Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-05

court to be tried for any other crime.
Mr. Hay observed that after the evidence
was examined, if the curt should be of opi-
MON that the prisoner ought To be commit
ted and sent, 6ut ior that diffcuity, he
could then remove it, by entering nolle
prosequi on the Indictment for a misde.
mcanor.
Messrs. Hiekhan, and Bots commended
that that question ought to be settled before
the evidence was examined.
Some conversation ensued on this point.
Mr. Hay said the application made to the
court was to commit but the di: trict Judge
was to transmit the prisoner; that when
the motion should be made to the district
Judge, it would he time enough to remove
the difficulty, if it should then occur.
The Chief Justice said tic principal diff
hculty was whether ne was not hcuri, On
the motion TO commit, to consider the whole
question which might come before the dis
trict judge. He examined the law of con-
grcssr 4 vol. l.. y. 3. p. 70, s 3Sl which re-
quires that IT the offence is found baili,ble,
the person accused is to be bound i'm res
cognizance to appear before such other
court Of the u $. as should have jurisdic-
ton and asked how this could be done
when he was Gin custody here" for another
offence He said too, ''this court is compell-
ed to specify in its order the court,to which
he Is to be sent, and the district Judge IS
bound to carry the order into effect. How
can this be done while the prosecution for
a misdemeanor is pending here 90
Herman BtdnncrhuSset and Israel Smith
were brought into court.
Mr. .lIQy said he was sorry 50 much trou-
bic had been occaSioncd; that, as the'court
appeared to be OF opinion, that the prisoners
could not he transmitted, until the indict-
ments for misdemeanors were disposed OF, .
he would acquicSce in that opf,ion, and
proceed to try .fdron Burr for the mis-
dcrIe amor.
The clerk was about to read the indct-
memt, when Col Eur stopped him, and
sai he was not To be arraigned, but could
rk al by attorney that he TcuS NOT before
ihr eourt as 10 This charge ! but was
ready TO make his motion for his discharge;
having been acquitted of the treason.
Mr. Uirf observed that the proclamation
made by the officer of the court was that
ii any persCn could inform the court of
any treason, felony, or miStlemeanor COM
mitted by tue prisoner, &c.;" that the
counsel of the Us. now Showed cause "a
gainst his discharge, by charging him up
on the indictment for a misdemcanor.
Mr.. Botts contendcd that the court was
20 Judge whether the charge was Of such a
nature as to detain HIM IN custody He
then proceeded to argue, verv much at
length, that person charged with an of
fence less than capital is not to be retain
ed III custody, but, in the first place, to be
summoned to answer the indictment He
said that on indictments for misdemean-
ors, the regular course in Virginia was 10
issue summons or Uenire facia8, comman-
ding the accused to appear; not. cdfias
to take his body Until he should be in
contempt that 1t was contrary to common
sense, ~ cases where the punishment, or
conviction, is only fine and imprisonment,
that imprisonment sh uld precede the SEN
tence. In support of this position, he ci-
ted Purcelps case in 1879, from the order
book of the general court No. SO. p. rs. 70
and the cases of the Hunts for riots, Id. D.
rs and e7-He said the laws of the seve-
raj states furnished the rules Of proceeding
in trials, & with respect to ftrocess also in
the federal courts. To prove this he ci:ed
Calls NJ. S. reports of cases decided in
this court p. 113, 233 and 247, and the 34th
sec. of the judicial act. a. U. 5. vol. p.
~; Mundei's case in this court, order
book A. 35S and 397-St: Chairs case, Id.
4O4 and 45e.
He observed that Judge Chase, in the
case of Calender, had awarded c0flias
instead of a summons; but this was done
without argument, and proceeded from his
not being acquainted with the aw Of Vir-
ginia that his doing so was the foundati-
ON of one of the articles of impeachment
against him. The Senate had Indeed una
nimously acquitted the judge on thar arti-
Gle ; but it did not follow that they appro-
we'd Of his opinion since they might have
thought, that he had acted inadvertently,
and with no evil design. To shew that
Judge Chase's opinion was erroneous, he
quoted the argument o Mr.. John Randoifh
one of the managers of the impeachment
(Chase's trial p ~ and cited Mr.. Hay'S
own declarations, I'D p. IS
Mr. HGy interrupted him, and said that
this conduct in Mr.. Bolts was unfair that
Mr.. Martin had delivered on that occasi-
ON long speech maintaining doctrine
opposite TO that now commended for by Col
Bn-T's council, but he would scorn on the
present occasion, to make use agai S. him
Of what he had then said.
Mr.. Bolts said there was a difference
between the situation of Mr.. Martin and
Mr.. Hay. Mr.. Martin as defending a
person accused, and was therefore justifi.
able in using the best arguments he could
for his client, but MIR. Hay had declared,
as to himself, that he defended Calender
merely as the Lawyer of the constitution
and on that occasion was giving testimo NY
rs witness.
He proceeded TO cite 2 RgzyE 400 e. 2T