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 ur ged 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 differ.. ent 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 subpæna, 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 com

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 inaking 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 officer, 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 materi ality 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

two conspicuous characters whom he charges with disaffection and the want of fidelity to the government. But, sir, justice, not only to those two characters, but to general Wilkinson himself, if his reputation be as fair as it has been represented, requires that this objection should be disregarded.

First, as to those gentlemen, is it just that their characters should be thus assailed without the possibility of making any defence? Ought not the government to be glad, ought you not as a patriot to be proud, of an opportunity to do an act of such manifest justice as to let them know this accusation, and, if unjust, to repel it? Will you not give those high characters an opportunity of keeping themselves up and proving their integrity and patriotism, if they be traduced by calumny? Will you not allow them the constitutional privilege of being confronted with their accuser, and defending themselves by a fair trial? If they be unjustly charged, is it not just to expose general Wilkinson to the indignation of mankind for his false and malicious accusation? Or if it be not unjust, is it not right to expose those two characters to public justice and punishment, and give to gen. Wilkinson an opportunity of proving his innocence and patriotism and adding more laurels to his venerable brow? If there be no ground for the suspicions against his reputation, will not those letters tend to remove them and establish his character on a firm basis? Does public justice require that general Wilkinson should be at liberty to diffuse false and malicious accusations against whomsoever he pleases without restriction, check or control?

I never can sufficiently express my detestation of this system of state secrecy. I never can express in terms sufficiently strong, that detestation and abhorrence which every American should feel towards a system of state secrecy. It never can conduce to public utility, though it may furnish pretexts to men in power to shelter themselves and their friends and agents from the just animadversion of the law; to direct their malignant plots to the destruction of other men, while they are themselves secure from punishment. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of the United States have a right to know every public act, every thing that is done in the public way by their public functionaries. They ought to know the particulars of public transactions in all their bearings and relations, so as to be able to distinguish whether, and how far, they are conducted with fidelity and ability; and, with the exception of what relates to negotiations with foreign nations, or what is called the diplomatic department, there ought to be nothing suppressed or concealed. We all know the extent of the rule which requires of all persons summoned to give evidence in a court of justice, a disclosure of the whole truth. We know that communications