The application for the commitment and removal depends en tirely on the voluntary choice of the counsel for the United States. Suppose, in the recess of the court, when the indictment for the misdemeanor could not be tried, a motion were made to commit him in order that he might be sent to another state to be tried for treason committed there; could I divest myself of the obligation to try the misdemeanor, and send him to that other state to be tried for the higher offence? It seems to me that I could not. I suspend my opinion. But at present I do not see any difference between the power of the judge in the case of a motion made in court, and in that of one made in vacation.

Mr. BURR. When a public prosecutor has made his election to prosecute a party accused for such an offence and in such place as he pleases, he ought to be bound by it. They have elected to prosecute for a misdemeanor. We have not called on the court to interfere with their making this choice. Having already divided one act into two crimes, and prosecuted me for treason, and having failed in these prosecutions against my life, they have converted the same act into a misdemeanor affecting my liberty; and they now wish to transform it into a third offence affecting my life-treason in a different state.

It is the utmost oppression thus to attempt to create several crimes out of one act; because on the same principle, the government may try a man for the same offence as often and in as many different districts as its agents may think proper, and persecute him without end.

Mr. WIRT vindicated the conduct of the attorney for the United States in exhibiting these two charges against the accused. He contended that they were two distinct offences; that the grounds of the second prosecution were entirely different from those of the first; and that the censure which had been lavished on the public accuser was not merited. As to the indictment for treason, in which, said Mr. Wirt, it is said we have been baffled, it was not a full trial after hearing all the evidence on the merits of the prosecution. The greater part of the evidence, which we deemed most material, was excluded from going to the jury on certain legal principles. We were governed by our construction of the opinion of the supreme court. If we were mistaken, it was an error common to those enlightened men who were on the grand jury, and whose minds are as much illuminated as those of any men in this state; and an error which I believe most men of intelligence might commit. The court however has said that the opinion of the supreme court has been misconceived; but no blame ought to be attached to us for that, as the misconception was general and common to the ablest men in this country.

As the attorney for the United States holds in his hands evi

Mr. WICKHAM.-On what ground is this motion made? Let us suppose that the accused was here ready to stand his trial, and a jury ready to be sworn on the issue made up. The prosecutor comes forward and says that the trial must be postponed; that the party must be sent to Ohio to undergo a prosecution for an assault committed there, would the court be bound to stop the trial here and send him to Ohio? Unquestionably it would not. If it would not be bound to stop the trial in order to transmit him for an assault, it could not stop it to transmit him to be tried for treason. There is no line of distinction between them. If he be not to be sent in one case, he is not in the other. With respect to the consequences: suppose there was no such court at all, where is the mighty difficulty? It may be remedied by law. If there be failure of justice in this respect, why is it not remedied by law? If public justice require it, why is not a law passed to authorize a removal in such cases?

Mr. WIRT said that though he was not prepared to enter into a discussion of the question, what will be the consequences if there were no such courts; yet he would observe that the maxim of nullum tempus occurrit reipublicæ would apply. There was no limitation of time within which such a prosecution must take place. It was a monstrous position calculated for the security of an atrocious offender, as a murderer or traitor, to let him go at large on a recognisance for a misdemeanor that may subject him only to a fine of a few dollars or imprisonment for a few hours. It is a horrible thing to permit such offenders to escape on such a principle. It appeared to him that the act of congress authorized his immediate commitment and transmission. The words are" and if such commitment of the offender or witnesses shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district, where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender and the witnesses or either of them, as the case may be, to the district in which the trial is to be had." "Seasonably" is a word. without limit. The judge is to judge of it. He has great latitude of discretion and can issue a warrant for his removal whenever he thinks it proper that such removal should take place. If a misdemeanor is to be tried, he will consider whether it be seasonable that he should be tried for it, or transmitted to be tried for the greater offence. The court exercises its discretion to commit him, after which a warrant can issue to send him on. If this construction be not correct, the country is in a horrible situation.

Mr. BOTTS.-Wherever a court has its jurisdiction, there it must go on till the action or prosecution once begun be at an end. If there be conflicting claims for this person by two jurisdictions,

yet as the jurisdiction of this court attaches, it cannot be surrendered to another jurisdiction. Suppose he should be continued on the recognisance, and suppose that he goes to Ohio and commits treason, there is no doubt that the court there would hold him in possession, on the mere circumstance that the court had possession. The priority does not depend on the grade of the offence but on the question which jurisdiction has first attached; and the whole must be disposed of. One half cannot be sent to another court and the other half retained here. The contrary doctrine cannot be reconciled to any principle of law. The words, seasonably to issue his warrant, relate only to the time: that he shall issue his warrant in proper time in order to transmit him to another jurisdiction to take his trial. It certainly means that he shall be sent in a reasonable period, without precipitancy on one hand or great delay on the other.

Mr. HAY.-I will admit that when the difficulty was mentioned by yourself yesterday, I thought it could not be removed except in the way mentioned by myself. But the court was of a different opinion, and in consequence I acquiesced. But my opinion has undergone an entire change. I will state the reasons which have produced it. Suppose an application were made to you, as a judge of the United States or as a magistrate, to hear an accusation against a man charged with the commission of treason against the United States and to commit him according to the 33d section of the judicial act, "that for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States, wherever he may be found, agreeably to the usual mode of process against offenders in such state, be arrested, imprisoned, or bailed." Suppose that not a word of this treason had been heard by you before the application was made to you to commit him, would you refuse to attend to the application? You would hear all the material facts in order to ascertain whether there were evidence sufficient to authorize a prosecution; and if there were such testimony and the facts were committed within the jurisdiction of your court, he would be committed and prosecuted. But the evidence might prove the crime committed without its jurisdiction: in that case would it not be your duty to suppress the treason and to commit him in order to be transmitted to the proper jurisdiction? In general principles of law, as well as by this act of congress, it is the duty of all courts and magistrates to suppress crimes; and therefore they must hear every accusation supported by evidence. The offence may be committed without the sphere of their jurisdiction. They may not be under an obligation to hear and decide on it. But whatever may be the powers conferred

on, or duties required of, a court or magistrate, it is still another question whether a magistrate ever refused to suppress conspiracies or combinations of high treason. It appears to me that there is nothing in the laws generally or this act of congress to warrant such a refusal. Any judge, justice or magistrate is authorized (and it is his duty to exercise the authority) by this act to suppress any crime by arresting and imprisoning (or bailing where the offence is not so heinous as to forbid it) the offender. If the judge be satisfied that the charge is just, it is his duty to issue his warrant for the apprehension of the offender. If on examination he be satisfied that the charge is warranted by the evidence, it is his duty to commit him. It may be an inconvenience that the same judge who commits is not authorized to direct his removal; but this does not dispense with his performance of the duty he can discharge. It becomes immediately afterwards, by the imperative language of this statute, the duty of the judge of the district to transmit him. On application made to him, it is his duty" seasonably to issue a warrant for the removal of the offender." And when any judge has committed the offender, he has done his duty in compliance with the law. The application is not made to him but to the district judge, by the attorney of the United States, to send him on. The judge of the district is informed that the accu sed is committed; that he is bound to appear and answer the charge before him, and then the difficulty commences before him only. The court said yesterday, as I understood, that the judge of the district had no discretion to act, but was absolutely bound to transmit on application. As to the time, he certainly has a discretion. He can issue a warrant for his removal when he thinks proper. He must act; but he must act discreetly. He must issue his warrant seasonably: that is, in a proper and reasonable time without any improper delay.

Suppose colonel Burr were put on his recognisance, and that an indictment were found against him in Kentucky or Tennessee or any other jurisdiction. A capias issues on that indictment. He is arrested by the marshal here in order to be sent to the district of Kentucky or other state where he is indicted. I ask, if an application were made to you by the accused to prevent this by a writ of habeas corpus, because bound to appear on his recognisance, would the court release him? I imagine not. I have not the least doubt that the court would exercise no authority in the case, nor interfere with the marshal; and if it would not, it appears to me that on the same principle the court ought to hear the motion to commit the offender; and the district judge will consider the propriety of immediately transmitting him to that district.

After some desultory observations by Mr. Hay and Mr. Martin on the question, whether the motion were or were not made, Mr. Hay declared that "the motion is now made to commit him."

Mr. WICKHAM.-If the facts were admitted, (but which I deny) the question is whether this court possess the power insisted on. A great number of arguments have been used to shew that it does possess it, with or without the act of congress; but according to the scope of most of them, this motion can only be sustained on this particular act of congress. But let it be considered attentively both ways, with and without the act. Suppose then that this act had never passed, and this motion were made to send the accused to Kentucky; would this court send him? Where is the power or authority to divest this court of its own jurisdiction, to dispense with its duties of deciding a prosecution duly carried on before it, and to send the accused to be tried for another alleged offence in any other court possessing no control or superior claims over this court? Without some act of congress the power would not exist. It could be derived from no other source. The authority then, if it exist at all, is derived from this act of congress; for no other act is pretended to apply to the subject. Let us see whether it be possible for the powers to be expressed in the act. It provides "that for any crime or offence against the United States, the offender may, by any justice or judge of the United States, &c. (see page 495) be arrested and imprisoned or bailed:"-" any crime or offence,”—no matter what grade it is of, treason or a misdemeanor, or any other—the expression is the same. They are relative terms, referring to any offence of any kind, however minute, against the United States. Let us suppose that colonel Burr, instead of being arrested for a misdemeanor, were now indicted of treason, and confined in order to be tried for it; and suppose further, a complaint exhibited of his having been guilty of a misdemeanor in Tennessee, and a demand made that he should be committed in order to be sent to that state; (if the court have the power of commitment, &c. in the case of treason committed in another district, it has equally the power in the case of a misdemeanor done in any other state;) would this court stop the prosecution for treason and send him to Tennessee to be tried for the supposed misdemeanor? Gentlemen admit that it would not, when they make a distinction as to the enormity of the offence. But the law knows no such distinction. They have not shewn that the distinction exists. They speak of it without adducing any argument or authority to prove it. Suppose the charge be to send him to Kentucky where he was absurdly prosecuted and discharged, would it not be monstrous to keep him in confinement and harass him year after year? He is first acquitted by a grand jury in Kentucky, dragged from the Mississippi territory hither, indicted of treason and acquitted here; then indicted for a misdemeanor here; and while bound by a recognisance to answer for it he is sent back to Kentucky VOL. II.

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