position is, that although it be generally true, that the court possesses the power to hear and commit, yet if there be a Grand Jury, this power of the court is suspended; and the commitment cannot be had unless, in consequence of a presentment or bill of indictment, found by that body. The general power of the court being admitted, those who rely on this exception should support it by authority, and, therefore, the loud call for precedents which we have heard from the other side, comes improperly from that quarter. We ground this motion on the general power of the court to commit: let those who say that this power is destroyed by the presence of a Grand Jury, show one precedent to countenance this original and extraordinary motion. I believe, Sir, I may safely affirm, that not a single reported case or dictum can be found, which has the most distant bearing toward such an idea. Sir, no such dictum or case ought to exist; it would be unreasonable and destructive of the purposes of justice. For if the doctrine be true at all, that the presence of a Grand Jury suspends the power to hear and commit by any other authority, it must be uniformly and universally true; in every other case as well as this, and in every case which can be proposed while a Grand Jury is sitting. Now, Sir, let us suppose, that immediately on the swearing of this Grand Jury and their retiring to their chamber, Aaron Burr had been for the first time brought to this town; the members of the evidence scattered over the continent; the attorney, however, in possession of enough to justify the arrest and commitment of the accused for High Treason, but not enough to authorize a Grand Jury to find a true bill. What is to be done? The court disclaims any power to hear and commit, because there is a Grand Jury:—The Grand Jury cannot find a true bill, because the evidence is not sufficient to warrant such a finding; the natural and unavoidable consequence would be, that the man must be discharged. And then, according to Mr. Wickham's principle of ethics, that every man is supposed to intend the natural consequences of his own acts, the gentlemen who advocate this doctrine intend that Aaron Burr shall be discharged without a trial.
I beg you, Sir, to recollect what was said by gentlemen the other day, when you were called upon to give an additional charge to the Grand Jury. You were told, that a Grand Jury should require the same evidence to find a true Bill, which a Petit Jury would require to convict the prisoner:—Connect this principle with the doctrine in question: the sitting of the Grand Jury suspends all power to commit by any other body—and the Grand Jury, cannot find a bill, unless on evidence, on which they would convict as a Petit Jury: connect these two principles and consider the immaturity of evidence which always exists at the period of arrest and commitment: and the sitting of the Grand Jury, instead of being a season of admonition and alarm, becomes a perfect jubilee to the guilty.
But it is said, that this motion is "an attempt to divest the constitutional organ of its just and proper power." I believe, Sir, it was never before heard, that an application to commit for safe-keeping was an encroachment on the power of the Grand Jury. Would the gentleman have us to address this motion to the
Grand Jury? They might as well propose that we should submit the bill of indictment to the court and desire them to say, whether it is a true bill or not. This would indeed be the "divesting of powers" of which the gentleman complains. As it is, Sir, there is no manner of collision between the power which we call upon the court to exercise and the proper power of the Grand Jury. The justices arrest and commit for safe-keeping; then comes the function of the Grand Jury to decide on the truth of the indictment exhibited against the prisoner. The two acts are distinct in point of time and totally different in their nature and objects.
But it is said that "there is great inconvenience in submitting a great law officer to the necessity of expressing an opinion on the crime on a motion like this;"—"that the judge, like the juror, should come to the trial with his mind pure and unbiased." This argument does not apply to the legality of the power which we call upon the court to exercise: it goes merely to the expediency of exercising this power; and if the argument be true the court ought never to commit; whether the grand jury be sitting or not.—This, however, Sir, is a matter for legislation, not for judicial consideration. Whenever the legislature shall decide, by the force of this argument, that the court which commits shall not sit on the trial in chief, a motion like this will become improper; at present, however, the legislature has left this power with the court; and we claim its exercise for considerations of the most serious importance to truth and justice.
But, Sir, we are told that this investigation is calculated to keep alive the public prejudices & we hear great complaints about these public prejudices—the country is represented as being filled with misrepresentations and calumnies against Aaron Burr—the public indignation on it is said is already sufficiently excited: This argument, also, Sir, has no application to our right to make this motion: it does not affect the legality of our procedure.—But if the motion is likely to have this effect, we cannot help it—no human institution is free from inconveniences—the court we hold is a legal one—without it a necessary one—we think it a duty. It is no answer to us then to say that it may produce inconveniences to the prisoner. But let us consider this mournful tale of prejudices and the likelihood of their being excited by this motion. Sir, if Aaron Burr be innocent, instead of resisting this motion he ought to hail it with triumph and exultation. What is it that we propose to introduce? Not the rumours which are floating through the world;—not the talk of the multitude—nor the speculations of news-papers:—but the evidence exculpatory as well as accusatory shall come before you—instead of exciting, this is the true mode of correcting prejudices—the world which it is said has been misled and inflamed by falsehood, will now hear the truth—let the case come out—let us now know how much of what we have heard is false, how much of it true—how much of what we feel is prejudice; how much of it is justified by fact: who ever before heard of such an apprehension as that which is professed on the other side? Prejudice excited by evidence! Evidence, Sir, is the great corrector of prejudice. Why then does Aaron Burr shrink from it? It is strange to me that a man who complains so much of being without cause illegally seized and transported by a military officer, should be afraid to confront this evidence. Evidence can be promotional only of truth—I repeat it then, Sir—why does he shrink—why does he shrink from the evidence? The gentlemen on the other side can give the answer. —Our Govt. we are ready to introduce that evidence.
Permit me now, Sir, to turn to the act of Assembly which has been read by Mr. Wickham. Into what embarrassment must the ingenious and vigorous mind of that gentleman have been driven, before he would have taken refuge under this act of assembly? It is but to read it, to see that it has no manner of application whatever to this motion: that it applies to the case of a person already committed—declaring that such person shall be bailed if not indicted at the first term after his commitment; and discharged if not indicted at the second term. [Revised Code by Pleasants and Pace. 108.—§ 5.]
"When any person committed for treason"—Now, Sir, is Aaron Burr committed for treason? If not it is obvious that the clause has no manner of application to him. Why, Sir, the object of this motion is to commit him. Gentlemen must have been in strange confusion when they resorted to this law.
Mr. Wickham asks if general Wilkinson be a material witness, why he is not here? "Who is general Wilkinson?" says that gentleman? is he not the instrument of the government bound to a blind obedience?"—I am sorry for this and many other declamatory remarks which have been unnecessarily and improperly introduced—but the gentleman assures us that no imputation is meant against the government—Oh no Sir, Col. Burr, indeed, has been oppressed—has been persecuted—but far be it from the gentleman to charge the government with it.—Col. Burr, indeed, has been harassed by a military tyrant who is "the instrument of the government, bound to a blind obedience,"—but the gentleman could not by any means be understood as intending to insinuate aught to the prejudice of the government.—The gentleman is understood, Sir; his object is correctly understood. He would direct the public mind from A. Burr and point it to another quarter. He would too, if he could, shift the popular displeasure which he has spoken of, from A. Burr to another quarter. These remarks were not intended for your ear, Sir; they were intended for the people who surround us—they can have no effect upon the mind of the court—I am too well acquainted with the dignity, the firmness, the illumination of this bench to apprehend any such consequence. But the gentlemen would balance the account of popular prejudices—they would convert this judicial enquiry into a political question—they would make it a question between Thomas Jefferson and A. Burr.—The purpose is well understood, Sir, but it shall not be served. I will not degrade the administration of this country by entering upon their defence. Besides, Sir, this is not our business—at present we have an account to settle (not between A. Burr and Thomas Jefferson—but) between A. Burr and the laws of his country. Let us finish his trial first.—The administration too will be tried before their country—before the world—they, Sir, I believe, will never shrink either from the evidence or the verdict.—Let us return to A. Burr.—"Why is not Gen. Wilkinson here?" Because, Sir, it was impossible in the nature of things for him to be here by this time. It was on the first of April, Sir, that you decided on the commitment of A. Burr for the misdemeanor; until that decision was known, the necessity of summoning witnesses could not be ascertained; Gen. Wilkinson is the commander in chief of the American troops in a quarter where his presence is rendered important by the temper of the neighborhood; to summon him on the mere possibility of commitment, would have afforded a ground of clamor, perhaps a just one, against

the administration. The certainty that A. Burr would be put upon his trial, could not have been known at Washington till the 5th or 6th of April. Now, if the gentlemen on the other side make a slight calculation; Orleans is said to be 15 or 1600 miles from this place—suppose the U.S. mail travelling by a frequent change of horses and riders, a hundred miles per day, should reach Orleans in 17 days from the Federal City; it would be the 24th or 25th of April (putting all accidents out of the question) before Gen. W. could have received his orders to come on; since that time until this, he has had thirty days to reach Richmond. Could a journey of 15 or 1600 miles be reasonably performed in thirty days; who can bear a journey of fifty miles per day for thirty days together? But, sir, Gen. W. is not here; due means have been used to bring him here, his materiality is ascertained by his affidavit and the attorney does not choose to send up the indictment in his absence. But we admit it seems that we are not ready to make good our charge. In my opinion there is evidence enough to prove the treason independent of Gen. Wilkinson. But it is important in every point of view that that gentleman should be here; it is important to his own reputation; it is important to the people of the U.S. that he should be here; and on the part of the Grand Jury. Sir, there is no calculating what inferences, unfavorable to the prosecution might be drawn from the mere circumstance of his absence. The attorney is therefore in my opinion very right not to hazard the justice and the fair trial of this case, by sending up the indictment in Gen. Wilkinson's absence.
But it seems that Wilkinson's affidavit has been already decided to have no relation to the charge of treason. To what Gen. Wilkinson's affidavit tended while it was in the hands of the Attorney, or connected only with that of Gen. Eaton, is no proof of what its tendency may be now in connexion with the great mass of additional testimony which we have collected. Sir, we say that it is the key stone which binds the great arch of evidence now in our possession. As to sending up the indictment, it is out of the question. Truth and justice require that it should not now be sent up. But we hope, sir, that the motion to commit Aaron Burr will be received, because we think it a legal measure and a just and necessary measure of precaution.
(Debate to be Continued.)
TUESDAY, May 26.
The court delivered the following opinion on Mr. Hay's motion for commitment:
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 U.S. 2ndly: 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 U.S., only change the mode of proceeding. If a doubt can exist respecting it, that doubt arises from the omission in the laws of the U.S. 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 Col. 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 account most persons, and the judicial act contemplates it in this light. They have cognizance 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 recognizance, and against whom the attorney for the United States does not choose to proceed, and yet the 33d sect. 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 recognizance, and the court passes away without taking any order respecting him, he is discharged. A new recognizance, 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 cognizance, 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 U.S. for in cases of the character of this, 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 U.S. 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 recognizance 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 subject for the consideration
of those who make the motion, rather than of the court, and others go to the circumlocution 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 Col. 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, Col. Burr stood so far as respected his legal liability to have the charge repeated, in precisely the same form 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 judgement 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 U.S. of the right to make his motion. If he were 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 & 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 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 U.S. to proceed with this motion, it is the opinion of the court, that he may open his testimony.
Mr. Hay then observed that he was struck with the observation of the court relative to "publications;" and he would attempt, if possible, to make some arrangement to obviate that inconvenience. The two counsels retired to consult for this purpose. They returned in a short time, when Mr. Hay observed, that they could agree upon no arrangement. Col. B. had refused to give additional bail; and he himself would acquiesce in no plan which did not secure his personal attendance. However he hoped that some arrangement might be made before the next day.
WEDNESDAY, May 27.
The proceedings on this day were extremely interesting; but are of too great a length to be detailed at present. Indeed that part of it which embraces the evidence given in, are for obvious reasons improper to be published in this stage of the prosecution.
Mr. Hay commenced with stating, that all hope of an arrangement with Col. B.'s counsel to secure his person, and to avoid the impropriety of a public examination, was at an end. Col. Burr would not consent to give bail on the charge of treason; and Mr. H. read a letter from his counsel to that effect. He should, therefore, proceed to an examination of the testimony. In doing this, he should observe a chronological order: take the conspiracy at its earliest crisis, and introduce the events as they subsequently arose.
An interesting discussion took place upon the propriety of this arrangement. Mr. B.'s counsel protested against it. They contended that there were two things to be proved: 1st. An Overt Act of a Treasonable conspiracy; 2d. That Col. B. was connected with it. If the first wanted proof, the last was nugatory. They contended, therefore, that the Overt Act ought first to be proved; before any other evidence was exhibited as to the intention or the plan.
The Chief Justice left the order of the evidence to the judgment of the attorney of the U.S.
Mr. Hay then offered Gen. Wilkinson's affidavit to be read: When a long discussion was entered into on the principles of evidence. The Chief Justice said that the most proper course was first to introduce the evidence as to the overt act, & that Gen. Wilkinson's affidavit was not at that time to be read.
Mr. Hay then called Peter Taylor and—Albright, the first was Blannerhasset's gardener, the other had worked on his island. Of their testimony it is for the present improper to make any statement. They were succeeded by a letter partly in cypher and partly in German addressed to a person in New Orleans; which Mr. John Brown (former secretary to Gen. Marshall on his embassy to Paris) and Mr. Hubner a most respectable German merchant of this city, were sworn to interpret to the best of their abilities, this interpretation to be presented to the Court to-morrow.
Mr. Hay then brought forward an affidavit of one Dubas, a sergeant in the army of the U.S. This affidavit was represented by the prosecution to be of the greatest importance; but was objected to by Mr. B.'s counsel on the ground of informality: The affidavit appeared on its face to be taken before one Cenas, who signed himself a magistrate of the Town of Orleans. This signature was succeeded by Gov. Claiborne's verification of the fact, on one day after the date of the certificate. But there was no caption to the affidavit, as "N. Orleans Sct." nor any mention made at the foot of it of the place where it was taken.
A long argument ensued upon its admissibility; and the Court adjourned without giving any opinion.
THURSDAY, May 28.
Same Judges present as yesterday. The proceedings of yesterday, were read. The Grand Jury appeared in court, and their names being called over, they were adjourned till to-morrow 10 o'clock.
William Duane, Esq. appeared as a witness for the U.S. Luther Martin, Esq. appeared as Counsel for Mr. Burr. He enquired of the court, whether he should qualify?
Chief Justice. It is the usual form; but, it is not absolutely material. It may be dispensed with. Mr. Martin. I did suppose so; and as I am unwilling to take up the time of the court—
The court then proceeded to the consideration of the point made yesterday, relative to Dubas' affidavit. A desultory conversation ensued between the counsel and the Bar, on the proceedings before the Supreme Court of the U.S. and on a case quoted from Washington's Reports.
Mr. Martin observed, that in fact this point had not
been made before the Supreme Court in Washington.
Mr. Hay. It seems that the able and intelligent counsel who were employed for the U.S. did not deem it necessary to state this objection. It passed sub silentio . It was not once noticed, even in the material case of Gen. Wilkinson's affidavit. Why was it neglected? or why did the able and zealous counsel, who certainly spared no exertions in the cause of their clients, omit to raise this very objection to the form of authentication?
Mr. Martin. Although I was counsel in these cases before the Supreme Court of the U.S. I am confident that this objection was never raised. Gen. Wilkinson was known to be in New Orleans, and the magistrate who certified his deposition, was known to have been duly commissioned. In fact the other objections to that affidavit were so material, that they were thought to be amply sufficient. This one escaped our notice.
The Chief Justice then pronounced the opinion of the court, in the following words:
On the part of the United States, a paper purporting to be an affidavit has been offered in evidence, to the reading of which two exceptions are taken:
1st. That an affidavit ought not to be admitted, where the personal attendance of the witness could have been obtained; 2dly. That this paper is not so authenticated, as to entitle itself to be considered as an affidavit.
That a magistrate may commit upon affidavits, has been decided in the Supreme Court of the United States, though not without hesitation. The presence of the witness to be examined by the committing justice confronted with the accused, is certainly to be desired; and ought to be obtained, unless considerable inconvenience and difficulty exists in procuring his attendance. An ex-parte affidavit shaped, perhaps, by the person pressing the prosecution will always be viewed with some suspicion and acted upon with some caution, but the court thought it would be going too far to reject it altogether. If it was obvious that the attendance of the witness was easily attainable, but that he was intentionally kept out of the way, the question might be otherwise decided.
But the particular case before the court does not appear to be of this description. The witness resides at a great distance; and there is no evidence that the materiality of his testimony was known to the prosecutors or to the Executive in time to have directed his attendance. It is true that general instructions, which would apply to any individual, might have been sent, and the attendance of this or any other material witness obtained under those instructions; but it would be requiring too much to say, that the omission to do this ought to exclude an affidavit. This exception, therefore, will not prevail.
The 2d is, that the paper is not so authenticated, as to be introduced as testimony on a question, which concerns the liberty of a citizen.
This objection is founded on two omissions in the certificate.
The first is, that the place at which the affidavit was taken does not appear;
The second, that the certificate of the governor does not state the person who administered the oath to be a magistrate, but goes no further than to say, that a person of that name was a magistrate.
That, for aught appearing to the court, this oath may or may not in point of fact have been legally administered, must be conceded.
The place, where the oath was administered, not having been stated; it may have been administered where the magistrate had no jurisdiction, and yet the certificate be perfectly true. Of consequence there is no evidence before the court, that the magistrate had power to administer the oath and was acting in his judicial capacity.
The effect of testimony may often be doubtful; and courts must exercise their best judgment in the case, but of the verity of the paper, there ought never to be a doubt. No paper writing ought to gain admittance into a court of justice as testimony, unless it possesses those solemnities which the law requires. Its authentication must not rest upon probability, but must be as complete as the nature of the case admits of. This is believed to be a clear, legal principle. In conformity with it, is, as the court conceives, the practice of England and of this country, as is attested by the books of forms; and no case is recollected, in which a contrary principle has been recognized. This principle is in some degree illustrated by the doctrine with respect to all courts of a limited jurisdiction. Their proceedings are erroneous, if their jurisdiction be not conclusively shown. They derive no validity from the strongest probability that they had jurisdiction in the case; none certainly from the presumption that being a court, a usurpation of jurisdiction will not be presumed. The reasoning applies in full force to the acts of a magistrate whose jurisdiction is local. Thus in the case of a warrant, it is expressly declared, that the place where it was made ought to appear.
The attempt to remedy this defect by comparing the date of the certificate given by the magistrate, with that given by the governor cannot succeed. The answer given at bar to this argument is conclusive. The certificate wants those circumstances which would make it testimony, and without them no part of it can be regarded.
The second objection is equally fatal. The Governor has certified that a man of the same name with the person who has administered the oath is a magistrate, but not that the person who has administered it, is a magistrate.
It is too obvious to be controverted, that there may be two or more persons of the same name, and, consequently, to produce that certainty which the case readily admits of, the certificate of the Governor ought to have applied to the individual who administered the oath. The propriety of this certainty and precision in a certificate, which is to authenticate any affidavit to be introduced into a court of justice, is so generally admitted, that I do not recollect a single instance in which the principle has been departed from.
It has been said that it ought to appear, that there are two persons of the same name, or the court will not presume such to be the fact. The court presumes nothing. It may or may not be the fact, and the court cannot presume that it is not. The argument proceeds upon the idea that an instrument is to be disapproved by him who objects to it, not that it is to be proved by him who offers it. Nothing can be more repugnant to the established usage of courts.
How is it to be proved that there are two persons of the name of Cenas in the territory of Orleans? If with a knowledge of several weeks, perhaps months, that this prosecution was to be carried on, the executive ought not to be required to produce this witness, ought the prisoner to be required, with the notice of a few hours to prove that two persons of the same name reside in New Orleans?
It has been repeatedly urged that a difference exists between the strictness of laws which would be applicable to a trial in chief and that which is applicable to a motion to commit for trial.
Of the reality of this distinction, the present controversy affords conclusive proof. At a trial in chief, the accused possesses the valuable privilege of being confronted with his accuser. But there must be some limit to this relaxation & it appears not to have extended so far as to the admission of a paper, not purporting to be an affidavit and not shown to be one.
When it is asked whether every man does not believe that this affidavit was really taken before a magistrate; it is at once answered that this cannot affect the case. Should a man of probity declare a certain fact within his own knowledge he would be credited by all who knew him, but his declaration could not be received as testimony by the judge who firmly believed him. So a man might be believed to be guilty of a crime, but a jury could not convict him, unless the testimony proved him to be guilty of it. This judicial disbelief of a probable circumstance does not establish a wide interval between common law & common sense. It is believed in this respect to show their intimate union.
The argument goes to this, that the paper shall be received and acted upon as an affidavit, not because the oath appears to have been administered according to law, but because it is probable that it was so administered.
This point seems to have been decided by the constitution:
"The right of the people," says that instrument "to be secure in their persons, houses, papers & effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched & the persons or things to be seized."
The cause of seizure is not to be supported by a probable oath, or an oath that was probably taken, but by oath absolutely taken. This oath must be a legal oath; and if it must be a legal oath, it must legally appear to the court to be so. This provision is not made for a final trial; it is made for the very case now under consideration. In the cool and temperate moments of reflection, undisturbed by that whirlwind of passion with which in those party conflicts which most generally produce acts or accusations of treason, the human judgement is sometimes overthrown, the people of America, have believed the power even of commitment to be capable of too much oppression in its execution to be placed without restriction, even in the hands of the national legislature. Shall a Judge disregard those barriers which the nation has deemed it proper to erect?
The interest, which the people have in this prosecution, has been stated; but it is firmly believed, that the best and true interest of the people is to be found in a rigid adherence to those rules, which preserve the fairness of criminal prosecutions in every stage.
If this was a case to be decided by principle alone, the court would certainly not receive this paper. But if the point is settled by decisions, they must be conformed to.
It has been said to be settled in the Supreme Court of the United States by admitting the affidavit of Wilkinson, to which an exception was taken, because it did not appear that the magistrate had taken the oaths prescribed by law. It was said, that as by law he could not act, until he had taken the oaths and he was found acting, it must be presumed that his prerequisite was complied with; that is, that his acting as a magistrate under his commission was evidence that he was authorized so to act.
It will not be denied that there is much strength in the argument: but the cases do not appear to be precisely parallel.
The certificate that he is a magistrate and that full faith is due to his acts, implies, that he has qualified as his qualification is necessary to his being a complete magistrate, whose acts are entitled to full faith and credit.
It is not usual for a particular certificate that a magistrate has qualified to accompany his official acts.
There is no record of his qualification and no particular testimonial of it could be obtained.
These observations do not apply to the objections which exist.
But it is said that the certificate is the same with that in Wilkinson's affidavit.
If this objection had been taken and overruled, it would have ended the question. But it was not taken so far as now recollected, and does not appear to have been noticed by the court. It is not recollected by the judge who sat on that occasion to have been noticed. A defect, if it be one, which was not observed, cannot be cured by being passed over in silence.
The case in Washington was a civil case and turned upon the point; that no form of the commission was prescribed and consequently it was not necessary to appear on the face of it, that it was directed to magistrates.
That it was the duty of the clerk to direct it to magistrates, and he should not be presumed to have neglected his duty, in a case in which his performance of it need not appear on the face of the instrument.
That the person intending to take this exception, ought to have taken it sooner and not surprise the opposite party when it was too late to correct it.
But the great difference is, that the privy examination was a mere ministerial act—the administering an oath is a judicial act.
The court is of opinion that the paper purporting to be an affidavit made by Dunbaugh, cannot be read, because it does not appear to be an oath.
Mr. Hay then addressed the court. It is extremely uncertain, how long this examination will continue; whether it may occupy ten hours or ten days: And if gentlemen continue to make the same captions objections, which they have already done at every stage of the enquiry, it is impossible to foresee any termination to it. All this time, however, Aaron Burr is at liberty, and he may depart from this city, at any moment that he pleases. On the very first day that I made this motion, he ought to have been held to bail or in custody, and day after day, until the court should have given their decision.—I expect Gen. Wilkinson here this day or to-morrow; as I have received a letter from the Secretary of War stating that he would probably be here on the 28th or 30th. As to Col. Burr's counsel, they may have that confidence in his innocence, which dismisses all apprehensions of his intention to escape. For my own part I freely confess that my confidence is much less and my fears infinitely greater.—I rise therefore to give notice, that unless this examination is finally settled this day, unless all the evidence and argument be concluded and the opinion of the court finally delivered, I shall move that he be bound to appear here to-morrow, to answer the charge of Treason.
After some desultory conversation between opposite counsel; Mr. Hay proceeded: I know not, Sirs, whether this motion can be considered as regularly before the court. I certainly intended it as a mere notification of a motion, which I intended to make under certain circumstances. Is there any possible impropriety in such a motion? I consider A. Burr, as standing here as if he were formally brought by a warrant before your Honour; as standing precisely in the same situation as he did before you on a former examination. At that time, Sir, after having the evidence before you, though without hearing the argument of counsel, you bound him to bail from day to day.
Mr. Wickham observed, that this was a most extraordinary motion: it was, however, ingenious; as it had the very effect which he had contemplated by the motion for commitment. It was stated, that
Col. Burr is placed in the same situation, as he was on a former examination; and that the court ought, therefore, to bind him over from day to day as they did then. But the analogy is false. At that time, Col. Burr was not bound at all, and it might have been necessary to have demanded some pledge for his personal attendance. But now Col. B. is bound to court, actually bound; himself in the sum of 10,000 dollars, and his securities in 10,000 dollars more. And this sum is precisely double of that, which was required on his former examination, to secure his attendance from day to day.
Mr. Martin. The recognizance which already bound Col. Burr, compels him to be in court: why bind him up in a greater sum? Is there any reason to suppose him guilty of treason? Has anything like an oath, come from Wilkinson, that Col. B. is engaged in treason? There is not a single sentence, nor a single expression in Wilkinson's deposition which indicates any High Treason, perpetrated by him? The present application is contrary to every principle of justice, but if the court thinks that he ought to be bound for this charge, we shall submit with deference to its decision.
Mr. Randolph. The question is, whether there exists probable evidence of High Treason, against Col. Burr. But this is a novel and most extraordinary proceeding. Why does not the prosecution show that there does exist sufficient cause? Why do they not produce their evidence? If it be insufficiently strong, the court will no doubt pursue the necessary measures.
Mr. McRae. Gentlemen seem to consider the possible recognizance as amply sufficient under any probable circumstances, to detain Aaron Burr here to answer to the charge of Treason. I am of a very different opinion. I think with the Attorney for the U.S. that nothing is more probable than that certain circumstances may induce him to effect his escape; nor have I the same confidence which his counsel seem to entertain, in the possibility of his remaining for trial.—On the former examination, he was bound over; but even then it was evidently for a very small sum; and why? Because the Chief Justice himself observed that as Col. Burr was withdrawn from the circle of his friends, it would increase the difficulty of his obtaining even a small bail even for this smaller offence; and because he completely excluded from his view the present charge. As then he decided, that this sum in which Col. Burr is now bound is a final one on the charge of High Treason would have warranted; it seems to me that too great reliance is placed upon the present recognizance.
Mr. West begged leave to make a few remarks on this subject, though he had not so fully prepared himself as he would have wished, because he had not expected that it would provoke much discussion:—Mr. Wickham appears not to have understood this subject with his usual correctness, when he declares that the granting of this motion would have the very same effect as granting the motion for commitment. What is the object of this last motion? To commit A. Burr for High Treason. But the object of this present motion is merely to keep his person here to abide the opinion of the court: The other was, to keep him for trial. The effect therefore is widely different; and we should not, as Mr. Wickham contended, thus gain our point.—He supposes that the present recognizance will hold A. Burr to answer the charge of Treason. But if he looks at the terms of the bond, it will at once appear that it is a recognizance only for a misdemeanor, and not as the customary form is, to appear to answer for that or any other crime which may be brought against him. This recognizance may therefore be sufficient as to the misdemeanor: but not on the charge of Treason. It is perfectly immaterial that the present motion is brought before the court: It is precisely the same thing as if it were brought before the same Judge in his own chambers.—But if in that case if the examination were to continue for more than one day, what would the judge decide? Would he let the accused go at large? or he would rather at the close of each evening bind him over to his appearance on the subsequent day? In fact, the court has already taken this very step. On the former examination, the Chief Justice demanded and took bail; and surely what was proper then, is proper now. I apprehend that the present recognizance is to be forfeited only in the case of the misdemeanor; but if Col. Burr is to be brought up for High Treason, ought he not to forfeit something more considerable?—The motion in fact resolves itself into this simple question: If A. Burr be brought before the court on the charge of High Treason and supported by probable cause, will not the court bind him to his appearance on this distinct original motion?
Mr. Butt observed that the strange principle advocated by the prosecution was, that the former examination did not at all preclude the present motion. But if this be true, what would be the consequence? That every edition of the volume of evidence might justify a new enquiry.—No warrant has been issued for the apprehension of Col. Burr; and of course he did not stand in the same predicament, as on the former occasion.—The counsel for the prosecution seemed to have profited by one of the fashions of old times: when they wanted to try a witch. If she swam, he was of course condemned to death; if she was drowned, the way to be acquitted: And thus in the very experiment of deciding whether she was guilty of a crime, they inflicted upon her the very punishment, which belonged to that crime. In the same manner Col. Burr is to sustain the same punishment, while enquiring whether he deserves it, as would only have resulted from the most unfavorable decision.—Let us suppose a case; were I to suggest to this court, that some person present has been guilty of a crime, as the attorney for the U.S. has done; would the court think itself justified upon the credit of my bare word to bind over that person for his examination? I presume not. Col. Burr is already bound by his recognizance: This recognizance is sufficient to keep him here, until the court may discharge him. If he departs, the penalty is of course forfeited.
*** For advertisements and a continuation of the trial, see our extra which will be published in the course of the afternoon.
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