Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-05-23

h'" VI his NcpuitSi Out COnSIueICQ thC
irieguiarity ofhis proceedings as the mere
eject or AN error III constituting the law, |
which error 1t was proper 10 correct. lie |
Gdverted to the law of Virginia b. which |
24 persons properly qualified are directed |
70 be summoned rs a grand jury; and con- |
tended that, when the officer had summon |
ed that number, his authority ceased, and |
he had no power to summon the twenty
NTH. In the present case, he said, he was
authorised TO state, that after the Marshal
had summoned the number required by
Law, he had accepted of excuses from part
of them, and had afterwards completed the
lpannelby summoning additional members.
He WAS followed by Mr.. Bolts, who went
more particularly into an examination of
the question:, and referred to the judicial
| act OF Congress and the laws of Virginia,
prescribing the duty ofofiicers in summon
ing grand jury He also cited the case
! OF 1Sdr6iry y. Madison Il Cranch) to
shew that when a ministerial act was once
/ performed by AN officer, it was irrcvoca-
bic. 1t was proposed on the part OF Col.
Burr, that the marshal should be interro-
gated as to those members Of the grand iu-
! ry, who had been summoned after the orr
gnal PANEL Of II had been completed.
| Mr.. Hay, district attorney, observed that
| he confessed himself not very well prepar-
ed to answer the obe ton, a similar one
to which he had never heard before, but
that he conceived il to be o. no Importance,
and was willing that Col Burr should be
accommodated with grand jury, to which
| no exception could be made Ii appeared
to him indeed not be proper 10 exa-
| nine witnesses as to the conduct of the
marshal i'll this stage OF the prosecution :;
and he knew not why the objection was
| now made for it could make no difference
to the prisoner or to the United States
since 1t any OF the grand jurors were set
aside, there would either be enough re-
manning ot those who had been summoned,
or the deficiency would be supplied by The
marshal from among the by-standers. He
submitted the whole matter TO the court to
determine whether testimony should be
examined concerning the persons summon
ed or not.
Mr.. Wickham said he meant no inpu-
ta;ion on the marshal, whose intentions he
doubted not were upright; but as this was
an extraordinary case, and great attempts
mao been made to prejudice the Public
mlnu against Col. Burr, he was iustifable
In taking every advantage that the law
gave him. He cited 2 Hawk. Pleas of the
! Grown, p. 307 Is sect and 5 Rae. Abr.
/ US, 10 shew that person bound In a recop-
I nlzance ia answer criminal rharre. HIS
a right to appear and make objections to
the grand jury before they are sworn.
whether plea in abatement might af
! forwards be filed for the error Committed.
was question not necessary now to be de-
termmed: neither was it the wish Of Col.
Burr to resort to that alternative; for he
an%'ousiy desired that the prosecution
should terminate here and with 2 Grand
|
Mr.. Hay tken read the law of V;ro;ri.
(Rev. Code, pa 100, sec. 81 and conteuded
that the construction attempted to be puf
upon 1t was more rigid than could he yvar.
ranted by sound sense and good policy
The intention OF the law was that q good
men and not liable to any ofthe executions
therein stated should be summoned. What
reason therefore could be given to prevent
the marshal Gf he discovered thai = mn
whom he had once summoned could NOT NJ
tendi) from summoning another. and here
by securing the attendance of the full nnm
Der required The marshal summons =
man without knowing The situation of his
private affairs. The man afterwards in
forms HIM that he is subject to uncontrola-
bic domestic difficulties fer example. that
ne Is gong Journey on indispensable bust
ness. Why should he not excuse him -
summon another! Where is the authority
TO prove that the functions of the olFcsy
who collects grand jury cease before the
day on which it is impannelled?
When the return is made, if a sufficient
number do not attend, discretion is veet-
lin the marshal to appoint others in the
room OF the absentees: and is not the prin-
ciple the same, when he knows that the o.
whom he has first summoned, cannon an,
tend
He observed too that the gentlemen were
! influenced by mistaken idea: for he I'D
understood thatth marshal, in the instan-
ces to which they alluded, had oplv enon;,..
ed OF the persons said to have been sum
moned, whether they could attend or NOT 4.
expressing his intention to summon tben,
IT they could attend and, upon their as,
surfing him Of their inability, had aDpIied
to others "PFi'Ou
Mr.. Hickham said that the counsel for
the United States had not fairly met the
| question. AS the authorities he had citcd
! before were short, he read them obeev,,-
ing that his only object in doing SO was r..
shew that the objection ought to be made
/ before the grand jury were impannelIed
and therefore must now be made
On the merits Of the objection he said
! that Mr.. Hays argument concerning nolic,,
had no weight that the words of tic l,,y
OF virginia being plain on the subject in
question ought alone to be regarded that
/ 1t was sufficient to answer ffq Lc,r sCr;bIe,
eqf . that 6oI;r,, l. r'I't"