he made. The candour of his testimony made it more a subject of grief and indignation, that the contrivance should be to put the whole responsibility on him. The introduction of the lawyer, to complicate the disguise, is another feature in the picture. I hope, for the honour of the profession, that there is some mistake as to the part he acted. Wilkinson is to be discerned through every part of the cobweb. He makes the affidavit; he sets the lawyer to work; his military officer becomes a deputy of the marshal to leave his situation without the leave of the commander in chief; a serjeant is the deputy of that deputy; the captain on board is under the direction of the general; to his care captain Gaines commits Knox through the serjeant; the military purse yields the money given to the witness; the vessel taken up by Wilkinson conveys him, and Mr. Gaines owns, that if the general on the passage had directed Knox to be put in irons, the order would have been instantly obeyed. What, a deputy marshal, as such, to obey the orders of a military commander! The insidious attempt at Hampton Roads, first involuntarily made by Mr. Gaines, and afterwards repeated by general Wilkinson, to seduce an acknowledgment, that the civil authority had transported the witness, may be connected with the other proofs. But the demand, by general Wilkinson of Knox's parol of honour to come to Richmond as the condition of his enlargement, would be decisive on the present question, if it admitted of doubt.

But you are gravely asked by Mr. Mac Rae to pronounce, that general Wilkinson deserves well of his country for all these his patriotic acts. What, in other times, and in other places, would subject a man to be suspended between the heavens and the earth, from whence his spirit should flee for ever, now calls forth the highest panegyric. I heard a compliment like the present from the counsel, when general Wilkinson was here on yesterday. I looked upon him and witnessed a smile, when the occasion was better adapted to a groan. It was a smile of the ghastly kind. It seemed to be of that convulsive sort which distorts the face of the dying. Perhaps general Wilkinson took a retrospect and felt the compliment to be a reproach. Thus prejudice leads gentlemen to praise acts of atrocity. This subject has been treated with singular levity, by the gentlemen in the prosecution. They have not ventured to justify the commitment of Knox. The farthest that Mr. Mac Rae ventured, was to risk the supposition, that the act of congress was of doubtful application, and might possibly apply. He in this tacitly yields, that there is no justifying the conduct pursued in the commitment. The gentleman who spoke last, reminds us, that "the sins of the fathers ought not to be visited on the children." I say then, that the sins of the principals ought not to be visited on the subalterns. Mr. Mac Rae concludes with reminding the court, that colo

nel Burr had enjoyed privileges that no one under prosecution before him had ever enjoyed. He said too, that you were perfectly right to hear us on this question. I submit to him whether the first remark were just or respectful to the court? In the latter point he differs from another gentleman on the same side, who has struggled much to prevent us from addressing you.

It only now remains for me to prove that your jurisdiction is commensurate with our purpose. The 14th sect. of the judicial act authorises the court to issue all writs not specially authorised, for the more perfect exercise of the powers vested in it. The power of compelling attendance and securing privilege, cannot be exercised in perfection without a power of attaching for contempts in the one case or the other. The dis-trict courts of Virginia constantly exercise this right of overlooking the purity of the streams of their justice, through all its branchings, without the district as well as within. The right of attachment overreaching the limits of the state, must result as incidental to the emanation of the subpoena to other states. But the rioting of lawless power continued from New-Orleans to Richmond. When it entered on the seas it was within the regular limits of your authority.

In a view to the privilege of the witness this motion must be sustained, if we be deceived in all our other grounds. What means the privilege, unless it be, that he shall have protection from abuse? Is it to assist in this privilege to imprison him? Is the privilege to exclude him from all his rights, and put him at the mercy of land and sea gaolers? If this be the enviable advantage of privilege, general Wilkinson will deserve well of his country for assisting to maintain it.

Knox was summoned before any of this violence was used towards him. From the moment that he was summoned, he was under your protection. The naked service of a summons must have proved, that your powers reached not beyond a summons until there were default. It was absurd to suppose, that what this court could not do for itself, a magistrate, no way connected with it, could unasked and officiously do for it.

I refer the court, without comments, to Supplement to Viner's Abridgment, 225. and 3 Hawkins, 275. on the subject of contempts of the court.

When Mr. Botts was speaking, [being about two o'clock] the grand jury entered, and Mr. Randolph, the foreman adressed the court; and stated, that they had agreed upon several indictments; which he handed in at the clerk's table. The clerk read the endorsements upon them in the following terms: - VOL. I.

2 Q

An indictment against Aaron Burr for treason—“ A true bill."

An indictment against Aaron Burr for a misdemeanor"A true bill."

An indictment against Herman Blannerhasset for treason"A true bill."

An indictment against Herman Blannerhasset for a misdemeanor-" A true bill."

Mr. RANDOLPH then continued: May it please the court, Although the grand jury have returned these bills; they have still other subjects for their consideration, and have adjourned themselves to meet to-morrow at ten o'clock.

After Mr. Botts concluded his argument, Mr. BURR addressed the court and observed, that as bills had been found against him, it was probable, the public prosecutor would move for his commitment; he would, however, suggest two ideas for the consideration of the court: the one was, that it was within their discretion to bail in certain cases, even when the punishment was death; and the other was, that it was expedient for the court to exercise their discretion in this instance, as he should prove, that the indictment against him had been obtained by perjury.

Mr. HAY moved for the commitment of Aaron Burr. He stated, that if the court had the power to bail, by the 33d sect. of the judicial act, it was only to be exercised according to their sound discretion; and that the prisoner was not to demand bail as matter of right, because the court was authorised to grant it, but by his making out an adequate case, and showing that he was entitled to it. He quoted 4 Blackstone's Commentaries, p. 298. to prove that this discretion ought to be deliberately and cautiously exercised.

Mr. MARTIN. The counsel for the prosecution have then admitted the right of the court to give bail, according to its dis

cretion.

Mr. MAC RAE did not understand from the judicial act, that the discretion was to be exercised at this stage of the business, but only at the time of making the arrest.

Mr. MARTIN.-I can hardly suppose that this court has less power than the court of king's bench in England, which certainly possesses this authority, according to 2 Hale, p. 129. 134.

Mr. WIRT was extremely solicitous to do any thing, compatible with his duties, which might soften the situation of the prisoner, and if the court had the discretion, he did not wish them to restrict it; but he did not perceive the analogy which had been drawn between this court and the court of king's

bench. The powers of that court grew out of the common law of England, whereas the powers of this court were defined by a statute of our country. What says the 33d section of the judicial act?" Upon all arrests in criminal cases, bail shall be ad. mitted; except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence and the usages of law." Is not this inquiry by the court stopped, said Mr. Wirt; is not the evidence and testimony stopped, when it is now locked up by the finding of the grand jury? Would it be right for this court to go into all the merits of the case, which this clause evidently requires, before the court can exercise this discretion? Will the court go into the investigation of the evidence, and thus throw itself into collision with the grand jury? It is obvious from these considerations, as well as from the words of the law, that such a discretion does not exist at this stage of the business, but only at the time of arrest.

Mr. WICKHAM.-The counsel for the United States express their readiness to accommodate colonel Burr, yet act otherwise. If the court of king's bench possess this authority, shall it be contended that this court is without it? Shall it be said, that the liberties of the people of this country are not as well secured as those of Great Britain? that a British subject has greater privileges than an American citizen? It is said, however, that this court grows not out of the common law, but out of our statutes; but will it be said, that, when this court has once been constituted, it does not proceed according to the established jurisprudence; that is, the common law? There can be no question but that a state district court can bail, even in capital cases. Will this court, it is asked, place itself in opposition to the grand jury? No, sir, it will not; and Mr. Wirt certainly forgets that the court is to hear both sides of the evidence; whereas, the grand jury heard one side only, and indeed a part only of that side; for had the United States' attorney sent up all the witnesses, whose names appear at the foot of the indictment, very different would have been the result of their inquiries. The ground which we take is this: that the grand jury have found their bill upon the testimony of a perjured witness; and if the court were to bail colonel Burr, would it not be justly inferred, that they had not set themselves up in opposition to the grand jury, but that they had been furnished with lights, which had been denied to that jury? "Upon arrests," signifies in all cases, where there has been an arrest. The case in Dallas comes fully up to the point.

Mr. BOTTS said, that if the common law did not enable the court to bail, it did not enable them to commit.

CHIEF JUSTICE.-Mr. Martin, have you any precedent, where a court has bailed for treason, after the finding of a grand jury, on either of those grounds; that the testimony laid before the grand jury had been impeached for perjury, or that other testimony had been laid before the court, which had not been in the possession of the grand jury?

Mr. MARTIN said, that he had not anticipated this case, and had not, therefore, prepared his authorities; but he had no doubt, that such existed.

Mr. BURR.-Two distinct questions have been blended in this discussion, which ought to have been kept separate: First, Whether this court have the right to bail according to its discretion; and secondly, Whether it were expedient to exercise its right in the present instance? If the court have no discrétion, it is unnecessary to produce evidence. That question ought, therefore, to be previously settled.

Mr. HAY observed, that when he first addressed the court, he was of opinion, that the circuit court had this power, having been misled by a very transient conversation with the chief justice, on the first examination of Mr. Burr; that he had however, considered this subject more maturely, and the more he thought of it, the more he was convinced, that Aaron Burr was not privileged to demand bail. That he would feel no regret if the court could bail, but he thought they could not; that it was incumbent on the prisoner to show the law which authorised his being bailed; that the question was to be decided by the common law, by the acts of congress, or by the acts of Virginia. It could not derive the authority from the common law, because this court is of a recent origin, deriving its power not only from a late law, but a lately created government; and it has no authority but from an established law. Does then, (said Mr. Hay,) the law which established this court; expressly convey this power? [Here he read the 33d section of the judicial act.] Now, how are the court to attend to the nature and circumstances of the case and of the evidence? Will they require all the evidence to be before them, which has just occupied the attention of the grand jury for seven or eight days? Mr. Wirt's argument on this point is conclusive. The law too is applicable to a prisoner only at the time of his arrest, and not of an indictment being found against him; in the last case, the situation of the accused becomes still more precarious; the danger which he apprehends, comes nearer and nearer, and the temptation to violate his recognisance, becomes much greater than at the earlier steps of the prosecution. [Mr. Hay then re