to communicate. I therefore withhold those parts of this letter which, in my own judgment, ought not to be made public.

Mr. BURR.—The president of the United States is no more privileged to withhold such evidence than Mr. Hay is: for if he were brought into court as a witness, he must be examined like other witnesses; and if any oral evidence which he could give, or document which he possessed were to be dispensed with, it would only be on the principle that the public good required

secrecy.

Mr. WICKHAM.-The subpana duces tecum has been regularly awarded to the president, who has transmitted the letter to Mr. Hay and empowered him to deliver it when the court shall direct it. The president has a discretion on the subject; but he cannot transfer the exercise of that discretion to Mr. Hay. In England there is an officer who is keeper of the conscience of, the king; but there is no such officer here. I did not know that Mr. Hay was the keeper of the president's conscience. It is an established rule that evidence essential to the interest of any party is never to be suppressed from motives of real or supposed delicacy. We all perfectly recollect the history of the trial of the dutchess of Kingston for bigamy, in which a professional man was brought forward to give evidence of a most delicate nature, which he had most solemnly promised to conceal, and which he therefore refused to state. But the court said that motives of delicacy were not to be regarded in courts of justice in opposition to the known principles and maxims of law, which require every witness to tell the whole truth.

If the president of the United States were himself to come forward and declare on oath that in his judgment the public good required that the letter should be withheld, because its disclosure would bear on the most important interests of the state, it would certainly deserve consideration: but this is not only not the case, the president has made no such declaration, but even Mr. Hay does not pretend to say that it can have this effect.

But suppose this letter contains the most malignant and unfounded censure against colonel Burr; suppose he is calumniated in connexion with some gentlemen of the first respectability; suppose it to be all calumny, unjustly charging those individuals with crimes of which he knows they are innocent and which they hold in abhorrence; would it not be a fair argument in our favour that he used a tissue of calumny with respect to other respectable characters? Would it not weaken the testimony of general Wilkinson in the minds of an impartial jury? Suppose every tittle of what he said was the grossest and most unfounded slander; would it not go much to diminish the degree of his

credit? I do not say that this is the fact, but it may be the fact. This is a complete answer to Mr. Hay's observations.

But Mr. Hay says that the letter displays the utmost candour and liberality; that it was dictated by justice and patriotism; and from the speech of Mr. Hay, in which he has made such an eulogium on general Wilkinson's talents, merits and character, he may deserve all these praises; but we have a right to dispute it, or at least to inquire into these matters. We consider the document itself as material to our defence, and we demand its production as a matter of right.

The counsel on the other side supported his argument for refusing to produce the letter by reference to our calling for the affidavit of Jacob Albright. When Albright prevaricated in court, we wished to compare his testimony taken before, with what he said in court, which was a direct contradiction to his deposition: we urged them to produce it, on a supposition that it would contain something that would invalidate his testimony: but, it seems, it is wonderful that we did not make use of it. But have we therefore no right to insist on the production of this letter? Does it follow, because that paper did not answer our purpose, that we should not have the benefit of testimony to which we have a right? We might admit, that that prediction has not been verified without affecting our right to hear proper evidence or to reject what is illegal: but in fact the evidence of that witness at different times was inconsistent and unworthy of credit.

There is but one ground on which the letter can be withheld, and that is, that it contains state secrets, which the public good forbids to be disclosed. Who is to make that excuse? The individual who is president. But he cannot delegate this right to another. Motives of delicacy ought never to be regarded by courts on such occasions.

After some further discussion the CHIEF JUSTICE said that the subpana duces tecum was sometimes awarded on motion, but more frequently as a matter of course on the suggestion of the party; that this case had been, on principle, fully argued before; and that the writ must be awarded returnable immediately. This was accordingly done, and Mr. Hay said he would acknowledge service of it; that he would write a copy of so much of the letter as related to the case now before the court.

Mr. Hay's acknowledgment on the writ was as follows: "I hereby acknowledge service of the above subpoena, and herewith return a correct and true copy of the letter mentioned in the same, dated 12th November, 1806, excepting such parts thereof as are, in my opinion, not material for the purposes of justice, for the defence of the accused, or pertinent to the issue now about to be joined: the parts excepted being confidentially com3 T

municated to the president, and he having devolved on me the exercise of that discretion, which constitutionally belongs to himself. The accuracy of this opinion I am willing to refer to the judgment of the court, by submitting the original letter to its inspection. I further certify, in order to shew more clearly the irrelevancy of the parts excepted to any defence which can be set up in the present case, that those parts contain a communication of the opinion of the writer concerning certain persons, about which opinion, or the fact of his having communicated it, the writer, if a witness before the court, could not legally, as I conceive, be interrogated; and about which no evidence could legally be received from other persons.

GEORGE HAY."

The CHIEF JUSTICE asked if there were any objections to this

return.

Mr. BURR said that he could not be satisfied with a copy of part of the letter.

Mr. HAY said he would reduce all to writing and submit it to the inspection of the court according to his return; but he could not submit to public examination the original, or a copy of the whole for the reason already explained.

Mr. BOTTS said he did not know whether he had a right to substitute a copy of the original. He submitted it to the sound discretion of the court.

Mr. MARTIN said that the personal attendance of the president was dispensed with only on the condition that the letter should be produced.

Mr. HAY said that he hoped the court would not understand what he had said as Mr. Wickham had-that he threw out a defiance; for he had no such idea in saying that he would act according to his own judgment. He wished however to know the opinion of the court upon it.

The CHIEF JUSTICE said that the object of the subpoena was to bring the letter itself into court and not a copy.

Mr. BOTTS. It would be a matter of the deepest regret that an attachment should go against Mr. Hay. But, if it were really necessary, no consideration of friendship, even if he were my brother or father, would deter me from making the motion for it, since he has declared his determination to go to prison sooner than surrender the letter. Nothing would give me greater pain than to be under the necessity of making such a motion. To avoid this unpleasant step, there is another alternative involved in the nature of the cause, but which is extremely disagreeable, as it will produce delay, which is so much to be deprecated by both parties: I mean,. that the cause shall be continued till the letter shall be pro

duced. Inconvenient and oppressive as it may be, it is preferable to the former.

But since Mr. Hay wishes you to decide this point, consider the return he has made. It is, that there are certain parts of the letter which our adversary thinks irrelevant and unnecessary to our defence; and which for that reason he refuses to produce.

The return presents two things for consideration: First, whether the attorney for the United States be a competent judge in the last resort, whether the letter be material for our defence or not; and secondly, if he be not a competent judge, who is to judge of the relevancy of this letter.

First. Is the attorney a competent judge of what is necessary and proper for our defence? If he be, our security is left to his discretion. The principle is, that the attorney is worthy of trust. In the present instance this will not be denied: but you are to consider the application of the general principle; that it is the office and not the officer that is to be regarded. We cannot admit that the attorney of the United States is proper to be trusted with the defence of the accused; because that office is associated with all the zeal, all the feelings, and all the inclinations to carry on prosecutions for the state with vigilance and alacrity, which seem requisite to have the necessity of a conviction impressed on the minds of the jury. This is natural to the fallibility of human nature in its most perfect state. I speak of the officer in his official character as discharging the duties of that office, and not of the gentleman as he at present fills it. When the rights of the accused shall depend on the indulgence, humanity and integrity of that officer, it will be fatal to the liberties of this country. While he holds this office of high trust from the government, it is incompatible that he should have the trust of the defence. It would be like confiding the safety of the defendant to an officer who must from necessity be his official enemy. These remarks will apply, however humane he may be, and however well disposed to do justice to the accused. But as to the judgment of that officer, are we to depend on his arbitrary discretion whether we are to have the paper or not? Shall we be compelled to depend on the opinion of that of ficer, who, from his office, is bound to carry on the prosecution against us with all possible rigour; to contest all our proof; to invalidate the evidence of our witnesses; in fine, to do every thing which may be for the interest of the prosecution, and every thing against the defence? On this arbitrary discretion, are we to depend for the privilege of defending ourselves by evidence? The proposition is monstrous. It goes to vest in a public officer, who is our official accuser, arbitrary discretion, which all good judges and able writers, say, ought not to be vested anywhere, not even in the most upright judges: because discretion, as the celebrated

lord Cambden says, is the law of tyrants. In the hands of a zealous public prosecutor, it would be the most dangerous weapon that. could be employed for the destruction of civil liberty.

I take it then to be an established point, that the attorney for the United States is not himself to be the arbitrary judge of what is material to the defence of the accused. I take it to be true, that when a defence is necessary, he is not bound to reveal to the court beforehand of what it consists, but that he has a right to conceal and deliberate in every thing that may relate to it, so as to enable him to decide, with the advice of his counsel, whether it be applicable to his defence or not. But when the reverse of that proposition is known, that the defendant shall be obliged to disclose his defence, as well as to pursue the advice of the public prosecutor how to make it: upon this additional view of the subject, it would be clear that we should be at his mercy. You are to give your judgment on the paper; to say whether it have relation to the defence, which you have never thought of, and of which you know nothing. How are you to judge that there is this relation till you know the thing that it has relation to? Are we then to disclose the nature of our defence and our reasons for demanding this letter, with the use we intend to make of it? Is this court to be transformed into an inquisitorial tribunal to decide without hearing the accused? or is this court to go through the mockery of hearing the accused before the subject can be made known? How is it to decide on the materiality of the letter by relation to the defence unless it fully know that defence? How can you judge that there is this relation till you know the thing that it has relation to.

We have been told much of treason stalking abroad at NewOrleans, and of the meritorious and successful efforts of general Wilkinson to prevent its dreadful effects. His character has been eulogized for his watching over the safety of New-Orleans. We have formerly heard much of his motives of delicacy to prevent the exposure of the contents of this letter. His profligate and shameful disregard and prostration of the constitution furnish no equivocal data of his principles and ideas of delicacy. We understand now that general Wilkinson has no difficulty on the subject of exposing these transactions. If he be not interested in preventing the disclosure, are the United States interested in preventing the publication of truth or in the suppression of falsehood?

Mr. HAY.-I do not know what are general Wilkinson's sentiments on the subject, but he 'made no objection to the disclosure.

Mr. BOTTS. Then sir, the objection does not come from general Wilkinson but from Mr. Hay, as his guardian, against the publication of this letter, because certain parts of it relate to those