bited, and which relate to other people and not to the accused, are the most material. This extraordinary declaration shews the outrageous length to which they mean to proceed. It is extravagant and inconsistent with principle to urge, that that which is not pertinent to the issue, is most material to their defence: for nothing is more clear than this, that that which does not at all relate to the issue cannot be admitted as evidence if it be introduced.

The court said yesterday, that it was not disposed to hear such information as had a tendency to embroil general Wilkinson in controversies with other people, without producing any possible advantage to the party. Now, is it not evident that this can be the only effect which the information required can produce? I hope, that in consideration of all the circumstances, the return made by the attorney, and the authority of the president of the United States devolved on him, (if those parts of the letter which he deems improper to be divulged, be not material to the defence of the defendant, and if the power of withholding from public view what the public interest requires should not be disclosed, be vested in the president,) the court will be convinced that the attorney may be confided in as to the nature and effect of this letter; especially as he has manifested every disposition to give the defence every aid, consistently with his views of the public interest, by submitting the original letter to the inspection of the court, by referring to the honour and candour of the counsel themselves, whether there ought to be a disclosure of the parts which we think the public good requires to be concealed.

Mr. HAY.-I mean to trouble your honours with but very few observations. The question now is on the motion to continue this cause, and the motion is to the sound discretion of the court. Surely the court will never agree to continue it unless substantial justice require it. This is not like a common motion for a continuance. It is to postpone the trial till a certain document shall be produced; the disclosure of which, we say, is incompatible with the interest of the community. This document we are willing to submit to the inspection of the court, but not to be the subject of open and public discussion, unless the court should deem it necessary and proper after having examined it. Before the court will order a continuance of the cause, it will require, at least, some good reason to justify it; and it is clear that sufficient cause has not yet been adduced.

Mr. BURR. The character of president of the United States cannot devest him of the character of an individual. There are certain claims which can be rightly required of every citizen, and certain duties which he is bound to perform. These apply to the individual who is president as well as to all others. As president, he has his channels of official communication. The information

he receives through these are official; but if any communication be derived through any other channel, it cannot be official.

Again sir, the president is not the keeper of any public papers. You never go to the president for papers. He has no public office and can keep no public papers. There are certain departments, established by law, to keep all public papers and documents, over which certain officers preside: but it would be censurable, it would be criminal in him, to retain any public papers. They should be all distributed in the offices of those departments. Every citizen is bound to obey the subpoena duces tecum, and bring with him any record or public or other paper in his possession, which it requires him to adduce.

Another circumstance will shew this argument to be correct. When the president retires from office, his successor succeeds to the possession of all the public papers. I mean those which are termed official; every thing that belongs to the public. I ask then what becomes of those letters which are addressed to him as a private individual? He has a right to retain them. If he give them to the public, they belong to the public. When once they are deposited in the public offices, they become public documents as filed by a public officer in his official capacity. General Wilkinson could have no communication with the president but through the secretary at war, and then his communications so made would become official papers of the government, and be filed in the office of the latter. As this letter is not deposited with that secretary, the president as to it stands as an individual. As an individual he may be the object of communications, bound to give evidence and disclose whatever he knows, according to the rules of law, when required by a court of justice. Should some individual disclose a conspiracy as a secret to another, is that to protect the latter from disclosing the conspiracy when called for his testimony in a court of justice, and when that conspiracy may succeed if unrevealed? Suppose the president were before you, could he say that this was a state secret, and thereby excuse himself from disclosing it? This is disproved by his having possession of it: because, if it were an official document, it would be deposited among the archives of state in the office of the minister of war. This is therefore a mere private communication, which no individual has a right to withhold from a court of justice, when its production becomes necessary for the purposes of justice. The case of Marbury v. Madison ought therefore to have no weight in this case, as that was an application for a public official document. It is only when such documents are perfectly confidential, and their disclosure would be mischievous to great national interests, that the constitutional officer has a right to withhold them, for a time, from public view.

A considerable part of the arguments have reference to the contents of the letter. It is unnecessary to say any thing on that subject till it shall be produced. But there has been one great secret developed here to-day; and that is, that a dangerous system of espionage has been adopted by the government, by which I am sorry to say, secret denunciations have not only been produced, but invited.

Mr. HAY.-I beg leave to make a single remark, not in answer to the general observations of the accused, but to one part,-that "denunciations have been invited." This assertion is unwarrantable. You may be perfectly satisfied that it is not correct.

Mr. BURR.-I should be glad to be convinced that I was in an orror; but I think I am not. The only way to discourage denunciations and satisfy the public that they are not invited, is to expose the names of the parties by submitting the letter.

Mr. WICKHAM spoke at considerable length in support of the motion for a continuance of the cause till the letter should be produced. He contended that the declaration of colonel Burrthat denunciations were invited, was perfectly correct, if this letter, containing a violent denunciation of respectable-persons, addressed to the president in his official character, were in possession of the government and refused to be exhibited. That the natural effect of concealing such denunciations would be to encourage and invite them: for, if this principle were established by the government, that no communication made to it respecting the characters of individuals should ever be disclosed, then no calumny, however wicked and malignant, would ever be detected or punished: but, if it were known that the authors of unjust accusations could be discovered, then the apprehension of punishment would deter many from doing what the expectation of impunity would encourage them to do. That it had been said that this was a motion for a continuance for the want of a particular piece of testimony, and that such a motion is never granted unless the materiality of the testimony be positively sworn to. He admitted this to be the general practice when a motion is directly made for a continuance; but that that was not the case then. That they were ready for trial unless prevented by the act of the prosecutor, who was in possession of a document which colonel Burr and his counsel thought material to his defence. That from the nature of things, it was extremely probable that it was material; that they had a right to the use of it; and as it would be so easily produced the accused had a right to demand either that it should be immediately produced or that the trial should be postponed till it was produced; that this was therefore not a motion for a continuance, but for the production of a paper in possession of the prosecutor,

deemed by the accused to be material to his defence. If the cause were continued till the paper was produced, the delay ought only to be imputed to the refusal to produce it. The question then was, whether a sufficient reason had been assigned for withholding the paper? His client had stated, that he had endeavoured in vain to obtain it from the office of that department to which it belonged. If the letter had been addressed to the president, his duty would have been to file it immediately with the secretary at war. Whatever document he receives of an official form, he files with the secretary of that department to which it relates; and this belonged to that of the secretary at war. That this principle concerned the rights of all the people of this country; that they had a right to know the conduct of their public agents, and to inspect all documents that ought to be deposited in the offices of the different departments. That whether the letter be official or private, it ought to be exhibited when necessary to the defence of the accused. He denied the sufficiency of the reasons for withholding it which were offered by the president through his officer, said to be clothed with his powers and standing in his place. That without disputing the power of the president, he might dispute his right to delegate or transfer it to another, as it was a power constitutionally vested in him, and intended certainly to be exercised by himself personally. That if he could depute another person to exercise this power, he could transfer to others all his powers and devolve on them the performance of all his constitutional duties: a doctrine which he supposed gentlemen would hardly attempt to maintain. That it was true, that the lord chancellor in Great Britain exercised such delegated powers from the king; but he denied that according to the genius of our government, such a power could be devolved by the president on the attorney. That the president must perform in person, and not by deputy, those great trusts confided to him by the constitution.

Mr. Wickham also insisted that the president himself had not the right contended for by the counsel of the United States; that of withholding this letter on the principle of its concealment being necessary to the public good. In a government of laws like that of the United States, there should be no state secrets. If the president were present, he could not be permitted to withhold information further than the public good would justify, within the true nature of confidential communications, such as correspondence with foreign nations. If once a "system of espionage" were established by the government by the receipt and encouragement of secret denunciations and subsequent concealment and protection of the denunciators, no man, however innocent, could be safe; because his character would be traduced without → possibility of detecting the calumny or punishing its authors. the case of Marbury v. Madison, did not apply: the con

clusion to be deduced from that case was contrary to what Mr. M'Rae supposed. The decision there was, that the secretary of state being the depository of the president's confidence for the public good, ought not to be compelled to disclose the communication. That there was no secret denunciation there.

The CHIEF JUSTICE said that the principle decided there was, that communications from the president to the secretary of state could not be extorted from him.

Mr. Wickham then added, that another objection to their motion was, that this letter related to third persons, and that the only advantage the accused could take of it was, to abuse general Wilkinson. This he denied. That it was with great reluctance they attacked his character; but where his conduct merited censure it was their duty to bestow it. That to consider it in the right point of view the case was, that general Wilkinson had a great charge against his client. General Wilkinson might, from various circumstances, be implicated in the imputed offence himself; and if so, it would affect his credibility, and that it would be an inexcusable dereliction of their duty, if the counsel of colonel Burr did not urge every proper objection against the testimony adduced in support of the accusation. That gentlemen had said that these papers were not material to the defence. He observed that the materiality of testimony depended on law and fact; that it was impossible to say what the law was without a knowledge of the facts; and he asked whether the gentlemen pretended to know the facts which the accused intended to prove in vindication of himself. The degrees and circumstances of evidence that may be adduced to convince the human mind, said Mr. Wickham, are various. Some are more or less complex or simple; some more or less susceptible of confirmation or refutation, and more or less entitled to credit: as some are susceptible of easy determination depending solely on the evidence of the senses, and others of more difficult proof as connected more or less with propositions of law, the veracity of witnesses and other circumstances. For instance, whether A. was at such a place on a particular day, or whether such a day was fair or cloudy, is a plain and simple question which can be easily settled by the report of eyewitnesses: and many other questions of the same kind are susceptible of like easy solution. But there are other questions involving the consideration of legal propositions and contested acts, which cannot be so easily determined.

He does not pretend to any personal knowledge of our case; he rests upon the information of other people. Is that information correct? Is the charge true? If true, how is it to be explained? As he does not possess any knowledge of our defence, how can he say that this letter is immaterial, or that it will not