Mr. HAY. As that is the case, I shall act accordingly. I move that Blannerhassett and Israel Smith may be brought into court, as the motion will not affect the accused only, but them also.

The court consented that they should be brought up.

Mr. BURR. Before any order is made upon the subject, I beg leave to observe that the motions are distinct against the several individuals. They cannot be combined. I shall insist that the motion against me shall be separate, as otherwise confusion may be produced. I see no propriety in combining them, or blending the evidence against one with that exhibited against another. I also require that there may be a specification of the time and place, when and where, the offence is said to have been committed, that I may have an opportunity of meeting the testimony.

Mr. HAY. I do not know that I am bound to give this specification, but I have no objection to do it, as far as I can. I have not very minutely examined the witnesses; but I have been told that at the mouth of Cumberland there were such acts as would constitute an overt act of war; that the assemblage descended from the mouth of Cumberland; and that all along the rivers Ohio and Mississippi to Bayou Pierre, their military array and warlike posture continued, and their numbers were increasing. It appears also that Mr. Burr was with them, and that he was the very soul of the expedition. It will be the province of the court, after having heard the evidence, to commit Mr. Burr, if it believe that an overt act has been committed. It will be the duty of the court to determine whether he shall be sent to Kentucky, Tennessee, or the Mississippi territory, I make this motion with considerable reluctance; but from the view which I have taken of the evidence, it is a course which my conscience has pointed out, and which, therefore it is my duty to pursue.

I understand sir, that the form of the motion is objected to; and the accused thinks that I have no right to blend the whole as one motion against the three persons. But there is no difficulty in separating the testimony so as to distinguish the acts of each. The propriety of this is obvious. If I be bound to make a motion against the person now before the court, and the court shall decide on that motion separately, and I shall afterwards have to make separate motions against the others, it is obvious that the same evidence must be examined three times, and much more time expended in this way than in the other.

It is supposed that there would be confusion in blending them. This is impossible; for however confused our conduct may be in the introduction and examination of the testimony, yet the court will make the proper distinction and application of it to VOL. II. 3 L

the several persons. Indeed, I apprehend that the evidence will be found to bear on them all; as they were all equally present, and having the same object in view, it is probable that the testimony, affecting one, will affect all. Colonel Burr was joined at the mouth of Cumberland by Blannerhassett and Smith, from whence they went down the river together. But if it be the pleasure of the court that I shall make distinct motions, I shall submit.

Mr. BURR.-There will be no necessity of repeating the ev idence. After the testimony concerning one shall have been gone through, the court can distinguish as much of it as applies to the others, without hearing it again. It is more easy and correct to examine separately. It will be unnecessary to hear the same evidence, because some of the evidence that may bear on me may not bear on them, and vice versa.

Mr. BOTTS.-If I understand the proposition of Mr. Hay, it is to have the whole range of the river presented to the court, and to have no less than three persons the subjects of his motion. Unless there be some precedent to regulate the conduct of the court, there are analogies by which the court will certainly be governed. It must be obvious to the court, I am sure sir, that if gentlemen would reflect, they would see that colonel Burr, who has had one trial, now stands on manifestly different ground from the other two gentlemen supposed to be associated with him. Their cases, and his, relate to two distinct branches of law; and he stands on different ground as relates to the evidence.

Will the court allow the two cases of Blannerhassett and Israel Smith to be blended together, when they are as distinct from each other, as both are from colonel Burr's? Yes, says Mr. Hay. When the examination of the first is gone through, the overt act will be the subject of ridicule. There will be no necessity of a further examination; for instead of proving an overt act of war, they can shew nothing more than an overt act of peace. It would be hardly possible to argue all the cases, if blended, properly and without confusion. It is a fact, that there are separate counsel concerned in the different causes. The question ought to be as nearly assimilated as possible to a regular prosecution, so as to prove the unity of the assemblage, and also to regulate collateral subjects. If the testimony were introduced, what would the court say to the prosecutors? You must have one distinct object. You must be tied down to a particular place. All the evidence must be applied to one individual, and cannot be applied collectively to all.

Mr. WICKHAM. I beg leave to observe that colonel Burr has been tried for treason, and a jury have found a verdict of not guil

ty. He is therefore entitled to his discharge in this case. The only ground of accusation for treason against him is falsified by the verdict in his favour. Colonel Burr has not yet complained loudly of the situation in which he is placed. But if he be to be proceeded against now in the same manner as the two gentlemen who have not yet been tried, he must protect himself by the shield of his acquittal. The circumstance of his being found not guilty, therefore, draws a clear line of distinction between them and him.

Again sir, there are different counsel employed. The court knows how much time has been taken up in arguing the cause already decided. Those who appear for Blannerhassett will probably take a different ground from what we have taken for colonel Burr. There are counsel returned by Mr. Smith, who have not yet appeared, and who may take a wider range and grounds different from both. The circumstances and facts are not the same in the three cases. The prosecutor has embraced, for the scene of action, all the way from Bayou Pierre up the Mississippi and Ohio rivers to the extremity of Virginia, an extent of 1600 miles! at some parts of which, one of the parties was not present. When any person is charged with treason or felony, are not the counsel for the prosecution obliged to specify the time when and place where the crime was committed? Suppose a person were brought before any court to be committed for an alleged crime, must not the prosecutor state the nature of the offence, and time and place when and where perpetrated? On examination of colonel Burr's case, it appears that he has been already tried and acquitted for the same crime. It is therefore manifest that he is entitled to be discharged at once.

CHIEF JUSTICE. With respect to any distinction produced by the verdict of "not guilty," that is a question of law, and not of fact, of which the effect may be discussed at any period of the examination. The due course of the law is that any individual, on an accusation against him, may be committed, if the offence be proved. The circuit judge is to inquire, whether the crime have been committed within the United States or not; and if committed within the United States, he is to commit him; and then the district judge is to remove him to the district where the crime was committed.

With respect to the motion being against all three together, or distinctly against each, I suppose that, as far as the case depends on analogy to trials by a jury, on a joint indictment against several persons, it could not be against all at once, without their own consent. I do not know that that principle has been settled. I do not know certainly how the law is on that point; but I believe the principle to be as I have stated. If there were a general

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