of miles distant; that the jury ought to know from the court how much of this vast mass of testimony ought to have a legal application.

Mr. HAY inforced his former objection, that if the law was to be laid down by the court, they would certainly wish to have it explained by both sides; that the gentlemen on the other side wished the court to decide without argument, on matters the most important; that as the jury were very intelligent, and the court had already given a general definition of principles, the correct course was to proceed in the usual way, without wasting time in unnecessary argument.

Mr. BOTTS said, that in a case of such unexampled importance, which was sufficiently attested by the busy crowd around them, the noise in the country, the curiosity of the people, and the activity of the government, no reasonable objection could be made to even wasting a few minutes; that it was a case. where the prisoner required, and ought to receive, the benefit of every legal right which the court could furnish.

CHIEF JUSTICE observed, that there would certainly be a difficulty in the court's giving dissertations on criminal or penal laws; that he was not prepared at present to say, whether the same evidence was necessary before the grand jury as before the petit jury; whether two witnesses to an overt act were required to satisfy a grand jury: this was a point which he would have to consider. That he had not made up his mind on the evidence of facts said to be done in different districts, how far the one could be adduced as evidence in proof or confirmation of the other; but his present impression was, that facts done without the district, may be brought in to prove the material fact said to be done within the district, when that fact was charged.

The question was postponed for further discussion, on Mr. Hay pledging himself, that no evidence should be laid before the grand jury, without notice being first given to colonel Burr and his counsel.

Several witnesses on behalf of the United States were called and recognised to appear to-morrow, at eleven o'clock A. M. The court adjourned till then.

SATURDAY, 23d May, 1807.

Present the same Judges as on yesterday.

The proceedings of yesterday being read, and the names of the jury called over, several witnesses on the part of the United States appeared and were recognised to attend on the court.

The counsel for colonel Burr observed, that if it met the approbation of the court, the discussion on the propriety of giving special instructions to the grand jury would take place on Monday next.

This proposition was assented to, and it was understood that Mr. Burr's counsel were to give due notice of the propositions they intended to submit.

The grand jury appearing pursuant to adjournment, the chief justice informed them, that the absence of general Wilkinson, a witness deemed important by the counsel for the United States, and the uncertainty of his arrival at any particular period, made it necessary that they should be adjourned.

Some conversation ensued between the court and bar, with respect to the propriety of adjourning the grand jury to some future day in the term.

The CHIEF JUSTICE stated it as his opinion, that as there was no necessity for calling over the names of the grand jury every day, they might be considered in contemplation of law, still in their chambers till they were called into court, and it might be understood that they would not be called till some particular day. This he said was the practice in some of the states, nor did he know any sound objection to it: but unless it was considered by counsel on both sides, that this course was free from all exception, he should be unwilling on any account to adopt it.

The counsel for colonel Burr stated that they knew no objection to the measure, but were unwilling to express any decided opinion, especially as colonel Burr was not then in

court.

The chief justice said, that he felt much inclined to accommodate the grand jury; but until further consideration of the subject, they would stand adjourned till Monday following. The court adjourned till then accordingly.

MONDAY, 25th May, 1807.

The court met according to adjournment: present the same judges as on Saturday.

The grand jury appeared in court, and on its being stated by their foreman, that they had been two days confined to their chambers, and had no presentment to make or bill before them, Mr. Hay observed, that he had two bills prepared, but wished to postpone the delivery of them till the witnesses were present, and it was ascertained that all the evidence relied on by the counsel for the prosecution could be had. He thought it probable, that in the course of a week, he should hear of general VOL. I.

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Wilkinson, who was still absent, and whose testimony was deemed very important.

A further conversation took place, as to the propriety of adjourning the grand jury to a distant day of the term, and Monday next was mentioned, as the time when they would probably be required to attend.

The CHIEF JUSTICE observed, that from the researches which he had been able to make, he was still inclined to favour the opinion which he had expressed on Saturday, that there was no necessity for calling the grand jury every day. This opinion was the result of his reflection upon principle, not formed from any positive authority on the subject.

Mr. WICKHAM having stated, that as a number of witnesses were attending at a considerable distance, on the part of colonel Burr, it might be important to know when the grand jury would be again called.

Mr. HAY observed, that a motion might be made, which would render their presence necessary, even on that day.

Mr. WICKHAM then requested, that before any order should be taken in relation to the adjournment of the grand jury, the counsel for the United States might state the nature and object

of his motion.

Mr. HAY.-The object of my motion is to commit Mr. Burr on a charge of high treason against the United States. On his examination there was no evidence of an overt act, and he was committed for a misdemeanor only. The evidence is different now.

Mr. WICKHAM hoped, that the application might be made and counsel heard.

Mr. HAY.-Gentlemen may be assured that they will be apprised of the application; but is it their wish that it should be made, and the subject discussed in presence of the grand jury?

Colonel BURR.-The gentleman has mistaken the object of my counsel as far as it is comprehended in my motion. The design was not that the grand jury might hear, but that the impropriety of mentioning the subject in the presence of the grand jury, might be made more manifest. I think it may be demonstrated, that while there is a grand jury attending, before whom a question may be determined, there is an obvious impropriety in submitting it to any other tribunal for any other

purpose.

The grand jury were requested to withdraw.

Mr. HAY renewed his application, stating more at large the grounds on which it was made; and moved the court to commit Mr. Burr on a charge of high treason against the United States, on the evidence formerly introduced, and on additional testimony to be now brought forward.

Mr. WICKHAM inquired what sort of evidence was intended to be introduced: whether that of witnesses to be examined viva voce, or affidavits in writing? Mr. Hay answered, that where the witnesses were present he intended to examine them viva voce, but where they were absent to make use of their affidavits regularly taken and certified.

Mr. BOTTS. We may have cause of much regret, that the attorney of the United States, has not given us some previous notice of this application. From the engagements between the prosecuting and defending counsel, to interchange information of the points intended to be discussed, we had a right to 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 candour of the attorney of the United States, we might have reasonably calculated on a previous communication. This interchange of civility and information, usual even in cases of inferior importance, was more necessary in this case, because the application is as unfortified by precedentas it is unexpected; and because it involves questions of deep consideration and weighty importance.

Mr. HAY interrupted Mr. Botts. Since the gentleman complains of being taken by surprize, I am willing to postpone the motion till to-morrow.

Mr. BOTTS.-Not a moment's postponement. Although we sustain considerable inconvenience by being thus suddenly and unexpectedly called upon without reflection, or authorities, yet we should experience greater by a day's delay. I shall therefore beg leave to make a few remarks on this extraordinary application, and the pernicious effects such an extraordinary measure, if generally practised, would inevitably produce. The organ particularly appropriated for the consideration of the evidence which this motion calls for, is the grand jury; and the motion is to divest the grand jury of the office, which the constitution and laws have appropriated to them, and to devolve it upon the court. The grand juror's oath is to inquire into all crimes and misdemeanors committed within the district of the state of which they are freeholders. Their office is to perform that which the court is now called upon to perform. To them belongs the exclusive duty of inquiring and examining into all species of evidence, which may lead to a conviction of the crime

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of which colonel Burr is now charged; but there is a great jection to the exercise of this examining and committing power by a high law officer, who is to preside upon the trial, when the grand jury, the appropriate tribunal, is in session. He is obliged, previously, without a full hearing of both sides of the case, to commit himself, upon the case of the accused. Every one will agree, that a judge, should, if possible, come to the office of trial as free from prepossession, as if he never heard of the case before. It is true, that when a grand jury is not embodied, in order to avoid a failure of justice, and to prevent the guilty from escaping, the measure which the gentleman, now proposes, would not only be proper but necessary. The examining and committing office of the judge is, in such cases, justified by the necessity of the case; but then it is because the appropriate body of inquest is not impaneled to perform the office. The necessity does not exist here. This novel mode of proceeding would give the attorney for the United States the chance of procuring an opinion from the court, unfavourable to the accused. Failing in that chance, he would then resort to his only legal one-before the grand jury. Why should this court step out of its ordinary course to forestal or influence the deliberations of the grand jury and the public? The motion is without precedent, or reason to warrant such a precedent; it is oppressive and against all principle; it is unreasonable and oppressive that the functions of the grand jury should be suspended, in order that the court should assume them. Although in the absence of the grand jury, it would be proper in the court to determine a question of commitment, yet the history of our criminal jurisprudence yields no instance of such a motion during the session of the grand jury. I did expect, that some solitary reason would have been given, by the gentleman for the prosecution, in support of his motion; I did expect, sir, that all the books of England would have been ransacked; I did sup pose, sir, that the musty pages of folios and quartos would have been opened to support his argument; I did expect, at least, sir, that one case of state practice would have been produced. In this expectation I am disappointed. I say then, sir, that the motion before the court is without precedent, unreasonable in its nature, inconvenient in its effects, and oppressive in its end; of a piece with the long course of oppression which has been practised against colonel Burr, but has been hitherto unknown in this country; unheard of in any country which enjoys the blessings of freedom, and which, I trust, will never again be repeated in these states.

Colonel Burr appears in this court ready to go on with his trial; he wishes no delay; he is opposed to every measure which may occasion delay, or procrastinate the business. His great