The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-05-30
(Debate to be Confinued.)
Tuesday, MAY 26.

The court delivered the following opinion on Mr.
Hays motion for commitment:
In confidering the quettion which was argued
yeferday, it appears to be necefiary to decide
ut: Whether the court fitting as court,
poiienes the power to commit any perfon
charged with an offeno againit TIE u. S.
2ndly: If this power be poifeffed, whether
circumstances exit in this cafe which ought to
refrain its exercife.
The frlt point was not made in the argu-
ment, and would, if decided againf the after
ney for the U. States, only change the mode
of proceeding. If a doubt can exit refpec Cling
it, that doubt arifes from the omiilion i'm the
laws of the u. States to inveft their courts, fit
ting as courts, with the power in queftion. II
is expressly given to every jultce and Judge,
but not to court.
This objection was not made on the part OF
Col. Burr and is now mentioned, not hecaufe il
rs Believed to prefent any nriniic difficulty, but
TO ihow that it has been confidered.
This power is necefiarily exercifed by courts
IN ditchsrge OF their functions, and feems not
TO have been expressly given. hoeA.rs i. 80 ia,
piled an I,sei,s rirrI aiSo,,rt r,ua perform
and the judicial act contemplates it in this
light. They have cognizance of all crimes
agaiua the United States they are competed
of the perfons who can commit for thofe
crimes; and it is obvioufly underAood, by
the leeinature, that the judges may exercife
dvidualIy, 70 far as is neceflary to enable the m
to retain perion charged with an offence in
order to t>~eive the Judgment which may f.
naIly be rende. I'd in his cafe. The court fay
this is obvoufly underitood by The legislature
becaufe there is no claufe expressly giving to
the court the power To bail or TO commit a
perfon, who appears in diicharge of his recog-
niZance, and againft whom the attorney for
the United States does not chuie to proceed,
4 t.l,o .,t,Ic "a 6 n
clear understanding ia the icgi(lature, that the
power to take bail is in pofieGion of the court.
If perfon fhail appear in conformity with
his recogHizance, aud the court pafies away
without taking any order respecting him, he is
discharged. a recosnizance, 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 exercifed
1t is believed TO be correct petition, that
the power to commit for offences of which it
has cosniZance, is eXcrcifed by every court of
criminal ction, and that courts as well as
individual magistrates are conieryators of the
peace.
Were il otherwiie the coDfequence would
only I've that it would become the duty of the
judge 10 defend from the bench, and in his
character as an individual magiRrate, to do that
which the court is aiked to do.
If the court poflefles the power, it is certain
w its duty to hear the motion which has been
made on the patt of the u. S. for in cafes oftbe
character of tina, under confederation, its duty
and it's power are coexteniye with each other.
1t was obierved when the motion was made,
apd the obfervation may now be repeated, that
the arguments urged on The part of the accufeG
rather prove the motion on the part of the
u. s. unneceiiary, or that Inconvenience
may refult from it, than the want of legal
right to make it..
The hrt is, that the Grand Jury being now
in FELTON, ready to receive an Indictment, the
attorney for the United States ought to pro-
coed by bill inGtead of applying to the court,
fnce the only purpofe of commitment is to
bring the accuied before a Grand Jury. This
fatement contains an ntrinhc error which def
troys its operation. The commitment IL not
made for the foie purpofe of bringing the ac-
cufed before Grand Jury; it is made for the
purpofe Of fubje6ting him perfoually TO the
Judgment of the law, and the grand jury is on
Iy the hrR fep towards that judgment.
IF, as has been argued, the commitment was
fnply 10 detain the perion until Grand Jury
could be obtained then its operation would
ceafe or the attending of Grand Jury but
fuch is not the fact. The order of commit
nent retains its force while the Jury is in ief-
hon, and if the proiecutor does not proceed,
the court is accuaomed to retain a prifoner
in confinement, or to renew his recognizance
10 tubfequent term.
The arguments drawn from the general DO.
LEY OF our laws, from the attention which
fhoud be behowed on projections, inaitsted
by fpecal order Of the Executive, from the
peculiar inconvcniencies and hardniips Of this
particular cafe, from the improper efIeds
which inevitably refilt from this examination,
are fone of them flticG for the confederation