judice assails him, the light of truth and evidence will dissipate it. Why does he shrink?

The gentlemen on the other side, continued Mr. Hay, do not do us justice. They charge us with persecution and oppression. Sir, I never contemplated or wished to hurt Aaron Burr. I scorn it. I look not to him. I look only to the duties which I am solemnly bound to perform. One remark more, sir, and I have done Gentlemen on the other side, insist upon the insufficiency of our evidence; because we have withheld our indictments from the grand jury, they have hastily inferred, that we feel our evidence to be too feeble to satisfy the jury. They are mistaken, sir. I assure them that they are mistaken. I conscientiously believe, that we have evidence enough, even throwing out the depositions themselves, to satisfy the grand jury of the guilt of Aaron Burr. But, sir, puerile indeed would it be for us, under the present state of things, to submit our case before the grand jury, on the evidence before us, when we are every moment expecting better.

Mr. EDMUND RANDOLPH addressed the court to the following effect:

Sir, it would have been impossible for us, even had we received due notice of this motion, to have availed ourselves of the time that was allowed to us. That would have been impossible, because the enormity of the proposition itself, would have haffled all our consideration, and all our researches. Mark the course, sir, which has been pursued towards my unfortunate client. First he was brought here under a military escort. Then that little folio of depositions and affidavits, was laid before your honour: then the charge of treason: and then that little cock-boat which was destined to attend this great ship, on a foreign expedition. You heard it all, sir, and what did you say? You bound colonel Burr to bail, simply on the charge of a misdemeanor, to appear here at the opening of court; but not contented with this security, you superadded, that he was not to leave the court until it had discharged him. You opened the door, too, for an ulterior prosecution; you declared, that if the attorney for the United States should obtain any additional evidence, the judgment which you then rendered, would not prevent his indicting colonel Burr on the charge of treason.

Sir, thus stands the case, as it was understood by the whole universe. On Friday, we came here to meet the whole world; Friday, however, passes away, and nothing is done. On Saturday, we came here again; Saturday, also, passes away, and nothing is done. But on Sunday, sir, (for it seems that day, which, to the generality of mankind, is a day of rest, is a day of activity to some,) is broached this new fangled doctrine, which now excites our astonishment. They demand precedents, sir, for our conduct; and who are they that require it? Why, sir, they that

take things out of the ordinary course of the law. For thirty years, I never saw such a proceeding: I have never read of such a one in the English books; and yet, these gentlemen call upon us for precedents. If we were asked for our reasons sir, we should have enough to offer: and first, a judge in the federal court, sitting in the capacity which your honour now fulfils, is in the same relation to the accused, as an examining judge is in the state courts. But, sir, who ever invited a single magistrate, or a state court to augment the bail of any individual in the situation of colonel Burr? If a man was bound, in a distant county, to answer to a misdemeanor, and another crime was to be brought against him, to be predicated on the very same evidence, have you, sir, ever known the trying court to increase his bail? There never was such an example, sir.

Mr. Botts' remark, sir, is not to be answered. You are changing the constitutional organ of justice. You are completely blotting out the functions of a grand jury. The witnesses will be all produced before you: but no, improper as this proceeding will be, it is still less so, than that which they will actually pursue. None of the United States' witnesses will be brought before you, but those whom they may think it politic to introduce; and depend upon it, that such testimony will be garbled for the ears of this court, as may be expected to bias their judgment. Well, sir, and what will be the consequence? When the grand jury are about to retire to their own chamber, they will be told that you have demanded additional bail. Are you then, sir, to be a pioneer of blood for the grand jury? Is not this precedent outrageous, sir? The boasted principle, that no man is to be condemned but upon the verdict of twenty-four of his peers, is gone. Throughout this town, it will be universally reported, that you have solemnly declared Aaron Burr to be guilty of high treason against the United States; and some of those, to whom the rumour may extend, may hereafter be impaneled on the petit jury. And will they feel themselves altogether unbiassed by your judgment? Why, sir, let it be declared at once, that the grand jury is to be struck out as an intermediate organ of justice.

Do not, I pray you, sir, let us suffer for the delays and negligence of other people. I cannot blame the United States' attorney. It is his business to obey the instructions of the govern ment; and if the witnesses are not here, it is certainly no fault of his but surely there is time enough to travel from New-Orleans to this city in seventeen days; even with the gigantic "bulk" of general Wilkinson himself.

Mr. Hay says, our tone is changed. And how, sir? We demand a trial now. We demand a fair trial. But must we not, therefore protest against a measure, which is calculated to defeat this object? Certainly, sir. You are called upon to prejudice the minds of the grand jury. But, sir, in this interesting case, where

liberty and life themselves are endangered, I trust that some hard-mouthed precedents, from old black letter books, will be found in opposition to this procedure. We have come here to answer to every charge, which may be urged against us: we come here to answer in a precedented and constitutional manner; but little did we expect that the court would decide in the first instance, instead of the grand jury; that the sentiments of the grand jury were to be prejudicated by an unconstitutional decision; and that the court itself was to commit its opinion on certain points, which would be regularly brought before them for argument and for decision at some of the ulterior stages of the prosecution. "Why," said Mr. Wirt, "do you shrink?" Sir, trace the course of the prosecution, and see who it is that retires from the contest. On Friday the United States' attorney was not ready; on Saturday he was not ready; and now indeed he will not probably be ready before Monday next. Sir, who is it that shrinks? and yet does the attorney positively aver, that he has evidence enough!

We are charged, sir, with addressing the multitude. Mr. Wirt says that he could, but would not imitate the example; but neither he nor Mr. Hay hath spared the theme. Sir, I will not deny the justness of his eulogiums upon the administration; but permit me only to remark, that there has been a certain conduct observed towards colonel Burr which excites my deepest astonishment. When I look at the first man in the government, I behold an individual whom I have long known, and whose public services have commanded my admiration. When I look at the second, sir, he has my whole heart. But, sir, the inquiry which is now before us relates not so much to the intention as to the effect. An order has been given to treat colonel Burr as an outlaw, and to burn and destroy him and his property. And sir, again; when the house of representatives demanded certain information, as it was their right and their duty to do, the president granted it: and would to God, sir! that he had stopped here, as an executive officer ought to have done. He proceeded, however, to say that colonel Burr was guilty of a crime; and consequently to express an opinion, which was calculated to operate judicially upon the judges and the juries. Such was the substratum of all the censures, which have been heaped upon colonel Burr.

Mr. Randolph proceeded to touch upon a subject to which Mr. Hay had referred. Colonel Burr was arrested in the Mississippi Territory. Was there no court there? was there no judge of integrity to try him? arrested too after he had been acquitted by a grand jury! Well! he was transported thence (with humanity it has been said), dragged on by eight musqueteers, who

were ready to shoot him at a moment's warning; refused any appeal to the judicial authority; denied even the melancholy satisfaction of writing to his only child. Was all this humanity? Dragged before this court, which derives its only jurisdiction from a little speck of land on the Ohio. Yes! sir; but for that little spot of an island, Virginia never would have enjoyed this honour! What is all this, sir, but oppressive and bitter inhumanity? I trust, sir, from what I have said, that no one will think with Mr. Wirt, that I am shifting the question from colonel Burr to Mr. Jefferson. I should not have made the observations which have escaped me, but to show that my client is justified by his situation in stating every objection that he can to the present measure.

Mr. Randolph observed, that at least one disadvantage would result from this inquiry; that it was not clear, as Mr. Hay had asserted, that the affidavits would be laid before the court only, and not before the grand and petit juries, for the grand jury would soon be possessed of the substance of them; and that it was next to impossible for them to separate the impressions thus illegally to be produced on their minds, from the weight of the legal viva voce testimony.

Mr. Randolph said, that he did not understand Mr. Hay's expressions about certain persons in holes and corners; that if however he meant spies, there were none such employed by colonel Burr; but, although the government certainly had employed no spies, yet it has excited so much prejudice against colonel Burr, that it was sufficient to make every man in the country desirous of contributing his full quota of information against him. Mr. Randolph concluded with remarking, that the present argument had perhaps been permitted to embrace too wide a field of discussion; and that there were two great questions which he should submit to the consideration of the court: 1st, Whether there were any precedents in favour of the present motion? and 2d, If a proposition like this, and of such great importance, was adopted without any precedent to support it, whether it would not expose every man in the country to the danger of oppression?

Mr. Randolph contended, that this was a charge which the judge had already decided, on a former examination; that it was not a supplemental crime, but the old one; that perhaps there might be some little affidavit to splice out some defect in the former evidence; but what would be the consequence of this proceeding? Day after day, another and another affidavit would be brought forth. Facts like polypi, are easily cut into two or three pieces; each of which may be made to form a new and entire body; and each of those atoms is to require a new recognisance. For one affidavit there must be a bail of 1000

dollars: another affidavit, another 1000 dollars; until the burden of bail is so oppressive as to leave no other resource, but in the four walls of a prison.

Mr. HAY observed, that he should simply notice one remark of Mr. Randolph's. That gentleman had used the expression of "pioneer of blood;" but surely it would not have escaped him, had he but for one moment seriously reflected upon the court whom he addressed, upon the counsel he opposed, or the government. Satisfied of this, Mr. Hay said he should pass the observation by, without further notice.

Mr. Randolph had stated, that no similar case had occurred in his thirty years practice. It was not wonderful that such a case had not occurred in the time when that gentleman was attorney for the commonwealth. A great change has taken place in the system of our government. At that time no federal court existed. The mode of proceeding in the state courts is different from that here. In the system of penal law established in the commonwealth of Virginia, there is an examining court intervening between the arrest and commitment of a prisoner, and his being charged before the grand jury; but this court has the power to examine as well as to commit. Moreover, the United States are a most extensive country, compared to that of Virginia; a most material witness may now be 1500 miles from the court, before which he is to appear; and may be at the same time at the head of an army; in all which circumstances, the federal and the state sovereignties are different. So that this difference altogether defeats the application of Mr. Randolph's experience to this subject, even if that experience had been admitted as a good authority in the state courts. But even that gentleman would admit, that had a similar case occurred before the state courts, the accused would have been committed. Mr. Randolph asserts, that this motion is made to draw forth the opinion of the court, and thus to prejudicate the minds of the grand jury. But Mr. Randolph has certainly forgotten, that this intelligent and impartial jury are on their oaths and their consciences; and surely this court will not pay so little compliment to their independence, as to admit, that its own opinion will be sufficient to bias their judgment; more particularly too, when the point before the court is so different from that before the jury. It is the business of the court to commit; and of the jury to indict: and it is certainly the privilege of the court to decide upon written testimony, although that point may not be perfectly established and settled as it relates to the grand jury. How the court would decide upon this point, Mr. Hay said, he could not pretend to know. There is another consideration, which should be weighed by the op