they will pursue the very same course which has now been taken against colonel Burr. He is here, ready for trial. They admit that their testimony is not sufficient to bring him before a grand jury, and of course, to find an indictment against him. Why then is this partial evidence to be exhibited on a motion for commitment? It is to nourish and keep alive the prejudices already circulated against him. Will they then, press a motion like this? Be it so. I hope the motion will be rejected, and that the court will stand between the innocent and his pursuers: for every man is presumed to be innocent, before he is found guilty.

Mr. WIRT.-May it please your honours,

The attorney for the United States, believing himself possessed of sufficient testimony to justify the commitment of Aaron Burr for high treason, has moved the court to that effect. In making this motion, he has merely done his duty. It would have been unpardonable in him to omit it; yet the counsel for the defence complain of the motion and the want of notice. As to the latter objection, it must be palpable, that the nature and object of the motion rendered notice improper. The gen tlemen would have the attorney to announce to the party accused, that he was, at length, in possession of sufficient evidence to justify his commitment for high treason; and, that being apprehensive he might not be disposed to stand this charge, he intended, as soon as the accused came into court next morning, to move his commitment! This would really be carrying politeness beyond its ordinary pitch. It would not have deserved the name of candour, sir; it would, in fact, have been an invitation to the accused to make his escape. But, as gentlemen seem to doubt, at least with an air of some earnestness, the propriety of this motion at this time, and express their regret that they have not had time to examine its legality, the attorney has offered to waive the motion until tomorrow, to give gentlemen the opportunity which they profess to desire; but no, sir, they will not even have what they say they want, when offered by the attorney. Another gentleman, after having demanded why this motion was made, and by that demand drawn from the attorney an explanation of his motives, has been pleased to speak of the attorney's statement, of his apprehensions, as an episode, which "though good poetry," he says, "had better have been let alone, when such serious matters of fact were in discussion." It may be an episode, sir: if the gentleman pleases, he is at liberty to consider the whole trial as a peice of epic action, and to look forward to the appropriate catastrophe. But it does not appear to me to be very fair, sir, after having drawn from the attorney an explanation of his motives, to com

plain of that explanation: if a wound has been inflicted by the explanation, the gentlemen who produced it, should blame only themselves, But, sir, where is the crime of considering Aaron Burr as subject to the ordinary operation of the human passions? Towards any other man, it seems, the attorney would have been justifiable in using precautions against alarms and escapes: it is only improper when applied to this man. Really, sir, I recollect nothing in the history of his deportment, which renders it so very incredible, that Aaron Burr would fly from a prosecution. But at all events, the attorney is bound to act on general principles, and to take care that justice be had against every person accused, by whatever name he may be called, or by whatever previous reputation he may be distinguished. This motion, however, it seems, is not legal, at this time, because there is a grand jury in session. The amount of the position is, that though it may be generally true, that the court possesses the power to hear and commit, yet, if there be a grand jury, this power of the court is suspended; and the commitment cannot be had unless in consequence of a presentment or bill of indictment found by that body. The general power of the court being admitted, those who rely on this exception, should support it by authority; and therefore, the loud call for precedents, which we have heard from the other side, comes improperly from that quarter. We ground this motion in the general power of the court to commit: let those who say that this general power is destroyed by the presence of a grand jury, show one precedent to countenance this original and extraordinary motion. I believe, sir, I may safely affirm, that not a single reported case or dictum can be found, which has the most distant bearing towards such an idea. Sir, no such dictum or case ought to exist. It would be unreasonable and destructive of the principles of justice: for if the doctrine be true at all, that the presence of a grand jury suspends the power to hear and commit by any other authority, it must be uniformly and universally true in every other case as well as this, and in every case which can be proposed while a grand jury is sitting. Now, sir, let us suppose, that immediately on the swearing of this grand jury, and their retiring to their chamber, Aaron Burr had for the first time been brought to this town; the members of the evidence scattered over the continent; the attorney, however, in possession of enough to justify the arrest and commitment of the accused for high treason, but not enough to authorise a grand jury to find a true bill. What is to be done? The court disclaims any power to hear and commit, because there is a grand jury; the grand jury cannot find a true bill, because the evidence is not sufficient to warrant such a finding: the natural and unavoidable consequence would be, that the man must be

discharged: and then, according to Mr. Wickham's principles of ethics, that every man must be supposed to intend the natural consequences of his own acts, the gentlemen who advocate this doctrine intend, that Aaron Burr shall be discharged without a trial.

I beg you, sir, to recollect what was said by gentlemen the other day, when you were called upon to give an additional charge to the grand jury. You were told that a grand jury should require the same evidence to find a true bill, which a petty jury would require to convict the prisoner. Connect this principle with the doctrine in question: the sitting of the grand jury suspends all power to commit by any other body, and the grand jury cannot find a true bill, unless on evidence on which they would convict as a petit jury: connect these two principles, and consider the immaturity of evidence, which always exists at the period of arrest and commitment: and the sitting of the grand jury, instead of being a season of admonition and alarm, becomes a perfect jubilee to the guilty. But it is said, that this is "an attempt to divest the constitutional organ of its just and proper power." I believe, sir, it was never before heard, that an application to commit for safe keeping, was an encroachment on the power of the grand jury. Would the gentlemen have us to address this motion to the grand jury? they might as well propose, that we should submit the bill of indictment to the court, and desire them to say, whether it is a true bill or not? This would be indeed, the "shifting of powers," of which the gentleman complains. As it is, sir, there is no manner of collision between the power, which we call upon the court to exercise, and the proper power of the grand jury. The justices arrest and commit, for safe keeping; then comes the function of the grand jury, to decide on the truth of the indictment exhibited against the prisoner. The two offices are distinct in point of time, and totally different in their nature and objects. But it is said, that "there is a great inconvenience in submitting a great law officer to the necessity of expressing an opinion on the crime, on a motion like this-that the judge like the juror, should come to the trial with his mind pure and unbiassed." This argument does not apply to the legality of the power, which we call upon the court to exercise; it goes merely to the expediency of exercising it: and if the argument be true, the court ought never to commit, whether the grand jury be sitting or not. This, however, sir, is a matter for legislative, not for judicial consideration. Whenever the legislature shall decide, by the force of this argument, that the court which commits shall not sit on the trial in chief, a motion like this will become improper. At present, however, the legislature has left this

power with the court, and we claim its exercise for considera. tions of the most serious importance to truth and justice.

But, sir, we are told, that this investigation is calculated to keep alive the public prejudices; and we hear great complaints about these public prejudices. The country is represented as being filled with misrepresentations and calumnies against Aaron Burr; the public indignation it is said, is already sufficiently excited. This argument is also inapplicable to our right to make this motion; it does not affect the legality of our procedure. But if the motion is likely to have this effect, we cannot help it. No human institution is free from inconveniences; the course we hold is a legal one, a necessary one: we think it a duty. It is no answer to us to say, that it may produce inconveniences to the prisoner. But let us consider this mournful tale of prejudices, and the likelihood of their being excited by this motion. Sir, if Aaron Burr be innocent, instead of resisting this motion, he ought to hail it with triumph and exultation. What is it that we propose to introduce? not the rumours that are floating through the world, nor the bulk of the multitude, nor the speculations of newspapers; but the evidence of facts. We propose, that the whole evidence exculpatory as well as accusative, shall come before you; instead of exciting, this is the true mode of correcting prejudices. The world, which it is said has been misled and inflamed by falsehood, will now hear the truth. Let the truth come out, let us know how much of what we have heard is false, how much of it is true; how much of what we feel is prejudice, how much of it is justified by fact. Whoever before heard of such an apprehension as that which is professed on the other side? prejudice excited by evidence! Evidence, sir, is the great corrector of prejudice. Why then does Aaron Burr shrink from it? It is strange to me that a man, who complains so much of being, without cause, illegally seized and transported by a military officer, should be afraid to confront this evidence: evidence can be promotive only of truth. I repeat it then sir, why does he shrink from the evidence? The gentlemen on the other side can give the answer. On our part, we are ready to produce that evidence. Permit me now, sir, to turn to the act of assembly which has been read by Mr. Wickham. Into what embarrassment must the ingenious and vigorous mind of that gentleman have been driven, before he would have taken refuge under this act of assembly? It is but to read it to see that it has no manner of application whatever to this motion; that it applies to the case of a person already committed; declaring that such person shall be bailed, if not indicted at the first term after his commitment, and discharged if not indicted at the second term. Revised code, page 103. sec. 10. It begins thus,

"When any person committed for treason."-Now, sir, is Aaron Burr committed for treason? If not, it is obvious that the clause has no manner of application to him. Why, sir, the object of this motion is to commit him; gentlemen must have been in strange confusion when they resorted to this law. Mr. Wickham asks, if general Wilkinson be a material witness, why he is not here? Who is general Wilkinson? says that gentleman. Is he not the instrument of the government, bound to a blind obedience? I am sorry for this and many other declamatory remarks which have been unnecessarily and improperly introduced; but the gentleman assures us, that no imputation is meant against the government. Oh no, sir; colonel Burr indeed has been oppressed, has been persecuted; but far be it from the gentleman to charge the government with it. Colonel Burr indeed has been harassed by a military tyrant, who is "the instrument of the government bound to a blind obedience;" but the gentleman could not by any means be understood as intending to insinuate aught to the prejudice of the government. The gentleman is understood, sir; his object is correctly understood. He would divert the public attention from Aaron Burr, and point it to another quarter. He would, too, if he could, shift the popular displeasure which he has spoken of, from Aaron Burr to another quarter. These remarks were not intended for your ear, sir; they were intended for the people who surround us; they can have no effect upon the mind of the court. I am too well acquainted with the dignity, the firmness, the illumination of this bench, to apprehend any such consequence. But the gentlemen would balance the account of popular prejudices; they would convert this judicial inquiry into a political question; they would make it a question between Thomas Jefferson and Aaron Burr. The purpose is well understood, sir; but it shall not be served. I will not degrade the administration of this country by entering on their defence. Besides, sir, this is not our business; at present we have an account to settle, not between Aaron Burr and Thomas Jefferson, but between Aaron Burr and the laws of his country. Let us finish his trial first. The administration too will be tried before their country; before the world. They, sir, I believe, will never shrink, either from the evidence or the verdict. Let us return to Aaron Burr. "Why is not general Wilkinson here?" Because it was impossible in the nature of things for him to be here by this time. It was on the first of April that you decided on the commitment of Aaron Burr for the misdemeanor; until that decision was known, the necessity of summoning witnesses could not be ascertained. General Wilkinson is the commander in chief of the American troops, in a quarter where his presence is rendered important by the temper of the neigh