of Wilkinson, for any thing of this kind; but he might fear to be imprisoned and transported like others, contrary to law and justice. But the gentleman has said, that there was no danger in the union of the civil with the military character in one person; and asks us if the president of the United States have not those powers blended in him? What civil authority has the president? It is much circumscribed. He must apply to a magistrate before he can arrest any person suspected of any crime. He is not a conservator of the peace, though he is commander in chief of all our troops, (which are not many.) He has nothing to do with the civil, that is the judicial authority; yet this is the inference, that the civil and military authority were united in the president. We have been told by the gentlemen, that "the court had shown great indulgence towards us, lest it should be censured, and not for the sake of doing justice." I took it down from his mouth as he spoke. Mr. MAC RAE denied positively that he had ever said so. Mr. MARTIN insisted that he had taken it down from his mouth as he had spoken the words. Mr. MAC RAE replied, that he had taken it from his own head. Mr. MARTIN.-I dare say the gentleman has forgotten it; his mind having been occupied by great things: by general Wilkinson. Sir, he said, that great indulgence had been granted to colonel Burr, for which he complimented the court. I wonder if he will recollect another thing that he said, that we wished to imprison all the people for the sake of Aaron Burr, while he was stalking through the streets. I cannot help congratulating the gentleman, that he may now walk at large, without having his eyes offended by seeing Aaron Burr at li berty. But the gentleman said, that unusual mildness had been shown to colonel Burr. Persons have been tried for treason before in the United States. John Fries was tried before that Jeffries Samuel Chase. Was the treasury of the United States thrown open and lavished to employ other counsel, in addition to the attorney for the United States, to prosecute? No persons were then employed to forestal the truth, by taking ex parte affidavits; and Mr. Rawle, the attorney for the United States, who prosecuted according to general usage, without any aid, was a man whose mildness and benignity resembled an angel of mercy; and the United States sent for no other witnesses than those summoned in the usual course. But this trial took place in the days of terror," under that old dotard John Adams. Let us contrast it with the proceedings under the enlightened reign of philosophy and philanthropy. Money has been taken out of the treasury to employ two eminent lawyers to aid in the prosecution; compulsive affidavits have been taken; affidavit-men employed to take them, and witnessess brought by force, without relying on the process of the court as sufficient. Mr. Martin concluded, by expressing his firm persuasion, that the whole transaction was military, and contrived by general Wilkinson; that it was clearly a contempt of the court, and that he hoped he would be punished for it by an attachment. The court then adjourned till to-morrow morning, at nine o'clock. FRIDAY, June 26th, 1807. The court met about nine o'clock, and, about ten o'clock, the grand jury entered, and Mr. Randolph, their foreman, presented ten indictments, found true bills; that is, one indictment for trea and another for a misdemeanor, against each of the following individuals, viz. Jonathan Dayton, John Smith, Comfort Tyler, Israel Smith, and Davis Floyd. The CHIEF JUSTICE then made a short address to the grand jury, expressed in elegant and appropriate terms; in which he complimented them upon the great patience and cheerful attention with which they had performed the arduous and laborious duties in which they had been so long engaged; and concluded, by discharging them from all further attendance. The court then adjourned till twelve o'clock. As soon as it met again, Mr. BOTTS requested the court to remove Mr. Burr from the public gaol, to some comfortable and convenient place of confinement. He depicted in very strong terms the miserable state of the prison, where he was then confined. The grounds of this motion are to be found in the following affidavit made by some of Mr. Burr's counsel, and laid before the court: We, who are counsel in the defence of colonel Burr, at the suit of the United States, beg leave to represent to the court, that in pursuance of our duty to him, we have visited him in his confinement in the city goal: that we could not avoid remarking the danger, which will most probably result to his health, from the situation, inconveniences and circumstances attending the place of his confinement; but we cannot forbear to declare our conviction, that we ourselves, cannot freely and fully perform what we have undertaken for his defence, if he remain in the gaol aforesaid, deprived, as he is, of a room to himself; it being scarcely possible for us to consult with him upon the various necessary occasions which must occur, from all which we believe, that he will be deprived of that assistance from counsel, which is given to him by the constitution of the United States; unless he be removed. EDMUND RANDOLPH, Sworn to in open court, by Edmund WILLIAM MARSHALL, Clerk. The counsel for the prosecution were perfectly silent on the motion. After a long and desultory argument by Mr. Burr's counsel the court determined that the prisoner should be removed to his former lodgings near the capitol, provided they could be made sufficiently strong for his safe keeping, being of opinion, that the act of congress authorised it, on the foregoing affidavit, to make the order of removal. Mr. Latrobe, surveyor of the public buildings of the United States, was requested to inspect them; and upon his report the court passed the following order: Whereupon, it is ordered, that the marshal of this district, do cause the front room of the house now occupied by Luther Martin, esq. which room has been and is used as a dining room, to be prepared for the reception and safe keeping of colonel Aaron Burr, by securing the shutters to the windows of the said room by bars, and the door by a strong bar or padlock. And that he employ a guard of seven men to be placed on the floor of the adjoining unfinished house, and on the same story with the before described front room, and also, at the door opening into the said front room; and upon the marshal's reporting to the court that the said room has been so fitted up and the guard employed, that then the said marshal be directed, and he is hereby directed, to remove to the said room, the body of the said Aaron Burr from the public gaol, there to be by him safely kept. Mr. HAY.-My only wish is, that this prosecution should be regularly conducted. Is it not the usual practice to read the indictment first and then move for the venire? Mr. BURR.-I have been furnished with a copy of the indictment; I have perused it; and I am ready to plead not guilty to it. Mr. WIRT. The usual form requires the actual arraignment of the prisoner; however the court may dispense with it, if it think proper. Mr. HAY was indifferent about the form, if the law could be substantially executed. He supposed that a simple acknowledgment of the prisoner was sufficient, without the customary form of holding up his hand. CHIEF JUSTICE.-It is enough, if he appear to the indictment, and plead not guilty. The clerk then read the indictment against Aaron Burr, for treason against the United States; which specifies the place of the overt act, to be at Blannerhasset's island; and the time, the 10th day of December 1806. When he had concluded, Mr. BURR addressed the court: "I acknowledge myself to be the person named in the indictment: I plead not guilty; and put myself upon my country for trial." Mr. HAY then addressed the court on the venire that was to try the issue between the prisoner and the United States. He said that he thought there was an apparent incompatibility on this point, between the twenty-ninth section of the act of congress called the judicial act, and the eighth amendment to the constitution. It was not certain that this act was in force. It was passed on the 24th of September 1789, and it provides that "In cases punish"able with death, the trial shall be had in the county where the "offence was committed, or where that cannot be done without "great inconvenience, twelve jurors at least shall be summoned "from thence." Subsequent to this, a constitutional provision was made, requiring that the trial shall be held before" an im"partial jury of the state and district, wherein the crime shall "have been committed." If then, this law be in force, there must be twelve petit jurymen summoned from Wood county, which would make it impossible to have the trial at any early day. Here then was the difficulty. The act was passed in 1789; the amendments to the constitution were not ratified before the 15th December 1791. Does then the constitution repeal this law? Had this eighth amendment formed an original part of the constitution, no more would have been requisite than an impartial jury from the state and district where the crime was committed. Had congress passed this law, after the constitution was thus amended, would it not have been a violation of it? Had it then any force at this time? Mr. MAC RAE quoted the 2 vol. of the act of congress page 226, section 3, to show that the first law was considered to be in force, notwithstanding this amendment to the constitution. The CHIEF JUSTICE said, that he had no difficulty on the subject. He saw no incompatibility between the law and the constitution. He had no doubt that the law was still in force. Mr. BURR had not considered the question maturely; but at present saw no inconsistency between them; however, as this law was most probably intended for the benefit of the accused, he consented to waive the right. Mr. WIRT. But there is another consideration, sir: Can consent, take away the error? In England, in the celebrated case of Alexander Kinloch and Charles Kinloch, he consented to draw one of the jurymen, and afterwards pleaded this error in arrest of judgment. After a long and elaborate argument, the court rejected his plea, though there was a division among them. Mr. MARTIN. In that case, (or what is the same, Weddi. burn's case) there was but one dissentient judge. Mr. HAY. In the case of Hardy or Tooke a question was made, whether the jury must be kept together during that long trial? Though the prisoner at the bar consented to waive that right, the court nevertheless instructed the sheriff to keep them together. Mr. BOTTS protested against the delay and inconveniences which would ensue, from summoning the venire from Wood county. The CHIEF JUSTICE believed that the provision was not absolutely obligatory, if both parties would waive the right; but it was as much so, if the United States insisted upon the right, as if the prisoner himself had done so. If the United States insisted upon its execution, the law must be executed, unless there were sufficient evidence to satisfy the court, that such a measure would violate the amendment to the constitution, which requires a trial to be held by an impartial jury of the state and district; unless both sides therefore consented, it was his opinion that the court was bound by this law. Mr. HAY said, that he felt no disposition to delay the trial; but he could not think of pledging himself to such a measure without due deliberation. He would consult with the gentlemen associated with him, on this point; and would inform the court of the result. The counsel for the prosecution then retired from the bar, and after a few minutes consultation returned. Mr. HAY informed the court, that they could not assume the responsibility of consenting to such a proposition; the law seemed to be imperative in its language, "twelve petit jurors at least shall be summoned." He must therefore request the court to direct a venire of twelve men at least, to be summoned from Wood county. 2 Y VOL. I. |