before, that no man was liable for the acts of another, unless done by his authority or contrivance. Though we do not admit principles contended for by the gentlemen on the other side, (which we sincerely believe to be unjust and unfounded,) yet as it is not impossible but the court may decide against us, it is our duty to oppose them. This is a governing principle which may run through the whole cause, and will apply to every other similar evidence. We deem it our indispensable duty to oppose the testimony now adduced, to affect colonel Burr with the acts of others. Was it fair to sound so much alarm and prejudice throughout the whole country, because we stated and availed ourselves of these legal objections? I am not well acquainted with that branch of the science which is called criminal law, and I hope to become less so; but I had always thought, that more protection was necessary, and afforded by the law, for the rights of individuals, in criminal than in other cases. If other prosecutors act like these, I am mistaken. I never knew before, declarations made against any person for standing on the rules of law. I never knew before, that a citizen is to be reviled for adhering to the laws of his country. The court ought to stop gentlemen who make such an objection. But it is said, that "public prejudice is excited by his mode of defence!" If his claiming legal rights excite prejudice, we need not try him, but convict him at once without a trial. The witness ought not to be compelled to answer. The examination of facts leads to the discovery which he seeks to avoid. He is on his oath. If he commit perjury in answering this interrogatory, he would do so in any other case. The questions asked a (roman catholic) witness, what business he had at St. Omers six years before, and what profession he was of, are innocent questions; yet in both instances, the witness was excused from answering, because he thought it would criminate him. They tell us," that this objection admits the guilt of colonel Burr." No, it only admits that he is under prosecution. Does it not endanger this young man of being arraigned, if he own connexion with colonel Burr. Is not an innocent man in danger of conviction by perjury? The whole strength of the government is exerted against the prisoner. The government would not suborn witnesses; but bad men might think to render an acceptable service by swearing falsely against a party under prosecution. The danger is real, though the party accused is innocent. As to Goosely's case, gentlemen suppose me mistaken. Mr. Wm. Marshall's (the clerk of this court) recollection corresponds with mine. Our remembrance is confirmed by Mr. VOL. I. 2 G Randolph, who was counsel in the cause, and by the judge. Reynolds was an accomplice, and was proved, by the finding of the grand jury on the record, to be an innocent man, and it was determined that he was not bound to give testimony against Goosely, because it might tend to criminate himself. The case is the same here. Willie, the secretary of, is connected with, Burr. They might send up to the grand jury a bill of indictment against him, if they did not think him too insignificant. The witness, like most other men, may estimate his own importance more highly than others might be disposed to do. A question, "where were you on such a day?" is an innocent one; yet, as it might tend to criminate him by being connected with other evidence, the court excused a witness from answering it. The question at present before the court is of the same nature, and his answer may be made, with the aid of other testimony, to criminate him. As to the authority from Mac Nally, that a man is bound to answer the question, whether he had been punished for a crime or not? I shall observe, that a man's answering, whether he had been punished, cannot injure his character, because the punishment is public: if it were private, he would not be compelled to answer. Every man is indifferent until sworn. He ought to refuse to be sworn to any inquiry tending or leading to implicate him. The secret is locked up in his own breast: you cannot know that such a secret exists until he be examined, and you have no right to extort it from him to his own injury. I am sorry that so much time is consumed on so plain a question; but as it is important, as it respects the progress of the investigation, I hope we shall be excused. Here some conversation ensued between Mr. Wirt and Mr. Martin, respecting the legal authorities referred to by Mr. Wirt, and supposed to have been admitted by Mr. Martin. After some further desultory conversation, the chief justice. asked whether there were any other question before the court? Mr. MAC RAE requested a decision on Dr. Bollman's case, as he wished to interrogate him about the cyphered letter. Mr. WILLIAMS was ready to discuss the question. Mr. BURR.-There will arise some very important questions, affecting the very sources of the jurisprudence of this country. I have several affidavits to produce, to show that improper means have been used to procure witnesses, and thereby contaminate the public justice: when these proofs have been duly exhibited, it will be the province of the court to decide, whether they will not arrest the progress of such improper conduct, and prevent the introduction of such evidence. Mr. BOTTS.-I rise to apprise the opposite counsel, that there are three or four questions of considerable importance, which we shall bring forward as soon as possible. Two or three days ago, I commented upon the plunder of the post-offices; and I assure the counsel for the prosecution, that I shall probe that subject to the bottom; as no man can be more anxious than myself, that the stigma which this transaction attaches to the inferior or superior officers of the government, should be wiped off. As a private citizen, or as counsel for my client, I shall be sincerely pleased with a fit opportunity of retracting the expressions which I have employed. The court will at once perceive the necessity of going into this inquiry at a very early period; for if the officers of government have hitherto broken open letters from colonel Burr, they may hereafter resort to the very same expedient; and by thus obstructing the very medium of communication between colonel Burr and his witnesses, prevent him from summoning them, and preparing for his defence. One more remark: yesterday I understood Mr. Hay to charge us with having made certain insinuations against persons not actually named. He demanded, why we had not forborn these charges, until we were prepared to support them? That remark, sir, struck me with peculiar force. I was of the same opinion, that some proof ought to be produced; I immediately rose and professed my wishes to go into an investigation of the case. But, sir, little did I expect that the gentleman would have proceeded to have justified these crimes. Little did I expect that such felonious transactions should have been blazoned into mighty virtues, or that it would have ever been maintained in this court, that the persons who had failed to plunder the post-offices, would have been guilty of a dereliction of their duty. The offer to go into the evidence operated as magic: he justified what he had before denied. I wish, sir, to explore the post-office laws to see whether they do not contain some provision, prohibiting the introduction of testimony, thus illegally obtained. CHIEF JUSTICE.-Unless these allegations affected some testimony that was about to be delivered, how can you introduce this subject? Mr. HAY informed the court, that colonel Morgan was at that time before the grand jury, and they had sent for a letter, from Aaron Burr to him. Should the letter (holding it in his hand) be sent to the grand jury? Mr. BOTTS requested to see it. Here, said he, is a small piece of newspaper attached to it, which ought not to accompany it before the grand jury. Mr. BURR.-I have no objection that any of my letters should be sent up; but I trust, sir, it will be separated from this bit of a newspaper, and this comment which Mr. Morgan has attached to it. The letter was handed to the Chief Justice; who observed, that the only use of the newspaper was to show, that at that time colonel Burr was at Pittsburg. Mr. HAY said, it was nothing more than to refresh his memory. The CHIEF JUSTICE decided, that it was right to dissever it from the letter: the newspaper itself was no evidence; but if colonel Morgan would wish to refresh his memory, there could be no objection. They were accordingly separated by the directions of the court, one was sent to the grand jury, and the other to colonel Morgan. Mr. BURR.-The court has very properly demanded some proof of the relevancy of our proposition. Sir, we are ready to prove the violation of the post-office. We are ready to fasten it on individuals now here, and we are ready to name the postoffices, if the court require it, which have been thus plundered. When it comes out, that evidence has been thus improperly obtained, we shall say, sir, that it is contaminated by fraud. I will name three persons who have been guilty of improper conduct, in improperly obtaining letters from the post-office, to be evidence against me. These are Judge Toulmin, of the Mississippi Territory, John G. Jackson, a member of congress, and general Wilkinson. Two of these persons are within the reach of this court. As well as the improper manner in which they have procured affidavits and witnesses against me, I mention these circumstances for two reasons: First, that the facts may be proved to the satisfaction of the court; and, second, that the court may lay their hands on testimony thus procured. Mr. BOTTS.-The circumstance of the post mark proves that the post-office was robbed of that letter; therefore it is not evidence. The CHIEF JUSTICE said, let the consequences be as they may, this court cannot take cognisance of any act, which has not been committed within this district. That mark is not necessarily a post mark. The court can only know the fact, in a case to which it applies, except to commit and send for trial. Mr. HAY.-Let some specific motion be made, and the evidence procured; and if there have been any crime committed, let the offenders be prosecuted according to law. These gentlemen know the course; and I most solemnly promise to dis charge the duties of my office, whether they bear against general Wilkinson, or the man at the bar. If the crime have been committed, it is not the province of the court to notice it, till after an indictment has been found. Mr. BOTTS.-We only wish to prove, and prevent a repetition and continuance of this improper mode of proceeding. The proof will affect general Wilkinson. CHIEF JUSTICE.-If it did affect general Wilkinson, it could not prevent him from being a witness. Some desultory conversation here ensued, when Mr. BURK observed, that he was afraid he was not sufficiently understood, from mingling two distinct propositions together. As to the subject of the post-offices, it might rest for the present; but as to the improper means employed in obtaining testimony, they were at this moment in actual operation. Some witnesses had been brought here by this practice; and it was one which ought immediately to be checked: he did not particularly level his observations against general Wilkinson. He did not say, that the attorney for the United States ought to indict, or that such a crime if committed out of this district was cognisable by the court, unless it be going on while the court is in session, or the cause depending; in those cases improper practices, relative to crimes committed out of the limits of this court, may be examined, and the persons committing them attached. Such practices have been since I have been recognised here, and they ought to be punished by attachment. Mr. WIRT. I do not yet understand the gentlemen. What is the object of their motion? Mr. BOTTS.-We shall hereafter make it; we have no other object by the present annunciation, than to give gentlemen a timely notice of our intentions. Mr. BURR.—We have sufficient evidence on which to found our motion. What motion? demanded Mr. HAY. Mr. BURR.-I thought, sir, I had sufficiently explained my intentions. I may either move for a rule, to show cause why an attachment should not issue against judge Toulmin, John G. Jackson, and general Wilkinson, or what is sometimes, though not so frequently practised, I may directly move for an attachment itself. Mr. MAC RAE.-At whose motion? |