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TRIAL OF COLON!.L UUUR.
ITDLB AL COURT.
JOcuuoNO, Thurtday, May 23.
ATtr r the o|>infou o! the <our! re.peeling the
inadmi siuiliiy oi Duiibaugh’s, uilidaiU Ltfo been
dciT ci eu—
Vie. 11a y observed, that t,s the cxatnitia’ion
iu colonel in. tui tt i ! ‘ki alrtu.fiy taken
tin inucli ii iu without beiu;, a!.;e to make any
progress i.i the ijifiii.es-. am trom the (Hs|><>i
lion maniteste iny his cou.i - Ii: m'glil lust not
< toy ten d..ys l>at even ten years longer, lie
considered it U'suuiy, tiuin nfonnalioh which
ire had reee ■1 ■ ■-t ni'U’. ■ryto si ‘ est to
the court tlie: ;> opi i -iy ol hi: oiiiij colom ! Burr
in a tan her -eeog iziiicu ho n day today, till
tire exami itiou eoiud he elide 1. Ho .Rated*
cm the aulboiily ila letter j ,t con.e to hand
it (jin the secret, v t v* .r, il at . and Y\ ll
kinson w: n >,:••<•...l other v iii.fv.es might be
expected hei c nctween the -B li and both oi
till. i non: il. i his ci. cimix’ .nice, s.ud he, iif i
clersit essentia! that he ahould bec.,n4deic<. fit
custody uinil lie • i.e secinity tlui his r>er-.on
shall in- forth coming to answer tiic cha ge ol
ti casou jg.tinst the United Stales. ‘1 he gen
lb;,nen WHO up, 11 IS coulmei for Colulid ii i I
rn.iv be .aid no doubt aie ‘ineere in the opin
i si they hare expressed th it he will notshiink
J ian ihe eb •t - exhibited against him, and
—v ‘-’•"juncture of tfi < u instances
xvlnch may occur, Hr {,. ■ ■ - , out ii. sc
gentlemen mux; pardon me Ibr saying tii.it 1
cn'ei'tain eery different, opinion. I must be
lie e dial hi, c on'd for the safety of his own
Ii”- would, it he perceived i in danger, prevail
over his regard lot the interest of ins securi
ties. I ttivc notice iheicfoie that 1 cen.xii.lei
l.i a as being already in custody to ui ,wcr die
in” ion I have made for hi ; comruitn cut, and
th .t lie cannot lie permitted to go at huge with
out i.ti ig bi""i itv for his appearance from
(i iy to day. flix situation now, is the sane as
t : mi whcnliew.it first apprehended and brought
Let ne a single nidge lor the purporr oi ttsa
n inaiion. Your honor at that lime consideied
him as in eti itody. and bound him over from
day to day ; and i only contend, that (he xutne
course should he pursued al this lime.
Mr. \\ ickh VM. I lie gentlein ,n thinks he
h i (.tjt.ii neil the effect of his motion merely by
h niiig made it I cannot perceive the proph
et'.’ of a moti in to co npel colonel Burr to give
bail in any sum before the proli ible cause to
heneve hint guilty of tie..son lias been shown.
\\ lien he was brought before your honor for
c . iminaiion. von conceived the sum of gi.OOO
su nuent security for his daily appearance;—
it'it a recognizance has already been given iu
double that sum, binding him not to depart
without the leave of this court. Yet now, al
though no proli tide proof of treason has been
exhibited, Mr. H. v ret|uiresthe court to de
mand ol colonel Bun additional secuuty ! 1
trust that such a motion will not prevail.
Mr. M a itis'. It has been already decided
by the sup, erne court of the United Mutes that
hot a single espies.ion in Wilkinson’s affidavit
iinioimis to any prool of ihe charge if treason,
and ue motion oi the gentleman amounts to this;
we itave no evidence ol treason, and aie not
ready to go to trial tor the purpose of prov ing
it. We therefore move toe court to increase
the hail.
iir. Uaxho!.ph Tile fust motion of the
Counsel lb. me , ii;cd States vv..s to commit
C'douol B ire on the ground of probable cause
only. I his goes a v,*p farther; aid vvidies
the s i ne Uii i ; to lie done on the ground of a
/ j i.ci/• ruu cau.sr. Hut we trust
la it we >a.dl not he deprived ot our liberty, or
h Id to bail on a mere uncertain expectalijii of
e,idc ire.
Mr. M-Rak. The gentlemen re'm to con
sider tlie recognizance already taken as sulb
rient for all ciicuinst.uices, and that colonel
Ter will comply wi ll it at any late. But we
have not the same expectation that lie will ap
pear in case he discovers that sufficient fu
el.*.no for his conviction his been obtained.
\\ hen they speak ol the sum in which he was
hound on a former occ.a-,ion. tliey donut lecoi
le.", the civcunistv,nces vvhi. Ii induced the judge
to take bail in so small a sum. It wo express
ly mentioned by yoor honor that his having
teen brought to a pl.u e at a ths f nice from the
circle of his f. ieuds, and the nature of the ol
io.ice, (a misdemeanor only) induced you to
h Ul him to b..ii in that sun ; and the charge
oi treason was almgeJier excluded from view
m taking the recognizance.
Mr. >V’irt. Al •. vVieKham, in saving that
my liientl Mr. Hay thought he h and obtained
tue object ol his motion merely bv hiving
in ale it. clearly misconceived the object of the
mo mn now before the court. The motion we
m ale yesterday was to commit colonci Burr
oo ach age of treason : out nr i m to day is to
h >ld hini in custody to abide the opinion which
the court in iy pronounce upon the question of
commitment. l'hc gentlemen siv that we
Lave seemed the object vvi have in view by the
recognizance alre ,dv taken. The court ex
piessly excluded the charge of treason Lorn
thi recognizance, vvhi h applies only to tlu
rni.deine nor Let us suppose that the nvi
ti >n to commit colonel Bun was made out of
court before a single magistrate. If the eva
mi i it ion of witnesses in support of ihe motion
occupied move thin one <Lv. would the nia
g grate let him go at large, while ii was depen
ding ? \\‘m Id he i.oi rather, eiilier hare him
is i ie'd in cos ody. or take sveuri v for Ins ap
p n , ice. and e icvv it every evening until the
limMon should lie determined ? This is all that
xv now ask of the court to do. The recogni
zance which has occ.. gi.cn applies to the mis-
v
cVinennor only Ts tbei efore it should Ik; for
feited bv his going away, we shou.d have hail
no security for his answering a charge oi lira
son ; a much more enormous otknee, and at- .
tended with a very difietent punishment. We
contend, the . eforc, that addiuoiial secuiiiy
ought to he taken.
Mr. Botts. I shall endeavor to place this■
siibjcci in some measuie in anew light. It .
has been said that tiie former examination of;
colonel Burr did noi p- eciuue this motion, il •
so, every new edition of I lie volume of evidence I
would justify a renewal of the mo ion to ile
nii.iid additional bai.— I In; motions mi lit he
:ieped upon nio ions, and b ii upon h. il, until
tht perpetual imp: isnnmcnl ot the accused
might he the consequence.
ii was api ac;ice in former times to drown a
person accus’ and of lieu g \ witch, in order to
try her. I think that practice is renewed on
the present occasion in another shape—A mo
tion is made to < orn.uit colonel Burr for treason.
Befoie the evident e ;a i be gone through by
which alone itCuiiLe ascst'ained that he ought
to be commuted, toe io, ‘t ne requeued to
predetermine the effect of u e evidence, and
commit, before tliev ii.vc decided whether
they ought to commit. Besides no warrant
ha, been issued against colonel Burr m the
j.iesent occasion. He has not been attested
for Ufcason ; and thcreloie cannot be consider
ed as in custody for that offence.
Mr. Hay then made some further observa
tions on me importance of the charge of trea
son. (wi.j. ,i is of the highest nature, involving
tiie lepmation and iile and the piisoner) and the
g reat i ecessity therefore of the most ample
security to compel his appearance tc answer it
He slated that tr.is examination niight l .st ma
ny day s ; that alter me cou t hat'ni.ele up an
opinion tlial coloi e Burr ought to hi < ( inmit
ted, he might march off aiul leave the court to
pionounce it; so that an order to commit,
might he made by the cult, and no person
found on whom it c iil.i i>e executed, .'.nch
ail event, tie Said, would cxi ilc ilie laughter
and scorn ol all he people ot the United Mates.
He mentioned that ait immense expense had
been incurred by the government, io collecting
witnesses, anti picp.oi, g for mis t.iai; that,
therefore, he urn not vu-di the vvl.ole of that
expense to be thrown away. (General Wilkin
son is expected to ani.c between the 28th and
30ih ot tins month, li he at lives, Uidi the
bills of indict.nent will be imuieui.itcly sent to
the grand jury. L'his is the fnat instance in
which the ministers oi tire law have been re
quested to say to the accused, “you may do as
you please, and go at large, until we pronounce
sentence.'’ Ihe gentlemen contend for new
principles in favor ot coionel Burr; but l trust,
that greater piivi.eges will not be grained to
him than to the humblest deluded vicdiu ol his
ambition.
1 he circumstance that he has already enter
ed into a recognizance to answer for a misde
meanor, is no argument to exempt him from
entering into another on a charge of treason
Mmll the accused clear himself of a responsi
bility for one crime by his having committed
or being charged vviin another? ‘I his would
mde and be to violate that maxim ot law. that no
man shall be benefited by his own vvtong. Mr.
lfotis has contended, that there is a difference
between the ease on the examination and that
now befoie the com t; that in the first instance,
a war.ant had been issued; hut none in the
present. Bui a warrant is certainly unneces
sary now that the prisoner is he foie the court,
lne object of a wai rant is to hi ing him before
you \v nen this has been done, it is funr:tu
•jfi ‘io. Here i, coio..ei bun, before the court.
It is therefore immaterial how he came befoie
u; but he ought to he consideied i.i custody,
uiid. discharged by the due course of law.
I lie Uhikp Justice delivered ihe opinion
ol the court, the substance of vv nich was as fol
lows. Ii is certainly necessary that a per on
accused should be retained in eusiodv, or rc
nuiied to give security for his appearance,
vv..ile Ins examination is depending-. Lie a
mouni oi ihe security to he required must de
pend, however, upon the weight of the testi
mony against him. On a former occasion col
onel Burr was held to bui, for his daily appear
ance, in the sum ot five thousand dollars only,
because there was no evidence before the judge
to prove the probability of his having been
guilty of treason. When the examination was
completed, the sum of ten thousand dollars
Was con idered sutfiv cut to hind him to an
swer the charge of mi .demeanor only, because
the constitution requires that extensive hail
should not he taken ; but that recognizance
hal no application to the charge of treason
Yet, whether additional security ought lobe
re juired in the present stage of this business,
before any evidence lias appeared to make the
charge ot treason probable, is a question of
some difficulty. It would seem, that evidence
sufficient to furnish probable cause, must first
he examined, before the ac, used can be depriv
ed ot Ids dherty, or any set urity can be requir
ed oi him. Yet, bet ,v this could he done, he
might escape and defeat the very end of the
examination. In common cases, where a per
son charged with a c ime is ai rested and hro’t
before a magistrate, the arrest itself is preced
ed by an affidavit, vvbich furnishes ground of
cause. Ihe prisoner therefore is con
tinued in custody, or bailed until the examina
tion is finished. But here there has been no
arrest tor treason, and colonel Burr is not in
custody for that offence. Ihe evidence then
must he heard io den ‘mine whether he ought
to he taken into custody. But as the present
public and solemn examination is ve"v differ
ent from that before a si glc magistrate; as
very improper cfTcc's on the public mind, may
he produced by it. I wish that the court could
be relieved Loin the einoaitassii.g situation in
I x yVVi w
vhiih it is placed, ard exempted from there
cessi y idgi u.g any opinion upon the cast- pie
viousiy to its Icing auen upon Ly the grand
juiy. 1 is the wish ol the court ih..t the pet
sniial appearance ol ooh r.el Bmr could he se
emed. without the nctessi y of proceeding in
this enquii y.
Colonel Burr rose, and and served, that he
denied thericht ol ihe citnito held him to
I b. il in this stage oi ih< pit ceetiii gs; that the
; consiilutit.n <■! ihe United States w..s against
it; declaring that no person shali be attested
w iilv,tit ftrobubh ccu*c, made out Ly oath or af
firmation ; but if the court xveie embarrassed,
he w tnd relieve them by consenting to gi.e
bail; ptovided ishould be understood, llg.t
no opii ion on the question, even ol probuUe
aius , was pi out un; ti bv th.e touil, by the cii
cumstance oi his giv ini bail. i
1 he Cn ikf Jv si it t s..iu that such was the
meaning otilie couit.
Mr. Martin said, foi his part, he should
prefer thatai the evich nee should be fully gene
into. Instead of fearing that pub ic pieintiice
wou'd theiehy I.e exciied against coionet Burr,!
he believ ed it would remove ail the piejudices!
of that sort whic.ii now prevailed.
The Chief Justice. Asa hill will proba
bly be sent up to the grand jury, the court wish
es to declare no opinion tiihei way.
Some convei ation then occ lined relative to
the (/van turn ot Uuii; and colonel Burr n en
tioned (hat he would ptopose that the sum
(should be ten thousand dollars, if he should be
able to find security to that amount, of which I
he exprt- ed innisell to be doubtful. Mr. H.,y j
contended that 50 000 dodars would r.ot be too
much ; but the court finally accepted of the 1
offer made by cofont. Burr ; who. after a short
iuerval, entcrc ! into a recognizance with four
j! securities, to wit, Messrs. Wm. 1 angbouni,
j'l lion,as Taylor, John G. Gamble and Luther
S Martin—himscl! ii; tfie sum of ten leousand
l dol.es, and each security in the sum of two
tluinaud live hundred dollars—conditioned,
■ lha. lie would appear to answer the charge
£ offeason, and not depart without leave of the
court.
[j Air Martin*, when offered as secuiiiy for
j) col* pel Burr, said, that he had lands in the do
ji triclot v irginia, the value ot which was more
! j than double the sum ; at.d that he xvus happy
I to have this opportunity to give a public pioof
g ot his confidence in the honor of colonel Burr,
J and othis concur ion that he was innocent,
j Ail further proceedings in the case were
j thereupon postponed until the next day.
Friday , May 29.
!The grand jury were called over, and again
adjourned until Saturday morning, ten <> ’clock,
but general Wiikinson not having an ived, no
thing else was vione.
Saturday, May 30.
General Wilkinson failing still to appear,
nothing wasdone this day relative to the trial;
of colonel Aaron Burr.
Monday, June 1.
The grand jury having been called over, Mr.
Hay observed, that lie lelt great embarrass
ment and difficulty, as to the course which
ought to be pursued. He had confidently ex- 1
peered the an ival of general Wilkinson, and
was di- appointed. He vv as therefore unwilling
io subject the grand jury to the inconvenience
of farther attendance—but he thought it pro
per to inform the court that he had t his morn
ing received a numtjer of affitkr. i's of witnesses
residing in the neighbo. hood of Chi.icothe u"d
of Blannerhasset’s island, which bore directly 1
upon the charge of treason against colonel
Burr. hese affidavits, however, according
to the opinion lately giv en In* the court con
cerning me affidavit of j acoh Dubaugh,
were not admissible as evidence, and would
not be permuted to he read. He expected to
hear from general Wilkinson, pis he should
not appear i.i person) bv the Lynchburg mail ;
which he understood vvouhl arrive on Wed
nesday morning. He therefore hoped that the
grand |tiry vvotild not be unwilling to make a
farther sacrifice of a portion of their time for
the public good, and would consent to wait
with patience.
I he grand jury were adjourned until Tues
day ten o’clock.
7';trgdav,Jur.c 2.
The grand jury xvere called and attended,
hut (general Wilkinson not having arrived)
were agai.i adjourned until Wednesday morn
ing ten o’clock.
Wednesday, June 3.
The court opened tit 10 o’clock, pre
sent the honorable Chid” Justice Mar
shall, and the honorable C. Griffien.
The grand jury was called and retired
to their ch. n.ber.
Mr. Hay said that he had had some
conversation with the gentlemen associ
ated with him in this business, and from
further information which he had re
ceived, and calculations which he had
made, he was of opinion th tt general
Wilkinson could not reasonably be ex
pected hi re until the 14th or 15th of
this month, and proposed that the
grand jury be called again into court,
and adjourned to some future day.
He was anxious that the business
shou’d be finished this term, and wish
ed to know ii’ tiie counsel on the c:hcr
side Lad any olxct’cn to this prepo
ha!.
Mr. W ickh a m had r,o objection,
provided, that the grand jury would
Le certain to atier.d u, ti ecny aj point
ed— Ke thought, however, that if ge
nu; 1 Wilkinson would be here duiing
the present turn, that we vend l ave
son e account cl him in a vtiy lew
days.
Mr. Hay had made a calculation,
by which it appeared to him impossi
ble that ger.en.ii Wilkinson ccu.ci pos
sibly be here in less than a fortnight,
il he had come by land—that the dis
tance to Nev.-Orleans was 1370 miles,
and‘if general Wilkinson was coming
on by land he must travel a horse back,
there was r.o other way of travelling a
greater part of that ccuntrv —he did
not suppose that general Wilkinson
could travel at a greater speed ih: n
about thirty miles a day, which would
take up 44 day s to reach this pi, ce from
New-Orieans, and if he started early
in May, as he had reason to believe, he
could not be expected to arrive here
before the 14th or 15th of the present
montl —the court knows the perilous
situation of that phee. He wished to
know on what cby the grand jury
should be called igam.
Mr. Wickham observed, that the
last information received hem the se
cretary cf war, stated, ihat general Wil
kinson should be here by the SBfh or
3Cth of h st n.cmh, and ii there were
any new information
Mr. Hay mentioned a letter from
governor Claiborne, which confirmed
his opinion that general Wilkinson h and
set out from N.-Orie; ns early in Mi y.
The Chief Justice observe cl,
i hat in the- interval the busine'ss could
not progress, and that it would be best
to call over ;he grand jury and adjourn
them to seme given day.
Mr. \Y ickh a m should not oppose
the motion—if there were a certainty
that the attendance cf the grand jury
could be at that time obtained. Il the
government had dene its duly (and he
had no doubt but it had) general YY i!-
kinson must have been summoned in
time to have enabled him to appear
here by this time.
Mr. Hay stated that Mr. Perkins,
who had better means cf travel.it.g
titan general W ilkinson, having th.e ad
vantage of taking fresh horses where
ever he could fmd them, and wherev
er they were wanting, took 33 or 54
days to travel from Fort St< ddert, ai
ihoueh possessed of every meats to
f ciiiuite his journey aid render tra
velling expeditious. General Wil
kinson could not be here in ‘his time
—“ He is on his wav ; at el that he will
infallibly be here, as sute as he is a liv
ing man, 1 am confident.”
Heie the grand jury came into court,
and being called over, Mr. Hay renew
ed his former observations, staling,
that general Wilkinson, who was a
principal witness, was absent, aid that
lie expected him in a Tort time—v as
unwilling to put the gentlemen of he
grand jury to the inconvenience of at
tending from day to day, ar.d wishc cl to
know what time it would be agieeabie
to these gentlemen to be again called
over.
Mr. John Randolph. Anytime
will be agreeable to the grand jury that
will be convenient to the court and to
the parties.
Colonelßurr mentioned the si'u
ation of the witnesses who had come
from a very great distance. He stat
ed the distance from New-Orieans to
be nearly the same as that travelled
by Mr. Perkins, and that his journey
was performed in 31 days—that the
calculations of the gentlemen might be
more accurate, but if general Wilkin
son was coming, he would probably be
heard of very soon. He appeared txy
doub% as the gentlemen of the grand
jury lived at a great distance, whether,
if they now separated, something might’
not prevent them from an attendance
on the and v which should be appoir.ted-
Mr. Martin submitted whether
it is not better to conti. ue by adjourn
ments from e 1 y to day, as general
Wilkinson, ifnowonl'h journey, must
very soon be here. He t tought that