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TRIAL OF COLONEL BURR.
RICHMOND, Tuesday , May 26.
Present the same judges as on yes
terday.
The grand jury were called, and
adjourned over till the next day.
On the motion made yesterday to
commit colonel Burr on the charge of
treason, the chief justice delivered the
opinion of the court as follows:
In considering the question which
was argot and yesterday, it appears to be
necessary to decide:
First, ” Whether the court, sitting as
a court, possesses the power to com
mit any person charged with an offence
against the U. S.
Second, Ti this potyer he possessed,
whether cirowurstanccs exist in this
case yvhich ought to restrain its exer
cise.
The first point was not made in the
arrangement, and would, if decided a
gainst the attorney for the U. States,
only change the mode of proceeding.
If a doubt can exist respecting it, tint
doubt arises from the omission in the
laws of the United States, to invest their
courts, sitting as courts, with the pow
er 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 colonel Burr, and is now men
tioned, not because it is believed to
present any intrinsic difficulty, but to
shew that it has been considered.
This power is necessarily exercised
by courts in discharge of their func
tions, and.seems not to have been ex
pressly given, because it is implied in
the duties which a court must perform,
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 legis
lature, that the judges may exercise
collectively the power which they pos
sess individually, so fur us is necessary
to enable them to retain a person char
ged with an offence in order to receive
tlie judgment which may finally he
rendered in his case. The court say,
this is obviously understood by the le
gislature, because there is no clause
expressly giving to the court, the pow
er to bail or to commit a person, who
appears in discharge of his recogniz
ance, and against whom the attorney
for the United States does not chuse to
proceed, and yet the 33d sec. of the
judicial act, evinces a clear under
standing in the legislature, that the pow
er to take bail, is in possession of the
court.
appear in conformity
witlr his recognizance, and the court
passes away without taking any order
respecting him, he is discharged. A
new recognizance, therefore, or a com
mitment on the failure to enter into
one, is in the nature of an original com
mitment, and this power lias been uni
formly exercised.
It is believed to be a correct position
that the power to commit for offences
of which it has recognizance, is exer
cised by every coui t of criminal ju
risdiction, and that courts as well as in
dividual 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 indi
vidual 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
United States, for in cases of the cha
racter of that under consideration, its
duty and its power are co-extensive
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 mot ion on the
pan of the United States unnecessary,
or that other inconveniences may result
from it, than the want of a legal right to
nuke it.
Thcilrst is, tnattne grand jury be
ing now in session ready to receive ai.
indictment, the attorney lor the Unitec
States ought to proceed by bill insteao
of applying to the court, since the only
purpose of a commitment is to bring
the accused before the 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 Iteen argued, the commit
ment 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 commit
ment retains its force w hile 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 subse
quent term.
The arguments drawn from the ge
neral policy of our laws, front the atten
tion which should be bestowed on pro
secutions, instituted by special order
| of the executive, from the peculiar in
j conveniences and hardships of this par
ticular case, from the improper effects
which inevitably result from this ex
miination, are some of them subject
For the consideration of those whomake
the motion, rather than of the court,
and others go to the circumspection
with which the testimony in support
of the motion ought to be weighed, ra
ther than to the duty of hearing it.
It lias been said that colonel Burr
already stands charged with treason,
therefore, a motion to commit him for
the same offe nce is improper. But the
fact is not so understood bv the court.
The application to charge him with
treason was rejected by the judge to
whom it was made, because the testi
mony offered in support of the charge
did not furnish probable cause for the
opinion, that the crime had been com
mitted. After this rejection, colonel
Burr stood so far as respected his le
gal liability to have the charge repeat
ed in precisely the same situation as if
it had never been made. He appears
in court now as if the crime of treason
had never before been alledged against
him. That it has been alledged, that
the government has had time to col
lect testimony for the establishment of
the fact, that an immense croud of wit
nesses are attending for the purpose,
that the prosecutor in his own judg
ment has testimony to support the in
dictment, are circumstances which
may have their influence on the motion
fora commitment, or on a continuance,
but which cannot deprive the attorney
for the United States of the right to
make his motion. If he was about to
send up a bill to the grand jury, he
might move that the person he design
ed to accuse should be ordered into
custody, and it would be in the discre
tion of the court to grant or to reject
the motion.
The court perceives and regrets
hat the result of this motion, may be
publications unfavorable to the justice,
ind to the right deeison of the case ;
but if this consequence is to be pre
vented, it must be by other means
ban by refusing to hear the motion.
No man feeling a correct sense of the
importance which ought to be attach
ed by all to a fair and impartial admin
istration of justice, especially in cri
minal 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 and the tes
timony exhibited against him, but by
public feelings, which may be, and of
ten are, artificially excited against the
innocent as well as the guilty. But
the remedy for a practice not less dan
gerous 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 die choice of the prosecutor
on the part of the United States to pro
ceed with his motion, it is the opinion
of the court, that he may open his tes
timony.
Mr. Hay then rose and declared
that he was fully sensible of the incon
ve iiencies which might result from a
public examination ol the witnesses at
this stage of the prosecution ; that no
thing but the necessity of taking this
step, to secure the appearance of colo
nel Burr to answer the charge, had in
duced him to make the motion for
commitment. He was w illing, there
fore, il any arrangement could be made
to attain the same end, and to obviate
die inconveniencies mentioned by the
court, that such arrangement should
be made. He observed that he un
derstoodfrom the counsel on the other
side, that they were disposed to cooler
w i'h him and the gentlemen who assis
ted him, on the subject of adopting
some such arrangement. He propo
sed therefore, with the permission of*
the court, to retire for a short time for
the purpose of holding the conference
proposed.
The court having consented, the
counsel on both sides retired together;
and returning, after an absence of a
few minutes, informed the court that
they had not been able to come to an
agreement, and wished further time to
consider the course which it might be
most advisable to pursue—to which
the court accede and.
The case of colonel Burr was there
fore, without any further proceedings
at present, adjourned until the next
day.
We are happy’ to say that the opin
ion of the federal court, delivered by
tlie chief Justice of the United States,
on the question whether Mr. Hay’s
motion to commit colonel Burr on a
charge of treason should be heard,
does great honor to tlie impartiality
and intelligence of that tribunal. It
meets with our entire and most cordial
approbation, and we express this sen
timent with the more pleasure, as we
have been unjustly accused of malig
nantly anticipating improper conduct
in the court, and, in fact, of desiring
that they should do wrong in order
that their reputations might be injur
ed. We did indeed sincerely pray
“ that future events might not increase
the suspicions entertained of the puri
ty of the judges of the supreme court
of the United States,” and it gives us
great gratification to observe, that so
far as the trial of Aaron Burr has pro
gressed, it appears most probable that
nothing w’ill occur to confirm those
suspicions. We now hope that this
interesting trial will be conducted by
the chief justice in such a manner as
will leave no doubts of his integrity
and firmness, as none can be entertain
ed of his great abilities and extensive
knowledge of the law.— Fir. Argus.
= - ■- snftm;
FOR THE E VEAiXG LEDGER .
O ! fay, (hall man, thro* high ambition’s views,
Or too refined notions ot la lie pride,
The maiden whom his heart holds dear refuse,
Eecaule that fortune is to her denied.
Because she cannot boall a lineage long,
Os ancient nobles in her low defeent,
When round her all the budding virtue? throng,
And tv'ry grace to her pure ipirit’s lent.
When still he knows her spotless, angel mind
For him is with sincerest paflion warm’d,
Say lhall he feel from her to part inclin’d,
Altho’ he be with all her beauties charm'd ?
Ah 1 no ; he sure is form’d of diff’rent mould,
From the fair offspring of affeftion true,
If to her miid, her gentle virtues cold,
He don’t return that warmth of love that’s due.
For me, content within my humble cot,
Bleft with a such accomp ifh’d feeling wife,
Tnrice happy would 1 deem my fort’nate lot,
Aud spend in blifsfui hours my peaceful life.
Should fortune frown, or friends my choice condemn,
Beneath the mountain’s wild 1 would retire ;
I’d fay, “ 1 chose her for myfelf, not theroj
My conliaut happiness I did desire.”
I’d toil from riling f the fun till night,
That my beloved fair might never want,
And ev’ry smile I’d view with great delight,
Which Ihe to me for all my pains would grant.
LTNCONNU.
GLANCE AT EUROPE. M
FROM THF. AURORA.
Before the opening ot the next year, we veiv
tuie to assert, the principles oj the urmtd veu.
tratiiy oj 1780, will he acknowledged by ererj
power in Europe but one—and those principles
will be made the basis of a system, which gc
close to the realization ot that idea of an fa.
ropean republic , conceived by the celebrates
Sully, and so anxiouly looked for by Henry iV
of Fi ance.
\\ e give this idea, as the consequence of the
existing state of Euiope—and the impending,
(or perhaps already accomplished) discomfiture
of the modern Vandals.
This city w T as much amused last w*eek by the
industrious circulation of reports, that ihe erii
tor of this paper had very recent ad\i< e from
Europe—and accounts of terrible battles subsei
quent to the affairs of Braunsberg. At the
cojfee house it was even alledged ihat the pa
pers containing those msrvelous accounts were
ir f our hands. We neither received any such,
nor did we give the lea.d. credit to the talcs that
were circulated, tho’ they went to say that the
Vandals were completely annihilated, and
60.000 killed or prison ers with their general
Benningsen, g
We had been speculating upon the news tjfl
day before, in consequence of the consideration
of the 65th and 66th bulletins; and had formed
a judgment by our enquiries ; the scope of
which we shall now offer to our readers as lea
ding to the conclusion with which we began this
article.
We have not found in any one of the official
bulletins of the French, a kicr*stated which has
not been by subsequent informa
tion and reverse has been the
fact uniformly other side. Pei haps
the effect of tb e vales is the cause of the dis,
ferent character of the official reports. The
Gauls appear to be satisfied with what they do
and have done—the Vandals endeavor to supply
by official gazettes their deficiences in the field.
By the 65th and 66th bulletins we are put in
the possession of the positions of the armies.
The Russian head quarters continued at Kon.
ingsberg; but they had carried their Cossacks
and other light marauders, as far as Brrteu
stein on the Alla ; this place is 30 miles south
of Koningsberg and 20 south of Eylau ; and at
the same distance (30 miles) east cf the Pas
serage, and about 60 miies from the French
head quarters, which continued at Osterotie, on
the 17th of March.
The advance of the French, however, wH
east of the Passerage, under marshal Aey Hyj
Gulstadt, that is seven miles from that river,
and 25 miles S. W. of Bartenstein.
Having the head quarters and the advanced
posts, we have now to trace the lines of can
tonment. The Russian front is marked by the
course of Pregel river ; with some corps ad-j
vunced south of the Pregel, but with two small]
rivers Almonia and Sohucena in front, and’
their left covered by the lakes of Flat sand Spi
riding, and thence by the Pysch river to Grod
no ; which is a principal magazine. Eighty
miles N. E. of Grodno is Wilna, an important
place and depot.
The French left, under Bernadotte, was at
Braunsberg, within 35 miles of Koningsberg,
and the legions under Soult and Davi ust
stretched along behind the Passerage to Feib
stadt and Deppen; where the line of the Pas
serage is encroached upon, and the French po
sitions advanced between the Passerage and
Alla, which are not more than six to eight
miles apart, and very favorable by nature for a
strong defensive military position.
The French line extends in chequered co
lumns of cantonment along the numerous lakes,
and occupy Seeberg, Alleustein, FreudenbergHi
Munsterberg, Bergfiied, Buningen, Passen
heim, and Ortcisberg.
Here anew disposition has been unfolded.
Massena, with the fifth legion, and another of
the French infantry, has advanced south to the
Oniula river, which has its rise in the same
lakes as the Passerage and Alla, but runs south ;
while the Passerage runs north, and the Aila
north east. ‘Fhe Omuia falls into the Narew,
a few miles above Pultbsk.
But Massena’s head quarters is at Wilden
berg in the forks of the Omuia ; within fifty
miles of Grodno.
The collection of force at this point gives a
new and impressive character to the prospects
of the war ; anci induces us to expect some
very sudden and powerful enterprize ; for be
sides the two legions of F’rench infantry, we
find two other powerful bodies of troops.
A Polish army of observation /is posted at
Aeldenberg, which is only 25 miles in the rear
of Massena; that is, west of his position on the
Omuia.
Besides these we find Murat (duke of Berg) _
in the same quarter. ‘Fhe conclusions whn h
we draw from these circumstances we shall
explain very simply.
The intrepid character of Massena.
The more than ordinary force directed to
that point under him ; as the infantry cannot
consist of less than 40 or 50.000 men.
The Polish army are all cavalry.
The whole cavalry of the grand army is un
der Murat, and the younger Kelierman is his
chief of the staff.
The Polish corps being called an army, in
dicates that it must be strong, say 40 or 50,000
men.
Murat’s force cannot be much less—say Mas
sena’s army, altogether, 120,000 men.
Their position is within two short cavalry
marches of Grodno; and that being an impor
tant place in various views, we make no doubt
that it must have been the first object of at
tack.