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Federal Gazette & Baltimore Daily Advertiser 1807/01-1807/06 msa_sc3722_2_6_1-0511 Enlarge and print image (4M) |
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Federal Gazette & Baltimore Daily Advertiser 1807/01-1807/06 msa_sc3722_2_6_1-0511 Enlarge and print image (4M) |
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Tri, I
court of
Cuit and
md, 23 ; sloop But-
llorc, 27, in distress,
[>, May 23.
Yesterday tlie circuit
States, for the fifth cir-
________________^^* c. Virginki, commenced
it: is city. The expected trial
of. i drew together an initnense
cpilcours* of citizens from various parts of
the union ; indeed far exceeding any that
we iccuhect ever to have been upon any
firmer DCCasiom
ill l as! twelve o'clock the court was
opened, present
Marshall, chief justice of the Uni-
ted States,
Cyrus GiiiTui, judge of the district of
' Virginia.
.;i i< ; • tlie grand jury was impannelled
a.id sworn, a lengthy and desultory argu-
ment took phce between col. Burr*with his
coulisel on the one side, and the attorney
tot tlie United States in the district of Vir-
ginia on Che other, in relation to exceptions
taken by tlie farmpv to the manner in which
sdhie of the jurors were summoned, and
finally on objections to some individual
men-,l.ci-. of the jury. The late hour at
which tne coi»rt adjounied obliges us to com-
press in to as narrow a compass as possible,
tne proceedings in this preliminary stage of
the business. Indeed, if it were in our
to prepare the arguments at fall
i'.'r,L,ti:, we doubt extremely the propriety
of publishing them during the pendency of
the tr;;.'., before; even the petit jury shall be
swci ii : especially as some of those arglt-
inenTs contained a degree of asperity which
•night possibly influence the minds of those
who may finally pass between the United
States and tile accused.
iscertained that eighteen of
the giand jury had answered to their names,
col. Kiirr stated an objection to the manner
l in \. I of them had been summoned
b\ tlitimarshal. He disclaimed evt-ry idea
ol casting any imputation on that officer,
unf_e : to hint or his deputies ;
h.ri r..j,t.i.i. ieii the irregularity of his pro-
ceedings as the mere elect of an error in
cons tlich error it was pro-
pel to con .-i:t. )i- .inverted to the law of
Virginia, by vtfhieh 84 persoiispropertytj.ua-
liflKl at* on ..- fed to be summoned as a grand
jiny ; and contended that, wl*e» the officer
bad .-.u.nmoijed that number, his authority
<:,.-,i -,-¦(!, and he bad no power to summon the
1 twenty-fifth- In the present case, he said,
he wab aulliori-. I to state, that after the
marshal had sumtuoned the number required
by law, he had accepted of excuses from
p,nt oftiiem, and had al'lei wards completed
the pannei by summoning additional mom-
be. i
He was followed by Mr. Botts, who went
more particularly into an examination of the
• quest ion, and referted to the judicial act of
congn - and the laws of Virginia, prescrib-
ing t he duty of officers in summoning a grand
jury. He also cited the case of Marbury v.
Madison, (i Cranch) to shew that whin a
ministerial act was once performed by an of
Beer, it was irrevocable. It was prop
on thti part of col. Burr, that the inaMhal
should be interrogated as.to those members
of the; grand jury who had been summoned
after the original panned of 24 had been
completed.
Mr. Hay, district attorney, observed, that
' lie confessed himself not very well prepared
to. a, a simitar one to
which he bad never heard before, but that
he'eonceived it to be of no importance, and
\v,i that coL Burr should be accom-
modated with a grand jury to which no ex-
ception could be'made. It appeared to him
jjideeol not to be proper to examine witnesses
as to the conduct of the marshal,in this stage
of the prosecution ; and he knew not why
the objection was now made, for it could
make no difference to the prisoner or to the
United States ; since if any of the grind ju-
iois were set aside, there would either be
enough remaining of those who had been
i summoned, or the deficiency would be sup-
plied by the marshal from among the bye-
standors. He submitted the whole matter
to the court to determine whether testimony
should be examined concerning the persons
summoned or not.
Mr. Wickham said he meant no imputa-
tion on the marshal, whose intentions he
doubted not were upright ; but as this was
an extraordinary case, and great attempts
had been made to prejudice the puiilic mind
against col.Burr, he was justifiable in taking
every advantage that the law gave him. He
cited 2 Hawk. Pleas of the crown, p. 807,
16 sect, and S Bac. Abr. 725, to shew that a
person bound in a recognizance to answer a
Ctiitiiii.il Charge, has a right to appear and
make objections to the grand jury before
i they tire sworn. Whether a plea in abate-
ment might afterwards be filed for the error
committed,was a question not necessary now
to be determined ; neither was it the wish
of col. Burr to resort to tiiat alternative ; for
fie anxiously desired that the prosecution
should terminate here, and with a grand jury
free fi onfall exceptions.
Mr. Hay then read the law of Virginia,
(Rev Code, pa. 100, sec. 2,) and contended
thai the construction attempted to be put
i.pon it, was more rigid than could be war-
ranted by sound sense and good policy. The
[intention of the law was that twenty-four
' good men and not liable to any of the ex-
ceptions therein stated, should be summon,
sd. What reason therefore could be given
to prevent the marshal (if he discovered that
a man whom he had once summoned could
not attend) from summoning another, and
thereby securing the attendance of the full
number required ? The marshal summons a
man without knowing the situation of his
private affairs—the man afterwards informs
him that he is subject to uncontrolable do-
mestic difficulties ; for example, that he is
iV-dng a journey on iitdispensible business.
VVhy should he not excuse him, and snni-
.tnon another? Where is the authority to
prove that the functions of the officer who
collects a grand jury cease before the day on
which it is impannelled ? t
When the return is made, if a sufficient
number do not attend, a discretion is vested
iu the marshal to appoint others in the room I
<'f absentees : and is not the principle the
-, when lie knows the twenty-Tour, I
whom he-ha, first summoned, cannot attend? I
He observed too, that the gentlemen were I
i flhenced by a mistaken idt a ; for he had I
t aderStood that the marshal^ in the install- .1
V-Vh to wijich they alluded, had only inqtiir-
d of tlie persons said to have been srun- j
ajted, whether they could attend or not j i
ssing his intention to summon them,
if ti. y c ...id a1 fend ; and, upon their as-
j sming him of ij.cir inability, had applied to
others.
Mr. Wickham said that the counsel for
' the United States had not fairly met the
, question. As the authorities he had cited
before were short, he read them ; observing
that his only object in doing so was to shew
that the objection ought to be made before
the grand jury were impannelled, and there-
; lore must now be made.
j On the merits of the objection he said
; that Mr. Ha ,':. argument concerning policy
i had no weight ; that the words of the law
! of Virginia being plain on the subject in
• question, ought alone to be regarded ; that
j it was sufficient to answer ita lex seripta
est ¦ that polity however was on his side of
j the question; since great danger would re-
i suit from permitting a marshal, who was ap-
I pointed by the president of the United States,
¦ and dependent upon him for his continu-
; ance in office, (however respectable the pfe-
I sent marshal is acknowledged to be) to
change the members of the grand jury at
his pleasure.
The law is, that if the 24 grand jurors who
have been summoned do not attend, 16 are
sufficient to constitute a grand jury. Mr.
Hay is therefore mistaken as to the law, in
supposing that 24 are necessary. Let it be
supposed that a day or an hour before the
sitting of the court, the marshal is informed
that one of the grand jury cannot attend :
according to the doctrine contended for by
Mr. Hay, he may excuse him and summon
another ; but, when they attend in court, if
16 are present, he has no such power. If
the excuse is made to the court, and they
deem it insufficient, a tine is to be imposed.
Is the marshal to be substituted for the court i
and can he release from the line ?
Upon the whole he insisted that the in-
quiry should be made, but declared that he
had no intention to wound the marshal's
feelings, whose error was certainly uninten-
tional.
Mr. Hay. I said before, that no good rea-
son existed for not authorising the marshal,
where he discovered it to be certain that a
grand juror could not attend, to supply the
deficiency by summoning another before the
commencement of the term. According to
that doctrine, if 13 of those who are sum-
moned should fail to attend, there might be
no grand jury at alt.
Tlie chief justice inquired whether this
question had ever come before the state
courts ?
Mr. Randolph answered that it never had
w iihin his knowledge, although he had thir-
ty years ago been attorney for the common-
wealth ;.but there never had been a case like
the present ; and therefore no necessity to
make a similar objection had ever been felt.
This ease was indeed a peculiar one, fbr in
no other had such a torrent of prejudice been
ever raised, and by means too which we shall
shortly wijcld. In this case, therefore, it
becomes necessary to contend for the rules
of which we now avail ourselves ; and in
consequence of the power vested in the mar-
shal, and his liability to be influenced by the
government, great danger would aiise from
relaxing them, 1'irgus.]
[7c be continued.']
FEDERAL GAZETTE.
WEDNESDAY, MAY 21
Spoke Aprii 84, in sight Oi Be
ship Moses, of Wiscasset, from Norfolk
for Barbados. May 6, lat. 39, 4- long. 6r>,
ship Abeona, Williams, of Newburyport,
6 days from Charleston, for Tonningen.—
March 18, lat. 41 1-2, long. 49, ship Aver
ick, 12 days from Charleston tor Liverpool.
May 5, off Charleston, ship RufuS) from
Bordeaux, for Savannah.
Extract of a letter, dated Richmond, Ms., 23.
Yesterday Commented the session of the
ciici.it court) and the trial of Col. Burr. This
city is all mxiety. Popular opinion has been
jrreatly excited against the accused. A res-
pectable grand jury has met; three of its
in, mberjj .. •¦¦•e i xcvptevl to, viz. W. B. Giles,
CV. Nicholas ana Or Fouchee. The Jurors
sworn are—J. Randolph, fireman, J. Eggle-
ston.l.. W. T»»e well, R.Taylor, W. Daniel,
jun. J.Mercer, E. Pegram, M. Beverley, J.
Ambler, T. Harrison, J C Cabell, J.Pleasants,
jun. J Bro jkenbi-ough, A. Shepherd, J. Bar-
bour, J. Garrett.
Court adjourned to 11 o'clock this day.
Married last evening, by the Rev. Mr.
Pitts, Mr. John Scott, to Miss Nancy Picket.
From the Merchants' Cqffce-Houte Books.
May 26."
Arrived, brig Newton, Bunker, 21 days
from the City of St. Domingo—mahogany,
logwood and fustic—W. Cole. Left on the
coast ship Mary and brig Neptune of Balti-
more, loading. 't the City schooner Nan-
cy, for Philadelphia in S days : ship Phce-
nix, for New-York in a few clays ; brig
Planter, do. do. brig Joseph of Boston, do.
the brig------, Coffin, N.York, bound to
Jamaica, carried into Fiar.acoa by a French
"privateer, captain at the City waiting trial;
bidg Rover, of Philadelphia, bound to Ja-
maica, in like predicament; brig---------,
Gardner, of Nantucket, captured and carri-
ed into Samana, the captain at the City.
May 14, in long. 72, spoke brig Portland,
bound to Havana.
Also, sch'r Five Sisters, Bates, 35 day
from Laguira™ coffee, cocoa, hides and cot-
ton—Robert and Alexander M'Kiffl.
Also, brig Decatur, Thomas, 55 days
from Bordeaux- brandy—Benjamiri and
George Williams. Spoke nothing of conse-
quence.
Also, sch'r Rainbow, Fulton, from Saint
Thomas, and 13 days from Turks Island-
salt, coffee and sugar—Robert Cornthw.ait,
Left at Turks-Island schooner America, of
New York, for Jamaica in 2 days ; brig Ra-
jah, Coitklin, of do. for Havana next day.
The three masted schooner John, Sabin,
from Washington, N. C bound to Jamaica,
was cast away on the West Caicos Reef 23d
April, vessel and cargo totally lost, crew
saved, threw of whom came in the Rainbow.
The schr. Dolphin, Stauwood, 50 days from
Gua laloupe, bound to Boston, put into St.
Thomas the day before he left it, in a very
leaky condition, hating been driven off the
coast.
Iso, schr. David, Chaytor, 16 days from
La Vera Cruz - logwood and sarsaparilla—
Isaac fvi-Rim. Sailed in co. with schooner
Hawk, White, for Baltimore ; parted 3 days
Since, off Ilsttcias. The schr, Champlffij
for Philadelphia, sailed sime day. Left a
schoonerf'romNew.Orieau:;, nam¦¦¦ unknown.
Came into the capes at 8 o'clock last even-
ing; saw nothing b mod no but those in sight.
M<>y 37.
The brig Triton, Cox, hence t0 Amster-
dam, has put into Norfolk, leaky.
Sale by Auction.
TO MORROW MORNING,
The 38r/;. inntant, at hrrff past nine o'clock |