exist. But it is said that the certificate is the same with that in Wilkinson's affidavit.

If this objection had been taken and overruled, it would have ended the question; but it was not taken, so far as is now recollected, and does not appear to have been noticed by the court. It is not recollected by the judge who sat on that occasion to have been noticed. A defect, if it be one, which was not observed, cannot be cured by being passed over in silence.

The case in Washington was a civil case, and turned upon the point, that no form of the commission was prescribed, and consequently, that it was not necessary to appear on the face of it that it was directed to magistrates.

That it was the duty of the clerk to direct it to magistrates, and he should not be presumed to have neglected his duty, in a case in which his performance of it need not appear on the face of the instrument.

That the person, intending to take this exception, ought to have taken it sooner, and not surprise the opposite party when it was too late to correct it.

But the great difference is, that the privy examination was a mere ministerial act: the administering an oath is a judicial act. The court is of opinion that the paper, purporting to be an affidavit made by Dunbaugh, cannot be read, because it does not appear to be an oath.

Mr. HAY observed, that as the examination of colonel Burr for treason had already taken up much time without any progress in the business, and, from the disposition manifested by his counsel, it might last not only ten days, but even ten years longer, he considered it his duty, from information which he had received that morning, to suggest to the court the propriety of binding colonel Burr in a further recognisance from day to day, till the examination could be ended. He stated, on the authority of a letter just come to hand from the secretary at war, that general Wilkinson, with several other witnesses, might be expected here between the 28th and 30th of this month. This circumstance, said he, renders it essential that he should be considered in custody, until he gives security that his person shall be forthcoming to answer the charge of treason against the United States. The gentlemen, who appear as counsel for colonel Burr, may be, and no doubt are, sincere in the opinion they have expressed, that he will not shrink from the charges exhibited against him, and will not, in any conjuncture of circumstances which may occur, fly from a trial; but those gentlemen must pardon me for saying, that I entertain a very different opinion. I must believe, that his regard

for the safety of his own life, would, if he perceived it in danger, prevail over his regard for the interest of his securities. I give notice therefore, that I consider him as being already in custody to answer the motion I have made for his commitment, and that he cannot be permitted to go at large without giving security for his appearance from day to day. His situ ation now is the same as that when he was first apprehended and brought before a single judge for the purpose of examina. tion. Your honour at that time considered him as in custody, and bound him over from day to day; and I only contend, that the same course should be pursued at this time.

Mr. WICKHAM.-The gentleman thinks he has obtained the effect of his motion, merely by having made it. I cannot perceive the propriety of a motion to compel colonel Burr to give bail in any sum, before the probable cause to believe him guilty of treason has been shown. When he was brought before your honour for examination, you conceived the sum of 5000 dollars sufficient security for his daily appearance. But a recognisance has already been given in double that sum, binding him not to depart without the leave of this court. Yet now, although no probable proof of treason has been exhibited, Mr. Hay requires the court to demand of colonel Burr additional security! I trust that such a motion will not prevail.

Mr. MARTIN.-It has been already decided, by the supreme court of the United States, that not a single expression in Wilkinson's affidavit amounts to any proof of the charge of treason. The motion of the gentleman amounts to this: "We have no evidence of treason, and are not ready to go to trial for the purpose of proving it; we therefore move the court to increase the bail."

Mr. RANDOLPH.-The first motion of the counsel for the United States was to commit colonel Burr on the ground of probable cause only. This goes a step farther, and wishes the same thing to be done on the ground of a probable cause of a probable cause; but we trust that we shall not be deprived of our liberty, or held to bail on a mere uncertain expectation of evidence.

Mr. MAC RAE.-The gentlemen seem to consider the recognisance already taken as sufficient for all circumstances, and that colonel Burr will comply with it at any rate; but we have not the same expectation that he will appear, in case he discovers that sufficient evidence for his conviction has been obtained. When they speak of the sum in which he was bound on a former occasion, they do not recollect the circumstances

which induced the judge to take bail in so small a sum; it was expressly mentioned by your honour, that his having been brought to a place at a distance from the circle of his friends, and the nature of the offence, (a misdemeanor only) induced you to hold him to bail in that sum; and the charge of treason was altogether excluded from view in taking the recognisance.

Mr. WIRT. Mr. Wickham, in saying that my friend Mr. Hay thought he had obtained the object of his motion merely by having made it, clearly misconceived the object of the motion now before the court. The motion we made yesterday was to commit colonel Burr on a charge of treason: our motion to day is to hold him in custody to abide the opinion which the court may pronounce upon the question of commitment. The gentlemen say, that we have secured the object we have in view by the recognisance already taken. The court expressly excluded the charge of treason from that recognisance, which applies only to the misdemeanor. Let us suppose that the motion to commit colonel Burr was made out of court before a single magistrate: if the examination of witnessess in support of the motion occupied more than one day, would the magistrate let him go at large, while it was depending? Would he not rather, either have him retained in custody, or take security for his appearance, and renew it every evening until the motion should be determined? This is all that we ask of the court to do. The recognisance which has been given applies to the misdemeanor only. If therefore it should be forfeited by his going away, we should have had no security for his answering the charge of treason; a much more enormous offence, and attended with a very different punishment. We contend therefore that additional security ought to be taken.

Mr. BOTT'S.-I shall endeavour to place this subject in some measure in a new light. It has been said, that the former examination of colonel Burr did not preclude this motion; if so, every new edition of the volume of evidence would justify a renewal of the motion to demand additional bail. Thus motions might be heaped upon motions, and bail upon bail, until the perpetual imprisonment of the accused might be the consequence. It was a practice, in former times, to drown a person accused of being a witch, in order to try her. I think that practice is renewed on the present occasion, in another shape; a motion is made to commit colonel Burr for treason, before the evidence can be gone through by which alone it can be ascertained that he ought to be committed. The court are requested to predetermine the effect of the evidence, and commit, before they have decided whether they ought to commit: besides, no warrant has been issued against colonel Burr on the present occasion;

he has not been arrested for treason, and therefore cannot be considered as in custody for that offence.

Mr. HAY then made some farther observations on the importance of the charge of treason (which is of the highest nature, involving the reputation and life of the prisoner,) and the great necessity therefore of the most ample security to compel his appearance to answer it. He stated that this examination might last many days; that after the court had made up an opinion that colonel Burr ought to be committed, he might march off and leave the court to pronounce it; so that an order to commit might be made by the court, and no person found on whom it could be executed. Such an event, he said, would excite the laughter and scorn of all the people of the United States. He mentioned that an immense expense had been incurred by the government in collecting witnesses, and preparing for this trial; that therefore he did not wish the whole of that expense to be thrown away. General Wilkinson is expected to arrive between the 28th and 30th of this month: if he arrives, both the bills of indictment will be immediately sent to the grand jury. This is the first instance in which the ministers of the law have been requested to say to the accused, "You may do as you please, and go at large until we pronounce sentence." The gentlemen contend for new principles in favour of colonel Burr; but, I trust that greater privileges will not be granted to him than to the humblest deluded victim of his ambition. The circumstance that he has already entered into a recognisance to answer for a misdemeanor, is no argument to exempt him from entering into another on a charge of treason. Shall the accused clear himself of a responsibility for one crime by his having committed or being charged with another? This would indeed be to violate that maxim of law, that no man shall be benefited by his own wrong. Mr. Botts has contended that there is a difference between the case on the examination and that now before the court; that in the first instance a warrant had been issued, but none in the present; but a warrant is certainly unnecessary, now that the prisoner is before the court. The object of a warrant is to bring him before you. When this has been done, it is functus officio; here is colonel Burr, before the court. It is therefore immaterial how he came before it; but he ought to be considered in custody, until discharged by the due course of law.

The CHIEF JUSTICE delivered the opinion of the court, the substance of which was as follows: It is certainly necessary that a person accused should be retained in custody, or required to give security for his appearance while his examination is depending. The amount of the security to be required, must depend, however, upon the weight of the testimony against him. On a former occasion, colonel Burr was held to bail for his daily ap

pearance in the sum of 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 considered sufficient to bind him to answer the charge of a misdemeanor only, because the constitution requires that excessive bail should not be taken; but that recognisance had no application to the charge of treason. Yet, whether additional security ought to be requi red in the present stage of this business, before any evidence has appeared to make the charge of treason probable, is a question of some difficulty. It would seem, that evidence sufficient to furnish probable cause must first be examined, before the accused can be deprived of his liberty, or any security can be required of him. Yet, before this could be done, he might escape and defeat the very end of the examination. In common cases, where a person charged with a crime is arrested and brought before a magistrate, the arrest itself is preceded by an affidavit, which furnishes grounds of probable cause. The prisoner therefore is continued in custody, or bailed until the examination is finished: but here there has been no arrest for treason, and colonel Burr is not in custody for that offence. The evidence then must be heard to determine whether he ought to be taken into custody; but as the present public and solemn examination is very different from that before a single magistrate; as very improper effects on the public mind may be produced by it; I wish, that the court could be relieved from the embarrassing situation in which it is placed, and exempted from the necessity of giving any opinion upon the case, previously to its being acted upon by the grand jury. It is the wish of the court, that the personal appearance of colonel Burr could be secured without the necessity of proceeding in this inquiry.

Colonel BURR rose, and observed, that he denied the right of the court to hold him to bail in this stage of the proceedings; that the constitution of the United States was against it; declaring that no person shall be arrested without probable cause made out by oath or affirmation. But if the court were embarrassed, he would relieve them by consenting to give bail; provided it should be understood, that no opinion on the question even of probable cause was pronounced by the court, by the circumtance of his giving bail.

The CHIEF JUSTICE said, that such was the meaning of the court. Mr. MARTIN said, for his part, he should prefer that all the evidence should be fully gone into. Instead of fearing that public prejudice would thereby be excited against colonel Burr, he believed it would remove all the prejudices of that sort which now prevailed.