indictment against several persons, and they be tried separately, it must of necessity bear on each person; and if they were to be tried together, the same testimony must bear on them all. Though the grand jury find a bill jointly against many, I do not know that more than one have been tried together without their own consent. Every person accused has the privilege of being tried separately, if he insist on it. But on a motion to commit, as this is, it would be a wanton waste of time to repeat the same testimony against several persons in succession, when the whole may be heard together, if all the parties accused be in court; and when the testimony shall have been fully examined, the motions may be separately considered.

Mr. BURR. Whether the motion is to be made separately or together, it is certain, that no two or more persons can be joined in one trial, without their own consent.

The marshal was directed to send for them.

The CHIEF JUSTICE mentioned that he could not see any way of getting clear of this difficulty; that as colonel Burr was now in custody of the marshal, and bound to answer an indictment for a misdemeanor, he did not know how he could be taken out of that custody and sent to be tried by another tribunal; that while thus bound to answer for the misdemeanor and in custody of the marshal, the court had no authority to send him to another district; that indeed the difficulty might be obviated by the counsel' for the prosecution; but it was not the province of the court to remove it.

Mr. HAY said that it had been a subject of consideration with him; and he was disposed to believe that he could be removed to be tried for a higher offence in another state, though here in custody to answer for the misdemeanor; that he should make the motion and leave it to the court to decide.

The CHIEF JUSTICE said that he thought the court had no authority to do it.

Mr. HAY. Should it be the opinion of the court that the accused ought to be transmitted, I can remove the difficulty. I will not untie, but I shall cut the knot.

Mr. WICKHAM. The prisoner is in custody. The motion is to send him to another state to be tried for another offence. Perhaps when he gets there, a motion may be made to send him back hither; and it may be made with as much propriety, as the present motion is made. The motion must fail, unless the difficulty be removed.

Mr. HAY. It is not necessary to decide that point till it shall be determined that he ought to be transmitted. When that ques

tion is brought before the court, and it is called on to transmit him, the difficulty will arise, but not before.

Mr. BOTTS. The subject before the court is divided into two parts: one for commitment, and the other for transmission. The question is, which ought first to be taken up and decided? Certainly the commitment. Can he be sent to another jurisdiction before he be brought on trial for the offence for which he is already committed? Upon what principle is he to be transmitted for a second offence, before the first, for which he is in custody, be disposed of? Is he not liable to be transmitted the moment the motion to commit is granted? Suppose colonel Burr were in custody in another court, committed under the authority of judges, different from you, in a district distinct from this, and prosecuted by an attorney distinct from Mr. Hay; could this court act on any prosecution against him, till he were surrendered by that court? If it could not, it is an argument in point to shew that he must be discharged from his commitment for the misdemeanor before he can be proceeded against in any other court.

After some other observations of a desultory nature, Mr. WICKHAM spoke to this effect.

The motion is to commit colonel Burr, for the purpose of sending him to a foreign jurisdiction, though he is already in custody for an offence prosecuted in this court. The court ought not to commit him till he be discharged from the prosecution depending before itself; for if he were to be sent to another court, he might, on the same principle, after a trial there, be remanded hither. He is committed already in this court. This court has jurisdiction over the offence, and must determine it. He has been brought from the Mississippi territory, 1200 miles by the order of the government to Virginia, no doubt because it was the most convenient and suitable district to try him in. He has been tried in Virginia and acquitted by the verdict of a jury; and now he is to be sent to another district to be tried for another offence, from whence he may again be brought hither to be tried once more. All this marching and countermarching and military parade may be sport to the government, but it is, I will not say death, but most grievous oppression to colonel Burr in this case; and it will be so to any gentleman the government may choose to prosecute hereafter.

Mr. HAY. By reference to the 33d section of the law, it will be seen that the circuit court commits, and the judge of the district court transmits, the person accused to any other district where the crime may have been committed. It is certainly your province to commit; and if the district judge should have any difficulty respecting the removal, we are prepared to obviate it before him. The act of congress confides the authority of remov

ing him to the judge of the district court. When the motion to remove is made, it is his province to decide that question; and if he decide that he cannot do it, it will then be our duty to remove the difficulty, but not until it occur.

Mr. WICKHAM. The motion is for process to arrest colonel Burr, when he is already in court and in custody of the marshal. When the party accused is in custody, the judges are not to exercise this authority. The law is to receive a fair construction, according to what was probably contemplated by the framers of the act. The words will not admit of their construction. When the person is in court, the court will interpose and remove the prisoner by its own authority, if it ought to be done. Observe the consequences of granting their motion. If he be transmitted, tried and acquitted in the district to which they wish to send him, the question there will then be, is he to be discharged or not? That court will not discharge him, but send him back to this court to be tried for the misdemeanor for which he is now in custody; so that he is to be harassed by being sent backwards and forwards 1400 miles. The district judge has no discretion whatever on the subject. It is for this court to decide. A motion is made to arrest him, when he is already arrested and in court. This court has the prior jurisdiction, and must exercise it. Suppose this court were to waive its prior right and transmit him to Kentucky, and the counsel there were to give a preference to this court and make a motion to the court there to send him back hither; that court may be as polite in waiving its own jurisdiction, as this court is now urged to be. It will exchange civilities and send him back again to this court.

Mr. HAY. A very strong argument is afforded by another part of the law. The court will recollect the provision which prevents prosecutions under it after three years: that is limits its duration in these words," this act shall continue and be in force, for and during the term of two years, and from thence to the end of the next session of congress, and no longer." Now suppose we were to proceed to the trial of the misdemeanor, and the party were convicted: he finds it his interest to be convicted and sentenced to be imprisoned: after the three years he cannot be prosecuted but will be exonerated. In this view of the subject, the trivial punishment of two or three years' imprisonment will secure his impunity for the perpetration of the enormous crime of treason against his country. For though the preceding clause provides that nothing in it shall prevent the prosecution or punishment of treason, yet if he were punished as for a misdemeanor, he could not be punished also as for treason afterwards.

Mr. Wickham contended that the act did not operate as an act of limitation against prosecutions for offences really committed

within the term of the three years; that they might be punished at any time; but it declared the impunity of acts committed after the three years; which would have been the case, had not the act been afterwards continued; that for acts done within that period, the accused could be bound to give bail in any court within the United States, but not for acts done thereafter.

Mr. HAY said that he thought this clause applied to the evil itself and prosecutions also; and that no prosecutions under it could take place after that period.

After some further conversation

The CHIEF JUSTICE said that as to the commitment and transmission, he doubted whether the words of the law were to be taken separately or at the same time; and whether it were the duty of the district judge to send him on to the place where the offence was committed till he was arrested and committed by another judge or magistrate, and an application was made to him for that purpose; that he must be tried if sent to another court, because he is bound to appear before, and transmitted to, that other court for these purposes; that the law directs the court to be specified before which the accused is to be tried; that he is committed to be tried before such court in consequence of which he is bound to appear at or sent to that court, and must be tried by it; that it is a difficulty not easy to remove, to shew how he can be rightly transmitted to any other court while he is under prosecution in this court for an offence adjudged to have been committed within its jurisdiction.

Mr. Blannerhassett and Mr. Israel Smith were brought into court by the marshal.

Mr. HAY said that the three persons, now before the court, were all in the same situation; and the same difficulty applied to all. He regretted that the difficulty had not been adverted to at a more early period, which would have saved much trouble; that he did not wish to disturb the opinion of the court, but would proceed with the trial of colonel Burr for the misdemeanor.

After some desultory remarks, Mr. Hay requested that the clerk might go on and read the indictment for a misdemeanor in the usual way, that they might proceed without issuing process to take the accused into custody, as he was in court.

The clerk was about to proceed, when

Mr. Burr interrupted him and, addressing the court, observed, that he ought not to be arraigned, but be permitted to plead by attorney: that in cases of misdemeanor, the accused are never arraigned; that he was in court, not on that indictment, but because he had not moved to be discharged since his acquittal on the first indictment for treason. He hoped that nothing which

General Jonathan Dayton, against whom a bill of indictment for treason committed on Blannerhassett's island had been found by the grand jury, and another indictment for a misdemeanor at the same place, appeared to the former indict

ment.

Mr. WIGKHAM, counsel of general Dayton, observed, that after what had been determined, the propriety of his being admitted to bail would not be questioned. He produced an affidavit (of Mr. Williamson) proving, that general Dayton was not at Blannerhassett's island in December 1806, the month laid in the indictment; that he had not been more than seven or eight days from home at one time, during the preceding year; that he lived at Elizabeth Town in New Jersey, the usual place of his residence.

A nolle prosequi was then entered by Mr. Hay as to the indictment for treason; and he was held to bail with two securities in ten thousand dollars, to answer to-morrow, and from time to time as the court should require, to the indictment for a misdemeanor.

The court then adjourned till to-morrow.

WEDNESDAY, September 2d, 1807.

As soon as the court met Mr. HAY addressed them to this effect.

I trust I shall not be thought guilty of any impropriety in asking whether I be correct in my understanding of the opinion of the court delivered the other day. According to my construction of it, the evidence of the transactions on Blannerhassett's island does not prove an overt act of war, does not come up to the constitutional crime of levying war; and if so, it would be extremely improper to press the prosecution against Blannerhassett and Israel Smith. I shall not encounter the opinion of the court by insisting on contrary doctrines, nor press them on a jury; and if it be the opinion of the court, that the evidence does not amount to levying war, I shall enter a "nolle prosequi." As to all the indictments for treason I shall move to commit them, that they may be sent to the district where the overt act was committed. As it is of great consequence to the community, I hope the court will excuse me for the application I now make.

CHIEF JUSTICE. Without doubt the court intended to deliver merely a legal opinion as what acts amounted in law to an overt act of levying war; and not whether such an overt act have or have not been proved. It merely stated the law, to which the jury would apply the facts proved. It is their province to say, whether according to this statement and the evidence, an overt act have been proved or not.