it may influence the minds of the jury, who may have to try the cause, and, consequently, may occasion an unjust determination. Why are such rules of caution adopted in taking evidence, but to prevent false swearing? Why are needless force and violence in making arrests forbidden, and why is force towards a witness censured by the law? Because, in these cases, the mind is not left free, though it ought to be free. Compare these cases with the severity practised in this case. The minds of the public may not be prejudiced, but the mind of the witness was not free: he was under temptation to adhere to what he had said. He may, indeed, not have been under terror; perhaps the firmness of his mind may have supported him, and prevented him from being alarmed: but terror was rigidly employed by military authority. He was arrested and thrown by a military officer into gaol; was escorted by a military officer; forced on board a military vessel, under the command of the same military officer, and there for a long time restrained by the same military officer. If there can be a case of greater enor mity than this, it has eluded my search. If there were nothing in this case more than the improper and unjust effort to obtain the affidavit of Mr. Knox to commit him, it would be sufficient to constitute a contempt of the court, and would be punishable by attachment: but it is rendered further criminal by the force used to obtain it. The liberty of the witness was invaded. A free citizen of the United States is dragged by corporeal force and thrown into gaol, for the crime of being a witness; and this within the knowledge, and at the instigation of general Wilkinson. I hope I shall not be told, that there was an association with certain conspiracies, which rendered these rigorous measures necessary and proper. There was no connexion proved between Knox and any conspiracies. Why insidiously attack a man as a witness, who is to be denounced as a criminal? I hope that no man, who is not guilty of a crime, will be caught and cooped as a gaol-bird, and compelled to receive crumbs of bread through the grate of a prison, at the will of a military commander, especially when I recollect what is to be superadded: that he is to be transported twelve or fifteen hundred miles, not for trial or suspicion of an offence, but for the iniquity of being supposed to be a witness, accidentally acquainted with facts. What are to be the consequences, if such doctrines as these are to be tolerated? That it is only in the breast of a military commander to transport any, the most peaceable citizen, if he be only supposed to be a witness, on board of a vessel, under military restraint, at any season of the year, however inclement, and any distance, without a crime, or the suspicion of a crime? We, who have so often seen and read the declaration of independence, must feel indignation at the

oppression practised upon Mr. Knox. This is one of the acts of oppression, we are told, that the British government had committed against us. "Transporting us beyond seas, to be tried for pretended offences," is stated in the declaration of independence, as one of the principal acts of misrule, which roused us to resistance, and to declare ourselves independent. To be free from such aggression on our rights was a fundamental part of the basis of our independence. This was not a mere ebullition of patriotism for the purpose of exciting popular phrensy; nor one of those artifices used to increase the public discontent, or to swell the catalogue of the crimes committed by Great Britain. No, sir, this particular injury alleged in the declaration of independence was a real, an enormous grievance, which was execrated by the wisest men of our country. Exemption from it was founded in human rights, and was one of those blessings of liberty to which we had by nature a right, and which having secured, we ought ever to be jealous of preserving. This invaluable privilege we claim as citizens. It is a demand which we make of the government for protection, and it must be guarded by the court, unless some of those doctrines, which we have long reprobated in a military despotism, shall be sanctioned to destroy our rights. Even then, when criminals were transported, the innocent were left unmolested. What shall we say to this aggravated case, when the gentlemen themselves must admit, that this man is innocent?

I will not enter into those feelings that might be described, but I feel horror when I reflect that an individual, innocent and inoffensive, engaged in locating lands for the subsistence of himself and family, should be stopped from completing his laudable undertaking, and taken up far from his home, his family and friends, and transported as a witness twelve hundred miles, to the injury and derangement of his views and domestic concerns. I hope, sir, that transportation will be reserved for the guilty. If these things be done and tolerated in the green tree, what shall not be tolerated in the old? What is to be the effect of a precedent like this? Who can foresee the consequences if it be not repressed? This particular case may lead to dreadful events, and by artificial means become a tempest. But remember, sir, you have foresight, and can judge of the practical effects of injurious precedents; and if the unjust proceedings on this case be not severely censured and punished, though we may not suffer, our children will repent of it. But this act is said to have been extra-territorial, and that Wilkinson was not engaged in the whole of it; and therefore it is pretended without the control of the court. This is true, as far as Mr. Hall is concerned. We cannot operate on him here. If it were so at the beginning, see how it has passed from New-Orleans to Richmond. VOL. I. 20

is

Wilkinson was engaged in it at the beginning, at the second stage, and at James' river itself. The spirit of Wilkinson pervades the whole. He is every where seen, not merely as an integral part, but as the first cause of the whole. Is this court to suffer its witnesses to be abused without its jurisdiction? But I say, that it was not without the limits of the jurisdiction of this court. There must be a power in every court, to procure the attendance of witnesses; and wherever that power extends, the witnesses are protected by it; particularly if the man who has abused them, be present before the court. General Wilkinson present and may be animadverted on. I will not pretend to say, what effect this may have on his character, nor can it affect the right to examine into his conduct; because he ought to have preconceived the consequences before he committed the acts. The man who interposes the sword, in support of the civil authority, ought to have the patriotism to acquiesce under the consequences, let them be what they may. The prying world may ask, whether Wilkinson is to be supported in such outrages? In practising on the necessities, fears, and terrors of the witnesses? Whether he is to be supported in the duress which prevailed on land and water? and in (what will be more fully discussed hereafter) the improper if not felonious taking of letters from post-offices? These questions will be asked after the testimony is known. The answers will be awful to him. The consequences of his violent and outrageous conduct must be awful to him. He will find himself devested of his military array and parade with which he used to be surrounded at NewOrleans, to stand here like a common individual. He must then answer those questions and account for his invasions of the rights of his fellow citizens. The magnitude of the offence calls for exemplary punishment. I insist on the motion that I have made, that an attachment do issue against general Wilkinson, for the various reasons I have stated. He is here himself, and if he be innocent, he can answer and purge himself on oath, of the guilt imputed to him; and if guilty of abuse of power, let him be punished in the proper manner.

Mr. MARTIN said, that he would make a few additional observations; that he would not enter into a general detail of the subject then, but would adduce some additional authorities to show, that the acts at New-Orleans were illegal, and that the magistrate had no authority for what he did. If it were pretended that the act of congress justified it, gentlemen were much mistaken. [He then read Graydon's Digest of the Laws U. S.] The 33d section of the judicial act, must be that on which they relied; that witnesses examined under the circumstances there stated may be committed, but that this law extended only to the

magistrate before whom the arrested person was brought to be examined; that it says, " it shall be the duty of the judge of that district where the delinquent is imprisoned, to issue a warrant, &c." that Hall did not commit colonel Burr, who was seized and transported more than a thousand miles, was brought hither, examined here, and recognised to appear this term; that the magistrate had no power to examine the witnesses at all, except where the accused person was brought before him to be examined. That 2 Hale's Pleas of the Crown, p. 51, and 285., and Mac Nally, 314. prove that Hall had not this authority. Those authorities state, that where a crime is committed in the county of B., and the criminal is arrested in the county of C., the magistrate before whom he is brought to be examined in the county of C. has really no original jurisdiction over him, nor can his examination be read on his trial, though from the necessity of the case, and to preserve the peace, he has a consequential jurisdiction; and can examine and commit him in order to be sent to the proper county. But that here, as the party accused was not brought before Hall, he had no power whatever. He had neither original nor consequential jurisdiction. Every thing he did at New-Orleans, at the request of general Wilkinson, was perfectly illegal and extrajudicial; but that perhaps it might be said, that statenecessity would justify what the law did not authorise. On this subject he referred the court to what was said by one of the most celebrated judicial characters of the British judiciary, lord Cambden, 3 State Trials, 320. He referred also to 1 State Trials, vol. 7. 180.

Mr. HAY.-He is anticipating arguments which we shall ne

ver use.

Mr. MARTIN quoted 3 State Trials, 8th article of the impeachment of Sir Robert Beckley. 1 vol. 709, 710, 711. 716, 717. 2 State Trials, 306. vol. 12. 7 State Trials, 306.

Mr. WIRT.-I shall not trouble you to take notes. The short question is, whether general Wilkinson be guilty of a contempt, and ought to be attached? We proposed that the court should decide at once without any observations on either side; but gentlemen insisted on an argument, and they have had it. Our impressions are, that the evidence is perfectly clear; and we are willing to submit the question on the argument already heard. Mr. BURR'S counsel insisted to speak further.

Mr. WICKHAM.-All questions are very plain to counsel on their own side. They may be mistaken. Though it may not be perfectly clear on our side; yet I think I can convince the court, that on an examination of the law and the facts, the attachment ought to issue.

Mr. MAC RAE.-I regret that so much of the time of the court is to be consumed on every point. I confess that my hopes were, that our offer, to submit the case without discussion, would have been agreed to; but as they insist on an argument, they must be gratified. I hope that I may be permitted to say, that in the whole course of my short practice, I never read or heard of a case similar to that now before the court. The motion as to its foundation is "sui generis!" No motion of a similar character or nature can be found in the annals of forensic proceedings, either in England or in this country. If there be any record of any such motion, I have been unable to find it, after the most industrious researches. Mr. Randolph, sensible of this, thought proper to read a passage from 3d Hawkins, to show, that such cases might occur, for which no precedent could be found; and that in such cases, the court was to decide " according to the general reason of the law."

It was deemed proper to state, as some kind of an apology for the unmerited attack on general Wilkinson, that no precedent could be found to justify this application to the court. Before I shall reply to the animadversions on his character, I beg leave to observe, that general Wilkinson is doubly protected by the law of the land from any danger from this motion, even admitting that the charges against him are true, which is utterly denied. The charge against him is, that he has obstructed the administration of justice in the cause of the prisoner. He is said to have obstructed the administration of it, by two distinct acts: First, by extorting testimony from Knox, on this subject: Secondly, by forcibly bringing him round from New-Orleans to this city, to give evidence here. If these charges were both true, they would not warrant the motion to attach general Wilkinson. I shall by and by, prove them to be untrue. But suppose them, for the sake of argument, to be true. If the offence have been committed at all, according to the allegations of those who have made this motion, it has been committed at New-Orleans. For any real offence committed at New-Orleans, a person is not answerable before this court; because that place is not within its jurisdiction. I should deem it an insult to this court to dwell on such a topic, or to use much argument to prove, that an offence, committed out of the jurisdiction of this court, cannot be judicially noticed by it. But suppose the offence to be done within the limits of Virginia, and of course within the jurisdiction of this court. General Wilkinson, even in that event, would not be answerable in this form; because he appears as a witness before the court, in obedience to its subpoena, and a witness is privileged from arrests: he cannot be arrested for any act of this description.

In the 1st vol. of the Laws of the United States, p. 74, it is enacted, "That the laws of the several states, except where the constitution, treaties or statutes of the United States, shall other