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Veatlrtnatt iraduifcd the expression of 1 Fn- |
r.eer of Blood.” But surely it would not 1
Faveefcaped him. had he hut for one mo*
mnt ferioufiy reffcfted upon the court
whom he had addrcfTcd, u ton the couuf 1
he opposed or the gor -mment. Satisfied
es this Mr. Hay laid he Ihotild p.ifs the
observation by, .■■i'.hout further nr.tice.
Mr.Randolph (hired that no-finiihir case
had occurred in his years predVce. It
w. not wonderful that such srrafe had not j
occurred. (Mr. Id Iv rc expatiated at feme ;
length upon the difference be ween the j
State Courts of Virginia and the federal
court.) He proceeded then to ub ! **rve, that
the United States was am fterenfive roun
try, rctnpared to the ftatc ot Virginia ; that
am .ft material witness might he 1500 miles
from the court,before whom lie was to ap
pear; and that he might be at the fame
time at the head of an armv ; in a'l which
circumstances, the f’ deral and the ft <te fo
stcreigntics were dilFcrent. So t! at litis
difference altogether defeared the ai'plira
tion of Mr. R’s experience, to this lu'>j. <ft,
even if that experience had been admitted
as a good authority in the State C- urls But
even that gentleman would a Imit.that had
a ftmilar case occur eJ before the state
courts, the accculed would lit ve been com
mitted.
MrNlandolph sfferta, tint this motion
is made to draw forth the opinion of the
court, and thus to prij’dicate the minds
of the grand jury. But Mr R has cer
tainly forgotten, that this intelligent and
impartial jury is on their oaths and their
coufeicnces; at.d furi ly this cou r t will not
pay lb lift e compliment to their in epen
dei.ee, as to admit, that its own op.ninn
will he fufßcient to bias their judgment;
ti orr particularly too, when the point be
fore the court is so different from that be
fore the ju y It is the bufi efs of the
court to c. ramit; a-’d of the Jury to iu
ditft : ami it is rett in y the privilege ol tlie
court to decide upon 1C r> en toft: ony al
though that poin. ishd’l so pertecftljr eft.tfr
lilhed a'dfeued a. i rcla's to the Gr nd
Jury. How the court would decide up
on'his point, Mr Hay laid le could, no
pretend to kno w.
There is another csrufideration, which
fhnuld he weigh and by the oppofrte rm.n
l'd Thegrat dju y s now a.n v embo
died. They arc re dy to proceed with any
bitfiuefs which may be brought heftre
them Bur my great object fo.l Vlr. H is.
to pr fee ire Col, Burr on the chug.- of
treafm Im ke this decl .ration, bee uC.-
1 hel.eve him to have been guiltv of it
Let u f.ppofe, however, that the grand
jury vra t . dich rge Col B from the mtf
dememor; and the • t l at I was to bring
the pr sent motion btf re the court; what
ref, urce then woo'd Mr. Randolph ..have?
From the prtfent proceeding, however.
J/|r/ 11 wool I derive theadv ntaye fan im
mediate trial; whereas, accordt- g to the
ther mode of proreedi g e.’ks iic months
might lapse bet re he woul I he brought
to mV. And certainly it is in every point
of view more defiral le ho h for the go
vernment and himfelt to terminate this
hufn.cfs at once, than to imp fe tip n us
the neceCity ot moving for an a Ijou nvd
trial.
Mr. Randolph frvs, “we are read v ;
We were ready ott we were ready
on Saturday, Ac” Mr, t .ere a * two forts
of readioef; one in p< itr of .aiit, and
one under c rtaitr c rcuaift nice* Now
these gentlemen would frarcely pnrfuade
tne th it they ct uld be ready to refi t the
whole weight of evidence it it weir rea
dy to be laid I efore thrm;but there is cer
tainly no di'f'C liy tn hel evi. g, that ibry
are now rearly to pr eeed to tri and, w.brn
the wli le evidence an I particularly Getj
Wilkit.fon’s. is not p-efeut.
One more remark l A",r. U Ins exp effed
a r. ve cnce tor Mr Jeff if t.. which
Is not certainlv ile-ived from • i ifli g ronli
dera':ons. 1 will m ke but ot e rnvrk,
and that genthman cv.;l agree with pi in
the opi ion; lewcy tie many pe pi and
globe through all ages ad n tio s, and
you will not find a man more anxiously
bent upon prontoti. g the liberty o’ the
people. Tl.is was rert ioly the i'ea
which Mr Randolph in ended to c nvey.
Mr R nex. proceeded to Mr. Macii
fon, up m whom h hts no h fi ate I to la
villi the molt u ref reed etc m um .
Surety then after thi folcmn declara ion
of the t itled ci uufet for the prif tier, we
shalt hear in* more In ut p • feeutiou. Sr,
it is a fta eof ho gs wine ■it is im >o(Eble
to recotic le with the amiable character
aferibed to the two fiift officers in ti e go
vernment.
Mr. tVicilim nhftrv'd that he fh-uld
offer a few remarks on ihe lupp ementary
arguments f Mr. Hav ; that m tlti. c fe
Col. B s couufcl trad ca ted—they had a
tight local—tor the precedents—rhar vlr.
Randolph, who had lo ably repref. ti ed
this commonwealth, as a crinsi al pr.feru
tor for toyetrs, had never known a 1i g!e
one to j fttfy tins motion; th t h> wcver
true it might be, that he (late ot Virgi
nia was now off nailer extent th u the
whole of the U.iiie t t>U.e>, vet that it
was then cut up tntc small judicial dilliieli
as the United State- at present a'e. and
that ‘he witueffes in a minima 1 prosecuti
on might have been Icattered tvc lh. le
diftritffs, as ihty aic laid to be in the pre
sent ctrcutnftance ; that Mr. ‘tanno ph
had reprtfien ed tut one ot these iftnei ,
but the whole, not inly onthi: fi eo toe
mount tins, but beyond hem; amt e e t
the uncultivated region ot Ke; tnc y,
where travtlli % svas at that time ha.de to
JTom.nv etilE.ulties. and fem tvliich it
Was fd extremely laborious to t.anfport the
witness s t>. t’ is fu'e of the mou tain; that
It wyis u t un'tl Kentucky had been nv re
thickly populated, that a particular court
hao been clldit ilhei there.
And what is the Cufe in'En
gland and her dependencies ?
Certainly (hat iflitrd is not e
qually extensive wuh the Unit
ed States, tut her iubjeds may
at ail < * nts be Icattered ovet
the world. Why then is there
lo precedent in that country t
Ts it rot poTnble that a man
ro iph* happen to be as far from
the Court of King’s Bench, as
(Jen. Wiikinfon is from this
Court ? And yet there is no pre
cedent to jo(lifv ibis motion.
What is the crime P Is it of
so li'tle importance that this
court, upon tbe produdion of
every Hide affidavit fhouid con
tent to hear new motions for a
commitment ? I his crime is
T tea lon ; it is “ a levying of
war” a gain (t the United States.
And where is the proof of it ?
Where was Col. IVs forces ?
Was his army, like that of
Bayes’s, kept indifguife? “ il r
kiri'on’s tedimony cannot efta
bltlli Bus f'aM ; for it is the opin
ion of die Chief J u<1 ice that
his affidavit does not at ail hear
upon this fubjefcf; aid yet two
inott'hs have lince eiapfed, and
no tedimony has been collect
ed. Wifki ’ Ton’s deposition
contains an improbable, myf
terions taie, about a Key and
Cypher : Mr. W. laid that he
won and not at present expose
tit:s traniaClion ; but does this
myffetions tale conditute trea
fxi ? “ You, fir, have already
drcidt'd that there is no trea
ion, in Wilkinson’s depofi i.
on ; but were the man him
Icif in court, what could fie
eiiabi sh further than his depo
It ton can du ?”
Mr. .Hay is fatbfied, that
be has fnfhcicnt evidence to
convict Cob Burr. No man
doubts’ hts abi'i y, or his me i
naiioß to difeharge his duty
Whv then does he not i.tv his
indictments befote the JurvP
Becaule there happens to he a
man in New-Oi leans, and one
pet haps in the Eafl-1 tidies; and
tberefoie “ t< make adiirance
doubly lure,” he mult wait for
their appearance. And all this
too, wbiid die gentleman, molt
ferioufiy protelis againlt op*
prellion arid delay. Though
the gentleman may not he con-
Icious of such a sentiment;
t ere mult dill be something
i like it in his heart ; But what
I evet may be the inoiive, the
i rel'ult to odrfelves is the fame,
i It produces delas , and all its
coufequent opprefiions. No
j court ihyuld fauCtion this pro
-1 ceeding. 1 his case is like that
j of a man whole cause hands
i sot itial. When Subpcsnas af
i ‘C’ SnbpcE as ha> e hten ifl'i
td ; when linns alter Turns have
been expended; hem >ves for
a continuation of his luit. At
tne very fame t time he mbits
I upon the iufficiency of his evi
j dime. Suie y the court would
; i uie Imn lo 1 rial.
Why is not the Attorney for
j the U. S. ready lor l'ti=l p He
! has indeed made a compuiati
j on of time to show that Wil.
; kin.on could not have been
| hi te bvfoie this pet iod ; and he
| has beftdes introduced an afti
j davit to blow that an express
I was on his way to Orleans to
him an early summons.
1 here is however, nothing in
pi oof that the drawer of this
ofiidavtt was not imposed on
try this express ;.or that the ex
ptels hitmeif was tiot
as to the contents of Ins dis
patches. And how ft-mds the
eomputation as to time? Ihe
Poll goes from Wafhmgton to
N. Orleans in 17 days. Mr.
iCodney left this city in the
ad of Match. The txpreis
.null therefore have reached.
Ntw-Orleaus about the 2011
<f Apni; and yet where is \\ 11
1 tulou? fhouglt the Mtiljiiip
pl tuns down to New- O: leans,
artd c>ppoles a ilrong curieut
to those who afeend ir, yet it ts
surely a reafonahle propobu
on that on land it requires no
longer time to come than to go.
And yet General Wiikinfon is
nor here!
Tdr. Hftv snvs it is of no ronse
onence whether the grand jury is
present or not But is this con* j
ernant with the sound principles
of law ? Is it constitutional, sir,
whore there is a particular bndv
sot apart for the investigation ot
fans, for the court to step in and
rudely take this power from
them ?He savs that perhaps he
shall not send up his bills h“fo , -e
the present brand Jinv. Bull
truM in God, dr, that this deu r
nvna'ion will be overruled by the
court ; and that if this prosecu
tion is ever to be closed, we may
see the curtain drop upon it now
arc! forever !—lf, sir, the prose
cution obtain* a postponement of
this trial and for want of evidence
on their part, we might proper
ly contend that Col. Burr,if bound
to bad at all should be held in a
smaller recognizance than at pre
sent. But we shall wave this right.
It is not our wish to discharge
the Grand Jury but to set this
question to rest forever.
1 We have said,that we were rea
dy for trial. We are so, sir, in
fact as well as in the abstract.
1 he prosecutors sav,that we do
not believe them to be ready. But
how the gentleman can suppose
that ive mean to pay so poor a
compliment to their veracity, as
to believe that he acts upon his
own lacts as if he himselldidnot
believe them to be true ?
1 he gentleman, sir, has warm
ly > uingiaed the p esent admini
stration. Asa pr iva e crizen, sir,
| no man has less to sty with the
j politics ot tliis country than my
self. Plat gendeman has drawn
a picure of our national pros
perity ; and I am happy to hope
ihat u is true to the life in every
thing, one feature only excepted.
What, however, will he say of
the persecutionof mv client ? Sir,
let that gentleman draw the most
animated pictures of our happi
ness .vliich his imagination can
supply ; let them be howsoever
cheering or howsoever just,it will
be but little alleviati-m to the
wounds of my persecuted client,
that he is the only man in the
nation whose rights are not secure
from violation.
Saturday, June 13.
The court have been occupied
dir mg the last three davs, on the
ran ion to obtain a sub cen duces
tecum addressed to the President
ol ‘he Un ted States.
We have de ailed a part of the*
argument that was maintained on
Wed nesday on this subject. iVIr.
Martin was followed by Messrs.
M’Crae, Lfotis, Wiit and Wick
ham.
On Thursday the grand jury
were adjourned over till to day :
and the aigument was resumed
by Mr Hay who was succeeded
by Mr. Randolph.
On Friday, the argument was
continued by Mr. Martin and
closed by Mr Burr. The court
have not yet given their decision
on this interesting point. Mr.
Burr observed, that as general
Wilkinson might now be expect
ed in a shott time before the
court, it was desirable to obtain a
prompt decision'.
On the conclusion cf this ar
gument, Mr. Burr addressed the
court : iie observed that this was
perhaps the most proper time
for renewing the motion, which
he had some time ago made to
the (Ourt, about giving more
specific instructions to the grand
jury, on certain points ot cvL
lienee. Tnese points he had re.
duccu to writing in the form oi
abstract propositions, which he
would >ake the liberty ol reading
10 -he court :
The following is a list of those
propositions wuh the authorities
cued to support them ;
. t. 1 hat the grand jury cannot,
consistently wan thetr oath, finu
a bill except ou such'testimony a.
wouid justify a petit jury to tjud
the pii*ouer guilty.
roller, zy., fee. 8— SN Infti'ute, it— 'd
InHitute, 384 Dalton, 5, 9—Jndee.
Wilson’s works, vol. 2d 364—T. W
Williams’ Juftire, Sd. vo l . printed 1794
—3d Stare T. 419, 4’° & f,r J- Hawle’s
observations, a S. T. 183—4th Black.
Soi to 306—2d Hale, chap 8 page 61
Wilson’s edition with Wilfjr.’s note—
-2d Hale chap. l2.page lJ7,with Wilson’s
note—id Hale chan. ”2, p>ge I 69, with
WMf.m’s note —hunt mn> Uici 2d fee. 39
p-.gr, Ii t 5 6—State T. page 3 —Porter,
P g- 232, fee. 8
£. That no testimony or wit
nesses oupht to go to the grand
jury but what are legal and com
perent to support the charge about
which the enquiry is made.
Daaby’s ca f e, Leach, 443, chap. 187
D dJ’s case, I.each, bg ch ip 77—Com
nr nwcahh of Virginia vs.H pham War
les ;nd D ws bttore, the G. Court at
Wi lian.fburg.
3 That the grand jury cannot
return a bill for treason for levy
ing war against the U. States,
unless they have two witnesses
who swear to the overt act of the
treason laid in the indictment;
both which witnesses are believ
ed by them.
Eaft's Crown Law, chap. 2d fee. 64.
That both murt be believed. 3d (late tria T ANARUS,
page 56.
4. That there must be two wit
nesses to the grand jury of each
overt act, follows also as a conse
quence ftom the former position,
that they must have such testi
mony as would be requisite for
the petit jury.
5. That the grand jury cannot
find a bill for treason in const-,
quetice ot anv confessions made
though proved by two witnes
ses.
Feller 211-3. 481/ek.
Conftituii m of the U 5. a-tide S I fee. S
Graydon’s Digest, I* Judge Iredell'*
eh erge—Fries’ trial, 171 174 v. Fait, 96-
97-
That as the grand jury only
hear evidence on the part of the
state, if upon that evidence they
entertain a doubt of the tiuh of
the charge, they ought not to
find the bill, as the presumption
is ever in favor of innocence.
Ift McNally, S to.
7. No act of a third person can
be given in evidence against the
accused to prove him guilty of
treason, or of a misdemeanor un
der the law of sth June 1"94, un
less that act is proved to have
been committed by the advice,
command, dnection, oc instiga
tion of the accused, if done in h ; s
absence, or if done in his pre
sence, unless it be proved that
the accused was aiding or assist
ing.
An aift (hall hind a pirfon connected with
the aift, but the declaration (hall not bind
him, because no part of Ihe atrt.
McNally, 6' 5 to 6 16.
8. The declarations of others
cannot be given in evidence on
the present enquiry to support
the charge cf treason, or of a mis
demeanor under the act of con
gress, 15th June, 1794, unless it
be proven that the accused was
present and assented thereto.
Fart, 96 —in case of coi fpiracy, cnnftfßonj
good ag:u 11ft hi.n who makes them, but
not against others, Peake B. Conftfs.
Peake 7 Hcarfay— Kelying, i8 h;Mc
Natly, 40-41, confi.ffiuus of one cannot
be read against others.
3J (late trial 374.
A relation of what had been dene no evi
dence.
McN lly, 616.
Declarations of other* is not evidence.
4 (late trial, 1 92-196.
6 State Trials, 218. in the presence of o
tlurs, they aojuiefeing.
McNally, 61.
Mr. Hay opposed this pro
ceeding. He contended, that
the com t had no right to give
specific instructions to the grand
jury, after they had been once
generally charged by the court ;
that such a course was contrary
to all law and all precedent, that
not a single instance could be
quoted to support it; and that
there were cogent and in this
instance particular reasons why
_criminal prosecutions should be
suffered to progress without these
inter-uptions. He further con
tended, that the Chief Justice
had anticipated such a situation ;
and that the language in his
charge clearly indicated his ex
pectation that this would be laid
before the grand j try on the
ground of treason ; and that un
der this expectation, the Chief
Justice had dilated on the nature
of treason, and given all th e j v
formation which he thought m a .
terialthat there were no reasons
at all why, A. Burr should en
jov greater privileges than any
other man ; why he should takeun
all the old, musty, and absurj
doctrines of ant'quity and hav
them enlisted in his service ; ami
that he stood on ihe very same
ground a3 anv other man : that
perhaps aU the prepositions on
Mr. Barr’s list would not i, e
wanting at all ; or if there should
be any necetsity for them, that
questions might he discus,
sed as they successively arose
that these discussions \>oukl ne
cessarily consume much of his
own time as wi ll as the time of
the court, which might probably
be devoted to more useful pur.
poses : and after all, the grand
jury might refuse to hear any i n .
structions, and in that case'hotr
could they be c'ontronled l>v the
court f If the grand jury deter
mined to pay no regard to it, 0 f
what avail would be the recoin,
mendation of the court, for it wj
in fact no more? And if they
were to find according to their
own opinions, and in the oi l wav,
how could the court know of this
variation? And how could they
rectify it?
Mr. Botts replied. IF stated
that the gentleman had demmdvd
precedents ; and yet it was but the
other day when that, very gentle,
man had enquired, why we so con.
stantly resorted to precedents;!
why we did not sometimes consult
the principles of common sense;
that the grand jury were not th-u
law less mob, which the gentlemao
had seemed to represent them jdt
that they would not certainly act
against the law', w hen it was pro
perly expounded to them by (lit
head of the court 5 that al 1 hough
the chief justice’s charge was ex
tremely able, yet it was itiipo'Sibie
that it could be so comj rt liensire
it might now be made, f. cun the
information which has since uc-l
curred ; and that the vtrvmievl
sity of giving any charge at al/,I
fhr wed ihe propriety of pvtfccuv.gl
it; that it was not Col. 13uvr’ de-fl
sire to consume much time, asitl
was his most earnest wish tottdß
at once the bonds ol recogai-B
zunce and the public prej ulice*
which surrounded him; ai.d
they were even willing to iiiuv
their share ot the discussion 10■
particular time. I
The Chief Justice
that it was usual and the belß
course for the court to char*
the jury generally, at thecowß
mencement of the term, ana fl
give their opinion on incidsnfl
tal points as they arose, viefl
the grand jury, themfehefl
Ihouid apply to them for
formation ; that it was n> in ß
le It I v improper to commit sfl
opinion of the court on poinifl
which might come before the®
to be decided on the trial ■
chief; that he had g cncra fl
confined his charges to a ®
general points, without iaur. j
mg into many details; one t®
(on was, that lomc ol the m
tailed points might never >■
during th? felli >0 V
grand jury, ar.d any infdfl
tion on them, would of con®
be unnecessary ; another
that fome of thele points ft’ 1 ®
be extremely difficult to be®
cidej, and would requi re B
argument of cour.fel; btc 3 ®
there was no judge or fi®
who would not often fin fl
foliiary meditations of his c®
et very much afiified 0) fl
difeuffions of others; t- 2l fl
would have had no dittict®
however, in expanding ■
charge, if he had been P a ‘ fl
larly requelled to do G~B
he cquld have anlicip 3 *’" 1 fl
necessity lor it, and ■
would have no diftcj 1 . H
giving his opinions <-t [
on certain points, on w
could obtain a dHcuffion fl