however, he refuse, they then call upon the court to interpose its jurisdiction; and the inquiry will then be, whether the question be material and proper? As to papers, they are not to be received at all, unless they are shown to be relevant to the case. And where is the limit to this species of proceeding? Suppose, in this search after papers, all the private letters of colonel Burr should be brought up; all the most secret actions of his life should be written down, and brought hither to be submitted to public inspection; will the court indulge them in such a wide inquisition?

CHIEF JUSTICE said, he had in some measure anticipated this question, and had reflected upon it; his opinion was this: a paper, to go before the grand or petit jury, must be relevant to the case, even if its materiality were proved. Why send this letter before the grand jury, if it cannot be decyphered? If it can be decyphered before the grand jury, why not before the court? Let it then be decyphered, and its relevancy may at once be established.

Mr. HAY. Is there no difference between any other paper and a cyphered letter proved to have been originally written by Aaron Burr?

CHIEF JUSTICE.-Still this letter may not be relevant to the present case.

Mr. HAY then directed Erick Bollman to be called into court, that he might be interrogated as to its contents. He requested that the court would indulge him for a short time, until he could execute some important business before the court of appeals.

The court accordingly suspended the prosecution.

At half after one o'clock, the court again resumed the business; but neither doctor Bollman, nor Mr. Hay appeared.

A few minutes after the court had resumed its business, Mr. John Randolph entered at the head of the grand jury, and addressed the court:

May it please the court: One of the witnesses, under examination before the grand jury, has answered certain questions touching a letter in cyphers. The grand jury understand that this letter is in the possession of the court or of the counsel for the prosecution. They have thought proper, to appear before you, to know whether the letter, referred to by the witness, be in the possession of the court?

CHIEF JUSTICE observed, that as the letter was wanted by the grand jury, a witness having referred to it, that was suffi cient to establish its relevancy, and directed it to be delivered to them.

Mr. MAC RAE hoped, that before the grand jury retired they would be informed, that a witness had proved that this letter was originally written by Aaron Burr.

Mr. WICKHAM.-And I hope, they will also be informed, that the superscription on that letter has not been proved to have been written by colonel Burr. The witness did not, and would not, say that he knew the superscription to have been written by him.

The grand jury then retired, and the court adjourned till tomorrow, eleven o'clock.

FRIDAY, June 19th, 1807.

As soon as the court met, Mr. BURR addressed them. He stated, that the express, that he had sent on to Washington with the subpoena duces tecum, had returned to this city on Wednesday last, but had received no other than a verbal reply from the president of the United States, that the papers wanted, would not be sent by him; from which I have inferred, said Mr. Burr, that he intends to send them in some other way. I did not mention this circumstance yesterday to the court, under an expectation that the last night's mail might give us further intelligence on the subject. I now rise to give notice that, unless I receive a satisfactory intimation on this subject before the meeting of the court, I shall, to-morrow, move the court to enforce its process.

CHIEF JUSTICE handed down to the bar a copy of a letter addressed from doctor Erick Bollman to the chief justice. It was not publicly read, and for that reason Mr. Hay declared that he should not make any remarks upon it.

Mr. Burr's counsel called James Knox and Chandler Lindsley, (two of the witnesses of the United States) whose affidavits had been drawn and were intended as the ground of the motion for an attachment against general Wilkinson.

Mr. HAY interrupted the motion, by stating, that he himself had a motion to make to the court; and that was, for leave to send up such written interrogatories to the grand jury as he thought proper to put to certain witnesses. His reason was, that some of these witnesses would voluntarily depose to as little as possible; that the grand jury might not always know the particular questions to be proposed to them respectively, and to what point to shape their inquiries; that he himself better knew what they would say, (having seen their depositions); and that his interrogatories might probably aid the jury in their investigation.

Mr. MARTIN.-I shall object to this motion, unless it be qualified by giving us the same privilege. We cannot send up our VOL. I.

2 I

witnesses to the jury, but we may send up our interrogatories. We will assent to the motion of the attorney for the United States upon the condition that he will assent to ours.

: Some conversation ensued upon the motion for an attachment; when the CHIEF JUSTICE asked, if the papers could not be put into his hands, and the argument take place to-morrow; that he wished to consider the question before it was discussed.

Mr. HAY approved of this course. It would prevent the public exhibition of these affidavits, which were drawn up for the sole purpose of defaming general Wilkinson, and thereby making an improper impression on the public mind with respect to the trial of Aaron Burr; and had been obtained from persons who were willing to say any thing to answer the purposes of the accused, but very reluctant to give any evidence on behalf of the United States. That these were voluntary affidavits of these reluctant witnesses, whose connexion with the accused would one day be known. If the place where, and persons by whom they were dictated, were considered, the court would see that the object was to prejudice the surrounding multitude against general Wilkinson; that they had such deadly hatred against him, that if they could but sink him, they were regardless of sinking themselves; but, that the integrity and patriotism of that man would soon be known to all America; that he had merely glanced his eye at a single expression in one of these papers, which was as impudent a falsehood as ever malignity had uttered. The court might compare these papers with the law, and determine whether they would justify an attachment or a rule to show cause, and that the court, if they entertained any doubts, might then direct an argument; but then he hoped that the witnesses would be examined in court.

Mr. RANDOLPH spoke at considerable length. He had been disposed to postpone this subject till to-morrow; but, from the moment when he heard Mr. Hay's anticipating speech he was opposed to all delay. He had produced documents to support his motion; and yet, according to Mr. Hay, it was dictated by nothing more than the policy to defame general Wilkinson. Mr. Hay had wandered into the very error which he had charged to us. He had called upon the court to defend the character of general Wilkinson, the defender of his country, who is to come through the fiery furnace purer than gold; and yet he has himself charged the witnesses now before the court with malignity and rancour! That general Wilkinson was subject to the legal consequences of his own illegal acts, and ought to be punished; that the affidavits were to the point, and ought to be read: they would show that he practised a system of tyranny from the com

mencement.

Mr. BOTTS.-Why do gentlemen object to the present motion being heard, when they have so often insisted upon their own right to be heard by the court? Why do they reproach us with shrinking from the evidence, when they are attempting to screen their favourite witness, general Wilkinson, from a fair investigation of evidence? The witnesses ought to have been under the protection of the court. Their countenances do not bespeak devils: they are like other men; but they are branded as villains. Does Mr. Hay desire that the characters of these men should be immolated to this saviour of his country? that their fair reputation should be sacrificed to save his? The constitution has recognised the equality of man. Though those gentlemen may not be decked out in the tinsel ornaments of military grandeur, their rights as citizens, and the respect due to their characters, are the same as those of any other men. If Wilkinson be able to go through the fiery ordeal, put him on his trial. If his private declarations to Mr. Hay are to be set against their oaths, let it be tried. I desire for them to be put on trial as well as general Wilkinson. Put them in one scale, and him in the other. We hope our motion will be heard.

Mr. MAC RAE, at some length, expatiated upon the impropriety of animadverting at this time upon the character of general Wilkinson. The court had already said, that no step should be taken, which would affect the justice of the case; and it was therefore much better for the court to pursue the suggestion which it had thrown out; to examine the papers in private, and see whether the affidavits were relevant to the point, than to prejudice the justice of the case by a public exhibition of these affidavits; that he was prepared to vindicate his character; but this was not the time, and he wished the cause to be conducted regularly; that the motion ought to be reduced to writing, and the court would then decide on it, and the affidavits together.

Mr. WICKHAM protested against the secret tribunal to which gentlemen wished to resort, for stifling inquiry and murdering character. That gentlemen complained of the waste of time, but they themselves wasted the most by previous questions. The gentlemen who have made these affidavits are upon their oaths. Is it right, said he, for the counsel to charge them with perjury, and yet not give them an opportunity of vindicating their veracity? If an expression escape our lips, we are charged with forestaling the public opinion. In every instance they wander into bold assertions and violent invectives. Is Wilkinson's character too sacred for public investigation? We have a right to be heard, and insist on it.

Mr. HAY denied having made any such assertion. He had merely alluded to one expression in their affidavits, which was too

monstrous to be believed. But why all this feeling on the present occasion, when gentlemen have so often charged general Wilkinson with perjury?

Mr. MARTIN.-When did we charge him with any other perjury, than that of violating the constitution which he had sworn to support? Is not this notorious? Are not Swartwout and others here to prove it? We did not say that general Wilkinson was ready to perjure himself; but merely that he had every thing now at stake, and would go almost all lengths to hang colonel Burr.

Mr. WICKHAM insisted on their right to go on with their motion; that the court only wished to get the affidavits to understand their arguments better; but even the court could not deprive them of the right to be heard as advocates.

After some other discussion, Mr. Burr agreed to place the papers in the hands of the court, and to waive his motion till to

morrow.

CHIEF JUSTICE.-Reduce the motion to writing. [This was done.]

Mr. BURR.-It is only upon the affidavits of Knox and Lindsley, that we move for a rule to show cause why an attachment should not issue against general Wilkinson.

Mr. MARTIN hoped, as colonel Burr had postponed his motion, the attorneys for the United States would postpone theirs.

Mr. HAY refused, upon the ground, that the witnesses were now before the grand jury, and that his interrogatories would be necessary to direct their inquiries; that he knew the testimony better than they did, and in saving time, he wished to promote their convenience and to put them on the track to get the whole truth.

Mr. BURR.-I instructed my counsel to consent to this motion upon the condition, that I should also be permitted to send counter-interrogatories; and the way to get the whole truth is to send interrogatories on both sides.

Mr. HAY did not feel himself at liberty to acquiesce in such a proposition. He would rather trust to the distinguished intelligence of the grand jury.

Mr. MARTIN said, that in his practice of nearly thirty years, he had never known interrogatories to be sent to a grand jury; that such a practice had never been known in the whole history of jurisprudence.

CHIEF JUSTICE said, that the court was unwilling to declare its opinion before it heard argument on that point; that the practice was uncommon in America, because indictments