The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-06-27

! even III capital Cafes" Will this court, however
place itef II: orpo!;ton;o the Grand Jury p No 81,
it will not ard Mr.. Writ certainly forge.s ,oat
this court isto hear both fdescf the evde rs. -
whereas the Grand Jury heard enc iide only !; and
indeed part only OF that iide for had the Uu;t.d
States attorney ent up all the w;neie whole names
appear at the foot of the indictment, very different
would have been the refult ct their enquiries The
ground which we take is this that the Grand Jury
have found their bill upon the teRimony Of per-
jured witnefs and if the court were to l,ail Col
Burr would it not be JULY inferred tina, they had
let therfelves up in oFpoton to the G. J. bat that
they had been furnihed with lights which had been
denied to that jury.
| C. Jgfie.. Mr. Martin, have you any precedent,
where court has basd for treaon, after the finding
ct C. on this ground, tina, the ,etfimony laid be-
tore the c. had been mpeaohed for perjury, or that
otter teaimony had been laid before the court, which
had not been in the pofelion OF the Jury
! Mr.. Martin had not anticipated this cafe, and had
nat therefore, prepared his authorities but lie had
no doubt, that lueh exiGed.
Mr.. BIrr. Two diltina queltions have been
blended i'll this difculliun which ought to have bees
kept feparate IT. Whether this Rad the right
TO bail according to its diferetion: and edly. Whe-
Their It was expedient to eSerce its right in the pre-
lent ,nttance. II the had cfcretiou, il was
inneeetary e" produce evidence. That Gueifon,
ought, therefore. to be previously fettled
Mr.. Fay, when Re firt addrcifed the court,
was or opinion, that the Circuit Court had this
power; having been mled 10y very tranfent
! conversation With the Chief Juitice on the firft
examination Of Fir. Burr: he had however con.
lidered this fuhirtt more ma,urc!y, and the
more he thought of il, the more was he con-
vinced that a. B. was not privileged to de-
mand ba;'.-This Qushion was 10 ee decided
! by the common law, by the acts of Cougreis
or by the ACTS of Virginia
/ It could not derive the authority from tha.
common law, becauie this court is of recon,
origin; deriving its power not only from late
law, hut late government; and it has no an.
thority tut from an eftabliihed law. Does then
the law which eftah'i'hed 1t. expressly convey
this power! (Hsre Mr.. II. read the law y
Now, how are the court to attend to the ma
ture and circumstances al the cafe? Will they
require all the evidence before them, which
| has Juit occupied the attention uf the G. 7. for
: or days! Mr.. Wirt's argument on this
point was concluiive. The law too was an
piicahe to Prifoner only at the time of his
0rrsf, and cot of his indictment in the Iaft
cafe, the lituation of the accufed becomes
itiIi more precaiious: the danger which he ap
prehends, cones nearer and nearer , and the
temptation to violate his recognizance, becomes
much greater than at the earlier neps of the
profecuioD
no man Will contend that the common law
isIn force in the courts of the u States. AS
i>on might yon afirrt the validity of the laws
ofthe Cape of Good Hope or of Turkey. IT
was therefore ridiculous to compare the or
ganiza'ion of the court of Kings Bench with
tina. OF the prefent court As to the COM
plant OF Mr.. Wickham that by this doctrine
an American citizen would nand on wcrf.
ground than Britih ilbie0, it was unavaiIiug.
Perhaps courts of juifice would even be more
difpoied 10 hail for Treafon under fuch 90
vernment as that of G. Il. than in our own.
where the power of the government falls 70
rarely and 10 lightly upon the people. Were
even the common law in force in the u States,
1t would have no relation to the organization OF
our courts.
The power Of bailing is not then derived
| from the common law nor the act of Conrrefs {;
nor is it chedscible from the laws of Virginia.
In cafes affecting life, the prifuner is not enti
| tied to bail by our laws.
Mr.. Wirt. ! have itated that the powers of
the Court of Kings Bench are not applicable
to this cafe, becaufe that court is the creature
of the common law, whole powers have been
growing up from tire to time; whereas this
court is fixed and defined by law. There is
another great difference. The powers of The
c. of K. b. take their origin in ft1on. 1t is
tuppofed TO be held eoran ioJo rsee! In its
origin, the king hmfslf fat there, and he is fill
/ fupPoied TO fit. Treafon was crime againlt
H'o h'ShIIS TX Nv Sbt pali IOT " and the lame
power belongs TO the judges who Ieprefent his
perion. But how is 1t with us /? Treafon is
an ofsnce againf the people of this country
| And have the people even fat here for the adj
minlRration of jufice? and are the judges of
this court inveited with the powers of the PEG.
| pie But on the iuppoGtion that this fttion
does exit, is not the power of bailing removed
By politive law3 Does not the ACT of Con.
| grefs expressly take i! from the court?
| Mr.. UIckban,. Two indictments have been
| found for treaion one againft Col. b. and the
other againh BlannerhaiIet. IF the latter was
noqv TO come into court, he would be baed
| according 10 MIR. Wits diitincion, becaufe
not previouny arrefted; whereas Col. B. would
be diveAed of the very fame privilege, though
he was indicted for the very fame crime.
Mr.. RnndoPb cxpatated on this fubjeet at
conlidrr1h!e length and with great ingenuity
MIR. Martin prc;e1ed againf the ingenius
fdion of MIR. Writ. He challenged him to
name any king from the days of x. Arthur to
the prefept time who did or could fet in the
Court of KS Bench.
After a long AVID elaborate argument on this
poiat, the Cljcf Jflt2jre decided that the court
bad the power 10 hail pri;oner indicted for
treafoD /; according to its found dilcretion and
that t'is difcretion was TO be exerciled accord.
ing to the nature and circumstances of the
evidence and the uf1gcs Of law.
MIR. Burr ttated, that the court hsd then de.
cided that they poHeGsd the Discretionary
right TO bail, 1t would next be recenary to- Thew,
NJ tn eyar~iC. ti,.;r 4; g.