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161 B Ours are the plans of fwroeHghtfiil peace, Unwarn'd by party ts T-Jto live like Brot rothert. Thursday June 18, 180?, , No 404. Vol. VIII. RALE ' . and ;-, . ' . NoTihrCajrolma State Gazette v TRIAL Colonel aaron 35utr. (continued.) TThe following debate.' on the motion to L commit Col A- Burr on the charge of treason against the United States, was cons dered as not proper to be heard by the gra. d jury then impannelied, & was therefore not inserted But since it has already been admitted into the other pa pers published in this citv, we trust we shall' be excused for communicating to our readers the information which may be derived from it Virginia Argus. Monday, May:2j Debate on the moti.n to commit Col Burr for High Treason. After the grand; jury had with drawn, air. Hay renewed his motion in the following words z I now move the court to commit' Mr. Burr on a charge of high treason against the United States, on the evidence for merly introduced, and on addit onal evidence which will now be brought! forward." 1 Mr. Wickham enquired what sort of evidence was intended to be intro duced ? Whether that of witnesses to be examined vzva-J-cc, or affi davits taken in writing ? Mr. Hay answered that, where the wit nesses were present, he intended to examine them viva-voce ; but, where they were absent, to makfpHise of their hffidavits regularly taken and certified. Mr. Botts We may have cause of much regret that timely notice of this application was not given. From tli? engagements between the ptose cutimr and 'defending c unscl to in tercliange information of the points intended to be diacus&ed, we had n right toi expect that upon a subject like this, involving questions new and important, we should not have been taken by surprize. Indeed from the common courtesy and candor of the ,J till.!! (LtlUIVVill 4 i VI VU'IVIV. w 1111. Ik office of the a-torn , we might have calculated on the previous- commu- 1 II nication. Mr. Hay If the gentlemen are not prepared they cr.n take time un til to-morrow. Mr. Botts Not one moment. We may sustain inor.veniehcies by being thus suddenly called upon to act wiihout reflection, or bookv but we experience greater by a day's delay. The motion is to divest the grand j jury of the office which the cc-nstitu- tton and !.ws h ve appropriated to ih cm, and to devolve it on the court. Thsre is a grca: o:,jjc'ion to the exertions of the examining ai;d coin- who is to preside upon the trial. I . "lw "'" ""' picoui ?? : .,..! ...-..! . I tlon and tlicv nicrht to have been nrf- . . IT: is obliged Ji:viuum), iWKJUl U; lti ll heuviv.g". to commit himself upon trie case ol the accused. Everyone will agree that a Judge,' if possible, should come to the office of trial as free from prepossession . as if he had j never heard oi tne case hetore ; yet as the grand inquest is not always embodied, it often becomes necessa ry that tlie Judp-e should enouire in- to the offence and commit io m-evor.t the escape of the offender before the- inquest coidd be legally! organized. I he examining office of the Judre ii in these cases-justified by the iie-H cessity of the case. But the neces sity does not here exist. - This novel mode cf proceeding if carried into effect, would give the aiioincy for the United States the! chance of procuring an opinion from j ' therelore, saw r.Q necessity ior open flle court unfavorable to Co!. Burr:i; n'S lne wo; inn more fm jy than he laiiing in that chance he would then betake himsejf to the only legal one before, the grand jury. s Why should this court step out of its ordinary course to forestal or in fiuence the d.ciibt ralionsof the grand jury ? The object of ihe motion is Without prect dent or reason ; against to! principle, afnd would j)e most op pressive in it$ consequencts. The i:i-tci y of ur criu.inal jurisprudence yitUU no instance of such a motion ill; l ing the serfsion of the grand jury It is unreasonable. & against prin ciple that the functions of the in quest' should' be. suspended for the court to assume them It is not nly oppressive, ,m 0f a pieCe ui"h the Ving course of op , res on. wh.ch.has letn prac'iced upon the gen tie ma f wirom 1 :.ciocaU.- ;:S We might, with propriety, have, moved to dis-.harc-e Col. R L7 ' UUUi e:njn;.zince alveadyi given. The laws of Congress have adopt ed our rules and practice in the state in proceedings upon indictments for misdemeanors. You were of opinion, you wellremember, sir, that nothing more tharobable cause of suspect ing a misdemeanor appeared against Col. Burr. Even after an indict ment, in Virginia; for a misdemea nor, nothing more than a summons can go against the indicted. No court of the commonwealth ever permitted a capias to go in the first instance, unless the case passed sub silmtio, Now jrrest and bail are utterly in compatible with a summons : 'and surely if an indictee cannot be ar rested, one merely suspended can not be held to bail. ? The conduct of Judge Chase in awarding a capias was the subject of one of the charges in his lmpeacn ment. Mr. Hay vehemently and ably contended that a summons only ought to have gone against Callender. I know that the court may have an impression, that I am wandering from the subp.ct. Iwill soon show what application the past recogni zance' has with the motion now to examine the witnesses to commit for treason.. Notwithstanding Col. B. was com mitted upon a. charge of misdemea nor, when under the state laws he could not have been committed : a public prejudice has been excited a gainst the lenity of the measure and attempts hvebeen set on foot thro' newspapers, and a general clamour, to intimidate every officer who might have any concern in the trial. This public prejudice would be increased by ihe present motion rather than al'ayed, if the necessary explanation shuld not be made. The multitude around vis must hear what is passing, and we cannot submit to a course, which should further invest the pub lie mind with the poison already too . 11 ' a l 'lully infused, Prosecution, cf Col !-lt..i.'4-,-k linf Unlit 1 - A Burr has hitherto been without a chtck. The seizure of his fiitnds, his papers, and his person , the activity of the satel lites of power against him ; the use j of the low engines of military des potism in different de partments o( the territories of the United States ; j the total disregard of his rights and all law, inhr nging him hither, ought to end the list of wrongs of which the country has to complain. It,wtis rumoured that he would net appear ; but he has appeared. lie came on l iiday, on Saturday and on Monday, to meet his accusers. He did not i asrf. one hour, the government ha 'iii , it.. ,; i r : .ii' i r i ii ii m i 1 11 1 1 11 . r n v t.n.xkM ' . ; paiu. ia uui purpose was to watt the pleasure of the prostcmor, unless that pleasure should be found too op pressive. We are now told ihou;;h that t!ie indictment cannot go up, and that in the mean lime a.;, inqui sition must be held. I will not weary out the patience of the court. I sit down in anxious ;i solicitude that the success of the mo tien may not add to the catalogue of Col. Burr's grievances. The Chief. Justice supposed that lt was .int-'kd tne counsel for the Uniied States to open the motion more full v. Mr. Hay did not suppose that a doubt could have existed as to the power of the court to commit. He, had done. The general power of the court to commit cannot be quesitQt cd. If gentlemen say that it cnnnol ; oe exercised in tne present case, it I$lfs. '1d lhat he can take no final mea incumbent on them t shew i:. Mr. Wickham It would certain ly have been an -acccmniodution to us, if ihe gentlemen had given us no tice of -their intended motion. Vt come into thjx!iscu ':sion completely otif our guard, completely unprepa red ; 'u.id it may be presumed it warj mtrely an omission in the opposiie cotinsel, not to have given us notice ol the motion they intended to brin forward : becau e it was disiincth unders'ooc!, that if any specific mc ti'Un was to he made on either sidv, timely notice of ihe nature and ubjec' of tiuch mot on was to be given, i aniSfeorty that they have dt parte: frohyjkfty? agreement in the piestr i intantc' hu; if 1 have not forgone;. ev:ry pimciple of Livr that I ever learnt, or every principle of common justice, this motion cannot be sup ported. ' s Mr. Hay The gentleman will permit me to set him right. He might have relied on my candor, that when I was about to lay my. indict- ment betore the eranci mry, i wouia t have given film timely notice of my intention. They might then have moved for the instructions to the jury which they are so anxious to obtain. This was the onlv understanding be tween us on the subject ; and our agreement extended no farther ; much less to the particular case be fore the Court: On the other hand, there was a very strong reason against our making this communication. I feel no hesitation, sir, in assigning this reason ; and I hope that it will wound neither the feelings of the prisoner or of his counsel. I co not pretend to say what effect it might produce on Col. Burr's mind : but certainly Col. B. would be able to J effect his escape merely upon pay- one end ol the continent to the other ing the recognizance of hi? present has been enlisted on their side ; to bail. My only object then, sir, was to raise prejudices against Col. Burr, keep his person safe, umil we could Prejudices ? Yes ; they have iu have investigated the charge of trea- fhienced public opinion ; by such re son ; and I really did not know, but presentations, and by persons not that if Col. Burr had been previously passing between the prisoner and his apprized of my motion, he might country, but by expaite evidence Ik have attempted to avoid it. Bui I did not promise to make tins com- because it might have defeated th very end for which it was intended. I have said the only pledge I gave, merely related to the indictments to be sent lip to the grand jury. Mr- Wickham observed, that alter this explanation, he must suppose hat he had misapprehended i he ex tent of their agreement. He knew the gentleman too well to think he had .intentionally misled him. Bui what could he think of the motion he had made ? It was a strange epi sode which he weaved into his tale It may be good poetry, indeed, but it was not certainly mfuterofargument. Every man who heats me, every man who has ever read on the subject, must know what are the feelings which dic tate, those suspicions of A. Burr. Some mortification was felt I by his enemies (not that the attor- ney for the U. S. himself ever felt it) that he did return here fr trial. But here Col. Burr is, as he always zoill b-:, ready to face every man who! dares to say any thing against him The gentleman will not open his case and why ? Because, when he has Jieard our arguments against his mo tion, he may come out with the ad verse arguments against us. It they do not chouse to open their case, we hope the court will grant us the right of concluding the argument. Heie a desultory conversation en sued upon the order of proceeding. when it was determined the counsel of Col. Burr should open and con clude the argument. ; Mr. 'Wickham proceeded & read from the act of Assembly of Virgi nia, p. g'i 103 of the Revised Code sect. 10, as bearing upon this case. He observed that the present motion was also unprecedented in a system of criminal-jurisprudence, which upward of 100 years old. If the mo tion be a proper one, there must be some precedents in this countiy oi in England But if there be none such, and the gentlemeO havnot produced them, it is but fairo ittfe: hat there are none such. ItisKtrt- fore obvious that the present motion is contrary to the act of Vitginia as well as to the common law The attorney fo,r the U. S. has su'rc3 until Gen. Wilkinson is pre sent. His deposition is greatly re lied upon. Now, sir,1 1 refer to you as well as to the Superior Court of the United States) where you presif ded, thatlbe facts contained in tha deposition (if facts they w'ere) di. not xunount to treason : but to a pr . utble proof of the misdemeanor onlv As to Gen. Eaton's; it is not rehet. on. The sole reliance cfthc pros. -, ution is upon ' 'Wilkinson's. O! bourse, if Wilkinson w:e're preseni. he could prove nothing new. But i! Gn. Wilkinson is so material a vi--oess, why are they not prepared t--o with him before the grand jury i Why is not Gen. Wilkinson heiv r Io is a military officer, bound in plicitly to obey .the head of the g vernmcnt. i , In'the wars of Europe, a General has been known to march the same distance at the head of bis army in a shorter time than General Wilkinson has had to pass from N. Orleans to this place. He is bound to go where ever the government di rects him ; to march to Mexico, to invade the Floridas, or to come to this city. Perhaps there are Qthtr reasons for his not coming. But let us not press this subject. What, sir, is the tendency .of this application ? What is the motive ? I have no doubt but that the gentle men mean to act correctly. I wisli to cast no imputations. But the counsel and the court well know, that there is a set of busy people (not I hope employed by the govern ment) vho thinking to do right,.are laboring to injurihe reputation of my dent. I dotiot charge the go vernment with this .attempt. But the thing is already done. Attempts have been made. The press from mutilated statements. Ought not uus .court io uar tne ooor as i.r as possible against such misrepresenta l " i . i i r tions ? To shut every effort to ex cite further prejudice, until the cast is decided by a sworn jury, not by tht floating rumors of the day, but by" the evidence of sworn witnesses ? The attorney for the U. States offers to produce his testimony, no doubt he least impartial which he can se lect ; testimony which is perhaps to be met and overthrown by superior evidence. Do they, besides these things,wiah that the multitudearound us should be prejudiced by garbled evidences? Do precedents justify such a course as this ? "Produce your witnesses," they may say. No sir, Col. Burr is. ready for atrial, but he wishes that trial to come before a jury, j I do not pretend to under stand the motive which led to these things : it is enough that they pio duce the same mischievous effects upon ourselves. Should government hereafter wish to oppress any indivi- dual : to drag him ftomone end ol the country to the other by a n.ilitary force ; to enlist the prejudices oi the corrimunity against hina, they will pursue the very same course which has now been taken. Col. Burr is here ready for trial. They" admit that their testimony is not sufficient to bring him before a grand jury ; and of course to found m indictment against him. Why i hen is this partial evidence to be ex hibited on a motion for commitment? It is "o nourish the prejudices against him. Will they then press a mu. tien like this ? Be it so, sir, I fust th . court will stand bet ween i he p nsoner be his pursuers ; for every man is pre sumed to be innocent, before he is found guilty. r Mr. Wn t May it please your ho nors. The attorney for the CJ. S. btlieving himself possessed of suffi cient evidence to justify the commit ment of ,A. Burr for high treason, has moved the court to that. effect. In making this moi .n he has mere:y done his duty ; it would have betn unpardonable in him to omit it. Yet the counsel in the defence complain of the motion and. of the want of notice- As to :he latter objection, it must be palpable that ihe nature and object of the motion rendered notice improper. The gentlemen would. hae hadeUftirney to announce o the -.party actsm eme.d, that he was. at length,',iijvpossf ssion of sufficient evidence to Justify his commitment for high treason' f and that being ap- prdiensivfehe Tght not be disposed t o stand this charge, he intended, as .oon as the accused came into court next morning, to move his comrnit nent This would, really be carry ing politeness beyond the. ordinary pitch : it would not have deserved .he name of can dot,' sir ;it wouL. in fact, have been an invitation to the icctis-d to make his escape. But as gentlemen seem to doub:, with an.air ;t Last of earnestness, the nvoorietv t this motion at this lime, and ex )res.- tneir regret that they have no-, j lud tim to examine its !'?!i.y, tn; atfomey has offered to wave tlv mo tion until io-mrw, to give g ntle tven the opportunity which they pro fess to desire ; but no, sir ; they will not even have what they say 'hey want, when offered by the attorney. Ano her gentleman, after having de manded why this motion was made, . and by that demand drawn from the attorney an explanation of hi mo- lives, has been pleased to speak of the atorrys statement of his np prehehsioifoas ,an episode :" which " althongfi good poetry," he says, " had better have been let alone. when 1 such serious matters of fact were in discussion." Irmay be an episode sir, if the gentleman pleases j he is it liberty to consider the whole trial as a piece, of ep?c action, and to look forward (o the Appropriate catasiror phe. But it does not appear to me to be v-ry fair, sir, after having drawn from the attorney an explanation of his motives, to complain of thr.t ex planation : . if a wound lias been in flicted by the explanation, the gen Uemtn who produced it should blame only themselves. Bu, sir, -where is he impropriety of considering Aaroii Burr as subject to the ordinary ope rations of the human passions ? To wards any other man, it seem?, the attorney would have, been justifiable in using precautions against alarm and escape ; it is only improper when ' aftphed to this man. Ieally, sir, t recollect nothing in -the history of his lepfortment which renders it so very incredible that Aaron Burr should ily from a prosecution. . BtK at ail events, the attorney is bound to act upon general principles, and take ..are that j.ustice be had against every one accused, by whatever name he may be called, or by whatever pre vious reputation he may be disrinr guished. This motion, however, it seems, is not legal at this time, .because there is a grand jury in session. The a mount of the position i.-i, that aUho' it be generally true, that the court possesses the power trj fer and corn mit, yet if there be a grand ju y, this power of the court isi suspended ; and the commitment cannot be had unless, in co; sequence of a present ment or bilfof indictment, found bv that bod)C? ;The general power of fie. court being adopted, those, who reiy on this exceptioihould support it by au hor'r.y, and, therefore the loud call for precedents which wa have heard from the other -udc, comes improperly fi om that quarter. We ground this motion on the gene ral power of the court to commit a let those who say that this pr.wer is destroyed by the presence ofgtand jury, sjiew ona precedent UE&unte-' nance tms original and extraordinary motion. 1 believe, sir, I may safely affirm, that it&t a single reported ; ease or dictumvcan be found, which has the most distant beating towards such an idea, St, no such dictum or caUs: ought to exist ; it would be unreasonable and destructive of the purposes of justice. For if the dee trine be true at all, that the presence of a grant" jury suspends the power- t hear and commit, by any other au thority, it must be uniformly and uni versally true, in every o her case as well as this, and in every case which can be proposed w die a gta id jury is silting. Now, si, let us suppose, thjut immediately .pnthe swearing of this grand jury an&thcir retiring to heir chamber Aaron Burr had b.ietl for the first time bi'oughrto thi town the mcmbtrs of the evidence scat tered ovtr tiie continent ; the a'tor nty however, in possession of enough :t'gust?fy the a; rest and commitment of the accused for high treason, but not enough to au horise:a grand jury; to find a true bill. Vhai is to be' done ? The ci:rt disclaims any p wer to near anu eomiint. because there is a grattjury :-The grand jury cannot itdc! a true bid, becaut: the evidence is ; ot suffirient to war rant such findi g ; the natural and unavoidable ccnscq'uence .'would be, that the man mus; be d4schar,geil - AicfJ thir3, according to Gen., Wil kinson's principle oiethicsjthat eve- fry man is supposed tq intend the natural conseqvu nces of his own acts, the gentlemcii who auvueate this - ! discharged without a trial. wv.'i.v iiiw.iiu niii. :iaivii iJUIC IJC ycu, s:r, to recollect what was sa-'J by gen-.Icrnen'the othrr IF mi - . .... s ' , ' " v I ' ' i-i&y'Uh?
The Weekly Raleigh Register (Raleigh, N.C.)
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June 18, 1807, edition 1
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