UNITED STATES v. BURR, 25 F. Cas. 55

MARSHALL, Chief Justice, remarked that it was not in the power of the marshal to summon more than twenty-four, as the act of assembly authorized only that number. If he should summon twenty-five, the last would not have power to act; and the marshal would have no power to displace any one of the others, to put-the last in his place. When the panel had been completed by the marshal, its deficiencies could only be supplied from the bystanders, under the directions of the court. Mr. Burr said, the court having established the principle, we must ask their aid to come at the facts.

We wish to know when certain persons were summoned, when discharged, and whether other persons were substituted in their stead. Major Scott, the marshal, said he had not the least objection to state all the facts. A t'ew days ago he had received a letter from Col. John Taylor, of Caroline, one of those whom he had summoned on the jury, stating that a hurricane had destroyed his carriage-house, and with it his carriages, so that he could not use them; and that indisposition would prevent him from riding to Richmond on horseback.

This letter he had laid before their honors, and the chief justice had deemed his excuse reasonable. He had then summoned Mr. Barbour to serve in Col. Taylor’s place. He had also received a letter from Mr.' John MacRae, informing him that he was going to leave the state for his health. He had. in consequence, summoned Doctor Fou-shee in his place. He added, that he felt it his duty to bring twenty-four jurymen into court, and acted upon that principle. ' THE COURT decided that Mr. Barbour and Dr. Foushee were not on the grand jury. Mr.

Burr said, the panel being now reduced to sixteen, he understood it to be the proper time to make any other exceptions to the panel. With regret he should proceed to exercise the privilege of challenging for favor; and in the exercise of this right he should perhaps appeal to the authority of the court to try the jurors challenged. Mr. Hay called for the law justifying the application. Mr. Burr said he desired it to be distinctly understood that he claimed the same right of challenging the grand jury for favor that he had of challenging the petit jury.

He admitted it was not a peremptory challenge, but that hé must show good cause to support it. It would, of course, be necessary to appoint triers to decide, and before whom the party and the witnesses to prove or disprove the favor must appear. Mr. Botts argued and cited authorities in support of the motion. Mr. Hay disavowed the intention of opposing substantial exceptions, and admitted the law to be as stated by the opposite counsel. Mr. Burr.—I shall, then, proceed to name the persons and causes of challenge. The first I shall mention is William B. Giles, against whom there are two causes of challenge.

The first is a matter of some notoriety, because dependent on certain documents or records; the second is a matter of fact, which must be substantiated by witnesses. As to the first, Mr. Giles, when in the senate of the United States, had occasion to pronounce his opinion on certain documents by which I was considered to be particularly implicated. Upon those documents he advocated the propriety of suspending the writ of habeas corpus. The constitution however, forbids such suspension, except in cases of invasion or insurrection, when the public safety requires it. It was therefore to be inferred that Mr.

Giles did suppose that there was a rebellion or insurrection, and a public danger of no common kind. It is hardly necessary to observe that with this rebeEion, and this supposed danger, I myself had been supposed to be connected. Perhaps this may be a sufficient reason to set aside Mr. Giles. But if not, I shaU endeavor to establish by evidence that he has confirmed these opinions by public declarations; that he has declared that these documents, involving me, contained guilt of the highest grade. Mr. Botts.—There is no necessity of adding anything to the observations of Colonel Burr.

If the right of chaUenge exists, the right to try the challenge exists also. But whüe I am up, I will declare that no reflection is intended to be made on the character or conduct of Mr. Giles. That gentleman will be candid enough to admit that there is not the least design to wound his feelings. It is with the utmost reluctance that Colonel Burr has prevailed upon himself to advance this exception. I have authorities, however, to prove that these two causes are sufficient to disqualify Mr. GEes. The- first relates to his public, the second to his individual conduct. Mr.

Giles.—As to exceptions to myself personally, I can have no objection to have them tried. The court will, however, perceive the delicate situation in which I shall be placed. The triers will have to interrogate witnesses, and the result either way is ineligible. I have no objection to state to the court every impression I have ever had upon this subject. But to calling witnesses to detail loose conversations, so liable to be misunderstood, forgotten, or misrepresented, I am certainly opposed. Mr.

Hay.—I was about to make a proposition which might relieve us from all this useless embarrassment, and which might gratify the views of the accused. If the gentlemen who are ehaEenged on the jury will consent to withdraw themselves, I can have no objection. I am content that every one who has made declarations expressive of a decisive opinion should be withdrawn from the jury. I am not disposed to spend time on such points as these. Mr. Burr.—It will certainly save time, and I assent to the proposition. Mr. GEes.—The circumstances which have just occurred place me in an unpleasant situation.

I have no objection to disclose in the usual way, with candor, the real state of my mind in relation to the accused. But I have an objection to the introduction of witnesses to prove casual expressions, which are .so liable to be misconceived. In the present state of things, expressions might be imputed to me which I never used, or expressions which I really used might be mistaken or misrepresented by the witness; or the witness might dedude inferences from my expressions which they did not justify. It was by no means agreeable to me to have been summoned on this grand jury.

Blit for some- time past I have invariably pursued this maxim: “Xeither to avoid nor to solicit any public appointment; but when called to the discharge of any public duty by the proper authority, conscientiously to attempt its execution.” In undertaking to serve on the present grand jury, I was influenced by the same consideration. With respect to my public conduct, I presume it is of public notoriety, and it will speak for itself., I not only voted for the suspension of the privilege of the writ of habeas corpus, in certain cases, but I proposed that measure.

I then thought, and I still think, that the emergency demanded it; that it was fully justified by the evidence before the senate; and I now regret that the nation had not energy enough to support the senate in that measure. This opinion was formed upon the state of the evidence before the senate, which, in all questions of a general nature, is of a very different character from the legal evidence necessary in a judicial investigation. My mind is, however, free to receive impressions from judicial evidence.

In relation to the accused, I feel very desirous, and have often so expressed myself, that the various transactions imputed to him should undergo a full and fair judicial investigation; and that, through that medium, they should receive their just and true character, whatever in point of fact they might be, and that he should be presented in that character to the world. I have no personal resentments against the accused; and if he has received any information inconsistent with this statement, it is not true.

However, as it is left to me to elect whether to serve on the grand jury or not, I will certainly withdraw. The CHIEF JUSTICE.—The court thinks that if any gentleman has made up and declared his mind it would be best to withdraw. Mr. Burr.—A gentleman who has prejudged this cause is certainly unfit to be a juryman. It would be an effort above human nature for this gentleman to divest himself of aE prepossessions. I believe his mind to be as pure and unbiased as that of any gentleman under such' circumstances.

But the decisive opinion he has formed upon this subject, though in his public character, disqualifies him for a juryman. But he is one of the last men on whom I would wish to cast any reflections. So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends. The other gentleman whom I shall challenge is Wilson Cary Nicholas. Mr. Nicholas desired that the objection against him should be stated. Mr.

Burr.—The objection is, that he has entertained a bitter personal animosity against me; and'therefore I cannot expect from him that pure impartiality of mind which is necessary to a correct decision. I feel the delicacy of my situation; but if the gentleman will consent to withdraw, I will waive any further inquiry. Col. Wilson C. Nicholas rose and addressed the court as follows: My being in this situation certainly was not a thing of choice. When I was summoned by the marshal, X urged him in the strongest manner to excuse me.

I mentioned to him that it would be extremely inconvenient to me to attend the court, and that it would be very unpleasant to serve on the jury, on account'of the various relations in which I had stood to Colonel Burr. I had been in congress at the time when the attempt was made to elect Colonel Burr president of the United States. My feelings and opinions on that occasion are well known. 1 had served three years in the senate while Colonel Burr was president of that body, and was one of those who, previous to the last election, had taken a very decided

part in favor of the nomination of the present vice president, for the office at that time filled by Colonel Burr. Moreover, from the time that Colonel Burr first went to the Western country, my suspicions were very much excited as to his probable objects in that part of the United States; in consequence of which I gave early, and perhaps too great, credit to the charges which were brought against him.

Such was my opinion of the importance of New Ovleans, not only to the prosperity, but to the union of the states, that 1 felt uncommon anxiety at what I believed to be the state of our affairs in the West, and had expressed my impressions very freely in conversation, and in letters to my friends during the last winter. Under these circumstances, I doubted the propriety of my being put on the jury; but I felt no distrust of myself, as I was confident that I could discharge the duty under just impression of what I owe to my country, to the accused, and to my own character.

The marshal assured me that he felt the strongest disposition to oblige me, but that he thought he could not do it consistently with his duty. He supposed there was scarcely a man to be found who had not formed and expressed opinions about Colonel Burr. That he, too, was in a situation of great . delicacy and responsibility, and that without the utmost circumspection on his part, he would, be exposed to censure. I renewed my application to the marshal several times, and always received the same answer.

Thus situated, I determined to attend the court, both from a sense of duty and because I would not put it in the power of the malicious and those disposed to slander me to assign motives for absenting myself which had- no kind of influence on me. Another reason for pursuing this course presented itself some time after I had formed this determination. I conceived that an attempt had been made to deter me from attending this court.

I was informed by a friend in the city, that he had heard that one of the most severe pieces- which had ever been seen was preparing for publication, if I did attend-, and serve on the grand jury. From what quarter this attack was to come, I do not know. The only influence which that circumstance had was to confirm me in the determination I had made, as I was much more inclined to defy my enemies than to ask their mercy or forbeaiance. From the first I hesitated whether I ought not to make the same representation to the court that I had made to the marshal.

As I was in doubt on the subject before I came from home, I committed to paper the substance of what I have-now said, and consulted three gentlemen who were lawyers, men of honor, and my personal friends. Their advice to me was not to mention it, for they did not believe-that the court would or ought to discharge me for the reasons I had mentioned. As I was in doubt myself I determined to follow their advice, and the more readily as they seemed confident that I would not be discharged, and 1 was not ambitious of acquiring in this way a reputation for scrupulous delicacy.

I was perfectly willing that my reputation should rest on the general tenor of my life, and did not believe that my character required such a prop. At present I feel myself embarrassed how to act. 1 certainly was, and am, anxious not to serve on the jury, but am unwilling to withdraw, lest it should be thought that I shrink from the discharge of public duty of great responsibility, and am not willing to be driven from the discharge of that duty in a way which should lead to a belief that the objection to me is either acknowledged to be well founded or has been sustained by the court.

Upon this subject, the example of Mr. Giles has great weight with me. That consideration, and. a hope that my motives cannot now be misunderstood or misrepresented, will induce me to do as he has done. Colonel Burr.—The circumstance mentioned by the gentleman, that an attempt has been made to intimidate him, must have been a contrivance of some of my enemies-for the purpose of irritating him, and increasing the public prejudice against me. since it was calculated to throw a suspicion on my cause. Such

an act was never sanctioned by me, nor by any of my friends. I view it with indignation, and disclaim any knowledge of the fact in question. THE COURT established the following as being the proper questions to be put to jurors; First, have p-ou made up your mind on the case, or on the guilt of Colonel Burr, from the statements you have seen ip the papers or otherwise? and finally, have you formed and expressed (or delivered) an opinion on the guilt or innocence of Colonel Burr (or the accused?) Mr. Joseph Eggleston asked to be excused from serving on the grand jury. He had, on reading the deposition of Gen.

Eaton in the newspapers, expressed considerable warmth and indignation on the subject likely to come before the grand jury, and on that account it might be both indelicate and improper for him to serve on that body. But after being examined by the CHIEF* JUSTICE as to the nature of the opinions he had formed, Mr. Burr remarked, that the industry which had been used to prejudice the public mind against him left him very little chance of an impartial jury, and that on the subject of Major Eggleston’s application to be excused he should remain perfectly passive. The court did not excuse him.

The panel was here called over, and fourteen only appeared. The marshal then summoned from the bystanders John Randolph, Jr., and William Foushee. The court appointed Mr. John Randolph foreman of the grand jury. Being called upon to take the foreman’s oath, Mr. Randolph asked to be excused from serving, on the ground that he had formed an opinion concerning the nature and tendency of certain transactions imputed to Col. Burr. Mr. Burr remarked that he was really afraid they should not be able to find any man without such prepossessions.

The CHIEF JUSTICE remarked that a man must not only have formed, but declared an opinion, to disqualify him. Mr. Randolph said he did not recollect of having declared one; and he was not excused. Mr. John Randolph was then sworn as foreman; and the rest of the panel being called to the book, when the name of Dr. Foushee was called he stated that from reading the president’s message, Gen. Eaton’s deposition, and other publications, he had formed an opinion of Col. Burr’s guilt. After some discussion, Dr. Foushee was permitted to withdraw, and Col. James Barbour was summoned in his place.

The grand jury were then sworn, as follows: John Randolph, Junior, Foreman, Joseph Eggleston. Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, James Pleas-ants, James M. Garnett, William Daniel, John Brockenbrough, John Mercer, Edward Pegram, Mumford Beverly, John Ambler, Thomas Harrison. Alexander Shephard, and James Barbour. The CHIEF JUSTICE delivered an appropriate charge to the grand jury, in which he particularly dwelt upon the nature of treason, and the testimony requisite to prove it; after which the jury retired. Mr.

Burr then stated his desire that the court should instruct the grand jury on certain- leading points, as to the admissibility of certain evidence which he supposed would be laid before the grand jury by the attorney for the United States. Mr. Hay objected to the proposition as unprecedented. After some discussion, in which Messrs. Burr, Hay, Randolph, and Botts participated, The CHIEF JUSTICE observed that he was not prepared at present to say whether the same evidence was necessary before the grand jury as- before the petit jury; whether two witnesses to an overt act were required to satisfy a grand jury.

This was a point he would have to consider. That he had not made up his mind on the evidence of facts said to be done in different districts; how far the one could be adduced as evidence in proof or confirmation of the others; but his present impression was, that facts done without the district may be brought in to prove the material fact said to be done within the district, when that fact was charged. The question was postponed for further discussion, on Mr. Hay’s pledging himself that no evidence should be laid before the grand jury without notice being first given to Mr. Burr and his counsel.

Saturday, May 23, 1807. The counsel for Col. Burr observed that, if it met the approbation of the court, the discussion of the propriety of giving special instructions to the grand jury would take place on Monday next. This proposition was assented to, and it was 'mderstood that Mr. Burr’s counsel were to give due notice of the propositions they intended to submit. The grand jury appearing pursuant to adjournment, the CHIEF JUSTICE informed them that the absence of Gen.

Wilkinson, a witness deemed important by the counsel for the United States, and the uncertainty of his arrival at any particular period, made it necessary that they should be adjourned. After some conversation between the court and bar as to the propriety of adjourning the grand jury to some future day of the term, they were finally adjourned till the Monday following. Monday, May 25, 1807. The grand jury appeared in court, and on its being stated by their foreman that they had been two days confined to their chambers, and had no presentment to make, or bill before them, Mr.

Hay observed that he had two bills prepared, but wished to postpone the delivering of them till the witnesses were present, and until it was ascertained that all the evidence relied upon by the counsel for the prosecution could be had. He thought it probable that in the course of a week he should hear of Gen. Wilkinson, who was still absent, and whose testimony was deemed very important. After some conversation as to the propriety of adjourning the grand jury to a distant day of the term, Mr. Hay gave notice of his intention to submit a motion to commit Mr. Burr on a charge of high treason.

On the previous examination, he said, there was no evidence of an overt act, and he was committed for a misdemeanor only. The evidence is different now. Some remarks having been made as to the impropriety of discussing the subject in the presence of the grand jury, they were requested to withdraw. [The argument and opinion delivered on the motion to commit will be found reported as Case No. 14,092b. Tbe opinion was delivered on Tuesday, May 26, 1S07.

It closed with these words: “If it is tbe choice of tbe prosecutor on tbe part of the United States to proceed with this motion, it is the opinion of tbe court that be may open bis testimony.”] Mr.- Hay then rose, and observed that he was struck with tbe observations of the court relative to “publications,” and be would attempt, if possible, to make some arrangement with tbe counsel on tbe other side, to obviate that inconvenience; and be understood they were disposed to do the same. Tbe counsel on both sides then retired by permission of the- court for this purpose. They returned in a short time, and Mr.

Hay informed tbe court that tbe counsel for tbe United States and for Colonel Burr, not having yet been able to agree upon any arrangement which would attain bis object, namely, that of having Colonel Burr recognized in a sum sufficiently large to insure his appearance to answer tbe charge of high treason against tbe United States, without incurring the inconvenience resulting from a public disclosure of the evidence at this early stage of the proceeding, wished to have further time for that desirable purpose. This was granted by the court, and it then adjourned till next day. Wednesday, May 27, 1807. Mr.

Hay informed the court that all hopes of the arrangement which he had mentioned yesterday were at an end; for he had received a letter from Colonel Burr’s counsel positively refusing to give additional bail. He therefore deemed it his duty 'to go on with the examination of the witnesses in support of his motion to commit Mr. Burr. He observed, that he regretted extremely that it became necessary in his judgment to pursue this course.

He felt the full force of the objections to a disclosure of the evidence, and to the necessity of the court’s declaring its opinion, before the case was laid before a jury; but those considerations must yield to a sen¿e of what his engagements to the United States imperiously demanded of him; that in adducing the evidence, he should observe something like chronological order. He should first read the depositions of the witnesses who were absent, and afterwards bring forward those who were present, so as to disclose all the events, as they successively happened. Mr.

Wickham stated that there were two distinct charges against Colonel Burr. The first was for a misdemeanor, for which he had already entered into recognizance; the second was a charge of high treason against the United States, which was once proposed without success, and is now again repeated. On this charge the United States must substantiate two essential points: first, that there was an overt act committed; and secondly, that Colonel Burr was concerned in it.

Everything that does not bear upon these points is of course inadmissible; the course therefore laid down by the attorney for the United States is «obviously improper. He proposes to examine his witnesses in a kind of chronological order. Colonel Burr required that the evidence should be taken in strict legal order. The court and even the opposite counsel will see the propriety of observing this order. If the attorney for the United States has affidavits to produce, let him first demonstrate that they have a right to produce them.

We first call upon him to prove by strict legal evidence, that an overt act of treason has been committed. If he cannot establish that one point, all the evidence which he can produce is nugatory and unavailing. Mr. Hay protested against the right of counsel for the accused to dictate to him the order of introducing his testimony. The two charges against Aaron Burr, he said, were naturally and intimately blended. • They form distinct parts of one great design.

What that great design was, in all its bearings and ramifications, he was not absolutely certain; hut had always conceived that before Mexico was invaded New Orleans was to be taken. How, then, was it possible to separate these two allegations? How could the prosecution separate, line by line,- and word by word, the evidence produced to prove these two distinct allegations? It appeared to him as though the counsel for the defence were determined to stop him at the very threshold of everything which he attempted to do.

How could he advance if every inch of ground was to be measured out to him with such strictness and objections? The proposition was wholly unprecedented, that the counsel before an examining court should be instructed how to bring out his evidence. He claimed the right to bring it forward in its chronological order. . After some remarks by Mr. Wickham and Mr. Burr The CHIEF JUSTICE said it would certainly be better, if the evidence was produced to prove the fact first, and that to show their coloring afterwards; for no evidence certainly has any bearing on the present case unless an overt act be proved.

However, if the attorney for the United States thinks the chronological order the best, he may pursue his own course; but the court trusts to him, that he will produce nothing which does not bear upon the case. After some further remarks by Mr. Hay and Mr. Randolph, Mr. Hay produced Gen. Wilkinson’s affidavit. Mr. Botts objected to the admissibility of the paper, on the ground that it was not competent evidence. He said on this question the supreme court were divided.

The CHIEF JUSTICE here interposed, and remarked that the supreme court were divided on the question of the competency of the letter annexed to the affidavit, not as to the admissibility of the affidavit itself. Hr. Botts proceeded to state his objections to the competency of the affidavit in this court in the present proceeding. First, he objected that an ex parte affidavit ought not to be received when the witness himself could be produced in court. General Wilkinson could and ought to have been here, and this being the case, his affidavit ought not to be received.

But the proposition which he mainly pressed was, that no evidence of any nature whatever, ought to be taken until there is indubitable proof that there was war levied in this district, (Virginia,) and until it is proved that an overt act was committed by Mr. Burr. Mr. Hay, interrupting, observed that the gentleman was renewing a proposition which liad been decided by the court. Mr. Burr said he had understood the gentleman who spoke first apprized the court that the evidence should come forward subject to discussion, which would be made as the evidence went on.

The gentleman was only going into the nature of the evidence presented. Mr. Botts resumed. He quoted the constitutional definition of treason, and asked if it meant that, if one-half of the crime of treason was to be found in this district, you might look for the other half elsewhere? If the affidavit imported anything, it was a declaration or confession; and no declaration or confession could constitute any ingredient of an overt act, unless that confession be made “in open court.” He enforced his views at considerable length. Messrs.

Wickham and Randolph followed, in support of the motion to exclude the testimony at this stage of the proceeding.

The CHIEF JUSTICE stated that the supreme court had already decided, that the affidavit might be admitted under certain circumstances; but they had also determined that General Wilkinson’s affidavit did not contain any proof of an overt act; that he was certainly extremely willing to permit the attorney for the United States to pursue his own course in the order of drawing out his evidence, under a full confidence that he would not waste the time of the court by producing any extraneous matters; but where was the necessity of producing General Wilkinson’s affidavit first?

If there was no other evidence to prove the overt act. General Wilkinson’s affidavit goes for nothing, for so the supreme court have already decided; and by that decision he should consider himself bound, even if he had dissented from it. Why, then, introduce this affidavit? After some further discussion by counsel, the CHIEF JUSTICE said that unless there was a fact to be proved, he was of opinion that no testimony ought to be produced. The question before the court was not whether there had been a treasonable intent, but an overt act.

That fact must be proved before there can be any treason, or any commitment for treason. Mr. Hay then called Peter Taylor, who was Mr. Blennerhassett’s gardener, and Jacob All-bright, a laborer, who had worked on his island, who gave their testimony. [This testimony is more fully detailed hereafter,. and, in consequence, is omitted here.] [After these witnesses were examined, the affidavit of Jacob Dunbaugh was offered.

The argument on the motion to exclude it, which took up the balance of the day, and the opinion of the court excluding the affidavit. delivered the following day, are reported as Case No. 14,692c.] Mr.

Hay observed that as the examination of Colonel Burr for treason had already taken up much time without any progress in the business, and, from the disposition manifested by his counsel, it might last not only ten days, but even ten years longer, he considered it his duty, from information which he had received that morning, to suggest to the court the propriety of binding Colonel Burr in a further recognizance from day to day till the examination could be ended.

He stated, on the authority of a letter just come to hand from the secretary at war, that General Wilkinson, with several other witnesses, might be expected here between the 28th and 30th of this month. This circumstance, said he, renders it essential that he should be considered in custody until he gives security that his person shall be forthcoming to answer the charge of treason against the United States.

The gentlemen who appear as counsel for Colonel Burr may be, and no doubt are sincere, in the opinion they have expressed, that he will not shrink from the charges exhibited against him, and will not, in any conjuncture of circumstances which may occur, fly from a trial; but those gentlemen must pardon me for saying that I entertain a very different opinion. I must believe that his regard for the safety of his own life, would, if he perceived it in danger, prevail over his regard for the interest of his securities.

I give notice, therefore, that I consider him as being already in custody to answer the motion I have made for his commitment, and that he cannot be permitted to go at large without giving security for his appearance from day to day. His situation now is the same as that when he was first apprehended and brought before a single judge for the purpose of examination. Your honor at that time considered him as in custody, and bound him over from day to day; and I only contend that the same course should be pursued at this time. Mr.

Wickham.—The gentleman thinks he has obtained the effect of his motion merely by having made it. I cannot perceive the propriety of a motion to compel Colonel Burr to give bail in any sum before the probable cause to believe him guilty of treason has been shown. When he was brought before your honor for examination, you conceived the sum of $5,000 sufficient security for his daily appearance. But a recognizance has already been given in double that sum. binding him not to depart without the leave of this court. Yet now, although no probable proof of treason has been exhibited. Hr.

Hay requires the court to demand of Colonel Burr additional security! I trust that such a motion will not prevail. Hr. Martin.—It has already been decided by the supreme court of the United States, that not a single expression in Wilkinson’s affidavit amounts to any proof of the charge of treason. The motion of the gentleman amounts to this: “We have no evidence of treason, and are not ready to go to trial for the purpose of proving it; we therefore move the court to increase the bail.” Mr. Randolph. — The first motion of the counsel fob the United.

States was to commit Colonel Burr on the ground of probable cause only. This goes a step farther, and wishes the same thing to be done on the ground of a probable cause of a probable cause; but we trust that we shall not be deprived of our liberty or held to bail on a mere uncertain expectation of evidence. Some further remarks were made by Mr. MacRae, Mr. Wirt, Mr. Botts, and Mr. Hay.

The CHIEF JUSTICE delivered the opinion of the court, the substance of which was as follows: It is certainly necessary that a person accused should be retained in custody, or required to give security for his appearance while his examination is depending. The amount of the security to be required must depend, however, upon the weight of the testimony against him. On a former occasion, Colonel Burr was held to bail for his daily appearance in the sum of five thousand dollars only, because there was no evidence before the judge to.prove the probability of his having been guilty of treason.

When the examination was completed, the sum of ten thousand dollars was considered sufficient to bind him to answer the charge of a misdemeanor only, because the constitution requires that excessive bail should not be taken; but that recognizance had no application to the charge of treason. Yet, whether additional security ought to be required in the present stage of this business, before any evidence has appeared to make the charge of treason probable, is a question of some difficulty.

It would seem that evidence sufficient to furnish probable cause must first be examined before the accused can be deprived of his liberty or any security can be required of him. Yeti before this could be done, he might escape and defeat the very end of the examination. In common cases, where a person charged with a crime is arrested and brought before a magistrate, the arrest itself is preceded by an affidavit, which furnishes "grounds of probable cause.

The prisoner therefore is continued in custody, or bailed until the examination is finished: but here there has been no arrest for treason, and Colonel Burr is not in custody for that offence.

The evidence then must be heard, to determine whether he ought to be taken into custody; but as the present public and solemn examination is very different from that before a single magistrate; as very improper effects on the public mind may be produced by it, I wish that the court could be relieved from the embarrassing situation in which it is placed, and exempted from the necessity of giving any opinion upon the case, previously to its being acted upon by the grand jury.

It is the wish of the court, that the personal appearance of Colonel Burr could be secured without the necessity of proceeding in this inquiry. Colonel Burr rose and observed, that he denied the right of the court to hold him to bail in this stage of the proceedings; that the constitution of the United States was against it—declaring that no person shall be arrested without probable cause made out by oath or affirmation.

But if the court were embarrassed, he would relieve them by consenting to give bail; provided it should be understood that no opinion on the question even of probable cause was pronounced by the court by the circumstance of his giving bail. The CHIEF JUSTICE said, that such was the meaning of the court. Mr. Martin said, for his part, he should prefer that all the evidence should be fully gone into. Instead of fearing that public prejudice would thereby be excited against Colonel Burr, he believed it would remove all the prejudices of that sort which now prevailed.

The CHIEF JUSTICE.—As a bill would probably be sent up to the grand jury, the court wishes to declare no opinion either way. Some conversation then occurred relative to the quantum of bail; and Colonel Burr mentioned, that he would propose that the sum should be ten thousand dollars, if he should be able to find security to that amount, of which he expressed himself to be doubtful. Mr. Hay contended that fifty thousand dollars would not be too much. But the court finally accepted of the offer, made by Colonel Burr, who, after a short interval, entered into a recognizance with four sureties, to wit: Messrs. Wm.

Langburn, Thomas Taylor, John G. Gamble, and Luther Martin; himself in the sum of ten thousand dollars, and each surety in the sum of two thousand five hundred dollars, conditioned, that he would not depart without leave of the court. Mr. Martin, when offered as surety for Colonel Burr, said, that he had lands in the district of Virginia, the value of which was more than double the sum; and that he was happy to have this opportunity to give a public proof of his confidence in the honor of Colonel Burr, and of his conviction that he ■was innocent.

All further proceedings in the case were thereupon postponed until the next day. On Friday, the 29th of May, and on Monday, Tuesday, and Wednesday, the 1st,- 2d, and 3d of June, the court met and adjourned ■without taking up the case, on account of the non-arrival of General Wilkinson. On the last mentioned day the district attorney stated that he did not think it probable that General Wilkinson would .arrive for ten or twelve days, and suggested an adjournment of the grand jury .for that length of time. Finally, they were adjourned to Tuesday, the ■9 th of June. Tuesday, June 9, 1807.

The court met pursuant to adjournment, and all the grand jurors appeared. General Wilkinson not having yet arrived, after some conversation between the court and bar as to the probable time of his arrival, the grand jury were further adjourned to Thursday following. [Immediately upon the adjournment of the grand jury a question arose as to the production of certain papers by the government, and was followed by a motion for a subpoena duces tecum directed to the president of the United States, which will be found reported as Case No. 14,692d.

The argument consumed several days, and an opinion was delivered Saturday, June 13, 1807. After which] Mr. Burr called up the motion for a supplemental charge to the grand jury, in support of which he had, on yesterday, submitted a series of propositions, with citations of authorities. The CHIEF JUSTICE stated that he had drawn up a supplemental charge, which he had submitted to the attorney for the United States, with a request that it should also be put into the hands of Colonel Burr’s counsel; that Mr.

Hay had, however, informed him that he had been too much occupied to inspect the charge with attention, and deliver it to the opposite counsel; but another reason was, that there was one point in the charge which he did not fully approve. He should not, therefore, deliver his charge at present, but should reserve it until Monday.

In the meantime, Colonel Burr’s counsel could have an opportunity of inspecting it, and an argument might be held on the points which had produced an objection from the attorney for the United States. (After some conversation between the court and bar, as to whether the arguments on the supplemental charge should be submitted in writing or orally, the subject was passed over, and it appears never to have been again called up.) At the instance of the district attorney, four witnesses, viz. Thomas Truxton, William Eaton, Benjamin Stoddert, and Stephen Decatur, were sworn to testify before the grand jury.

The clerk then proceeded to call four other witnesses to the book, but when Erick Boll-man appeared, Mr. Hay addressed the court to the following effect: Before Mr. Bollman is sworn I must inform the court of a particular, and not an immaterial circumstance. He, sir, has made a full communication to the government of the plans, the designs, and views of Aaron Burr. As these communications might criminate Dr. Bollman before the grand jury, the president of the United States has communicated to me this pardon (holding it in his hands) which I have already offered to Dr. Bollman.

He received it in a very hesitating manner, and I think informed me that he knew not whether he should or should not accept it. He took it from me, however, as he informed me, to take the advice of counsel. He returned it in the same hesitating manner; he would neither positively accept nor refuse it. My own opinion is that Dr. Bollman, under these circumstances, cannot possibly criminate himself. This pardon will completely exonerate him from all the penalties of the law. I believe his evidence to be extremely material.

In the presence of this court I offer this- pardon to him, and if he refuses,- I shall deposit it with the clerk for his use. Will you (addressing himself to Dr. Bollman) accept this pardon? Dr. Bollman.—No, I will not, sir. Mr. Hay then observed that Dr. Bollman must be carried up to the grand jury with an intimation that he had been pardoned. Mr. Martin.—It has always- been Dr. Boll-man’s intention to refuse this pardon; but he has not positively refused it before, because he wished to have this opportunity of publicly rejecting it. Several other witnesses were sworn. Mr.

Martin did not suppose that the pardon was real or effectual; if he made any confessions before the grand jury, they might find an indictment against him, which would be valid, notwithstanding the pardon; that the pardon could not be effectual before it was pleaded to an indictment in open court. Mr. Hay inquired whether Dr. Bollman might not go to the grand jury. The CHIEF JUSTICE suggested that it would be better to settle the question about the validity of the pardon before.he was sent to the grand jury. Mr.

Hay.—I am anxious to introduce the evidence before the grand jury in a chronological order, and the suspension of Dr. Boll-man’s testimony will make a chasm in my arrangement. He added that, however, it was not very important whether he was sent now or some time hence to the grand jury. Mr. Martin.—Dr. Bollman is not pardoned, and no man is bound to criminate himself. The CHIEF JUSTICE required his authorities. Mr. Martin.—I am prepared to show that a party even possessed of a pardon is still indictable by the grand jury, unless he has pleaded it in court. The other witnesses were sent to the grand jury, and Dr.

Bollman was suspended. Four other witnesses were then sworn. Mr. Hay.—I again propose to send Dr. Boll-man to the grand jury. At this time the marshal entered, and Mr. Hay informed the court that the grand jury had sent for the

article of the constitution and the laws of congress relating to treason, and the law relating to the misdemeanor. Jacob Dunbaugh was sworn and sent to the grand jury. Some desultory conversation here ensued between the bar and the court respecting Dr. Bollman, when Mr. Hay addressed the opposite counsel: Are you then willing to have Dr. Bollman indicted? Take care in what an awful condition you are placing this gentleman. Mr. Martin.—Doctor Bollman, sir, has lived too long to be alarmed by such menaces.

He is a man of too much honor to trust his reputation to the course which you prescribe for him.' The CHIEF JUSTICE.—There can be no question but Dr. Bollman can go up to the jury; but the question is, whether he is pardoned or not? If the executive should refuse to pardon him, he is certainly not pardoned. Mr. Martin.—But there can be no doubt, if he chooses to decline his pardon, that he stands in the same situation with every other witness, who cannot be forced to criminate himself. Some desultory conversation here ensued, when Mr. Hay observed that he should extremely regret the loss of Dr.

Bollman’s testimony. He believed it to be material. He trusted that he should obtain it, however reluctantly given. The court would perceive, that Dr. Bollman now possessed so much zeal as even to encounter the risk of an indictment for treason. Whether he should appear before the gland jury under the circumstances of a pardon being annexed to his name, might hereafter become the object of a distinct inquiry. In the meantime he might go up without any such notification. The counsel of Mr. Burr acquiesced. The CHIEF JUSTICE.—Whether he be really pardoned or not, I cannot at present declare.

I must take time to deliberate. Mr. Hay.—Categorically then I ask you, Mr. Bollman, do you accept your pardon? Mr. Bollman.—I have already answered that question several times. I say no. I repeat, that I would have refused it before, but that I wished this opportunity of publicly declaring it. Mr. Hay.—If the grand jury have any doubts about the questions that they put to Dr. Bollman, they can apply to the court for instructions. I assert, sir, that Mr. Bollman is a pardoned man. I wish the opposite counsel to prove that he is not.

I therefore move, sir, that he be sent up to the grand jury, certified by you. that he is pardoned. I make this motion that gentlemen who wish to discuss the question may have an opportunity of adducing their arguments. Mr. Williams appeared as counsel for Dr. Bollman, and addressed the court In his behalf, insisting he was not bound to criminate or calumniate himself, although pardoned. He-claimed, however, that the pardon having been refused, the court could take no notice of it.

He also insisted that no pardon except by statute could protect a party against a criminal prosecution» as a pardon under the great seal was not effectual until it had been pleaded and allowed in court. He cited numerous-authorities in support of his positions. Mr. Martin supported the same positions. He said, another reason why Dr. Bollman had refused the pardon was. that it would be considered an admission of guilt. He did not consider a pardon necessary for an innocent man. Dr. Bollman. sir. knows what he has to fear from the prosecution of an angry government, but he will brave, it all.

The man who did so much to rescue the Marquis La Fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout Europe that he was compelled ro abandon his honor through a fear of unjust prosecution. After some remarks by Messrs. MacRae and Hay, Dr. Bollman was sent up to the grand jury without any particular notification; the questions as to the effect of the pardon tendered ro him, and how far he could be compelled to testify, being reserved for future discussion and decision, Mr.

Hay requested leave to inform the grand jury that fatigue alone had prevented General Wilkinson from attending them on that day, but that he should appear before them on Monday. The court then adjourned to Monday. Monday, June 15, 1807. The court met pursuant to adjournment. Gen. Wilkinson was sworn and sent to the grand jury, with a notification that it would facilitate their inquiries if they would examine him immediately. Mr.

Wickham reminded the court that the attorney for the United ¡States had pledged himself to send up no papers to the grand jury which had not previously passed the inspection of the court; but it had since occurred to Col. Burr's counsel that the witnesses themselves might carry up improper papers. He submitted to the court whether they ought not to instruct the grand jury to receive no papers, except through the medium of the court. Upon this motion a running debate of considerable length ensued.

Finally, the CHIEF JUSTICE remarked that he was not satisfied that a court ought to inspect the papers which form a part of a witness’s testimony before he is sent to the grand jury. He had reduced to writing an opinion to be sent to the grand jury. It instructed them not to inspect any papers, but such as formed a part of the narrative of the witness, and proved to be the papers of the person against whom an indictment was exhibited. At the instance of Mr. Hay, the instruction was so amended as to submit such papers as tend to justify the witness, but not to bear upon the accused. Mr.

Hay informed the court that the grand jury had sent for Dr. Bollman; that they wanted him to decipher, if he could, a ciphered letter annexed to Mr. Willie’s affidavit, and which he held in his hand; that Mr. Willie, the reputed secretary of Mr. Burr, would prove the identity of the paper, and Dr. Boll-man, it was expected, would interpret it. At the suggestion of Mr. Martin, the affidavit was severed from the letter. Mr. Willie appearing in court, Mr. Hay produced the ciphered letter annexed to his affidavit, and said: This is the letter which I wish to transmit to the grand jury.

It is addressed, I understand, to Dr. Bollman, under a fictitious name, and is all in the handwriting of Mr. Willie. Mr. Botts objected to its being sent up to the grand jury until both its materiality and its authenticity had been proved. Mr. Hay said that was a hard proposition, as it was written partly in ciphers and partly in German. He deemed it'material, because he understood it was either dictated by the accused, or first written by him and after-wards written by his secretary, and at his request. It was addressed to Henry Wil-boum, alias Brick Bollman. He wished it to be sent up while Dr.

Bollman was before the grand jury. After considerable sparring between counsel, Mr. Willie was called to the stand. [The argument of the question of the right to compel Willie to testify took up- the balance of the day, and will be found reported in Case No. 14,692e.] Tuesday, June 16, 1807. As soon as the court met, Mr.

Hay produced and read the following letter from the president of the United States, in answer to his letter on the subject of the subpoena duces tecum, observing, at the same time, that he read it to show the disposition of the government not to withhold any necessary papers, and that if gentlemen would specify what orders they wanted, they would be furnished without the necessity of expresses: “Washington, June 12, 1807. “Sir: Your letter of the 9th is this moment received.

Reserving the necessary right of the president of the United States to decide, independently of all other authority, what papers coming to him as president the public interest permits to be communicated, and to whom, I assurp you of my readiness under that restriction, voluntarily to furnish on all occasions whatever the purposes of justice may require. But the letter of General Wilkinson, of October 21st, requested for the defence of Colonel Burr, with every other paper relating to the charges against him, which were in my possession when the attorney general went on to Richmond in March.

I then delivered to him; and I have always taken for granted he left the whole with you. If he did, and the bundle retains the order in which I had arranged it, you will readily find the letter desired under the date of Its receipt which was November 25th; but lest the attorney general should not have left those papers with you, I this day write to him to forward this one by post. An uncertainty whether he be at Philadelphia, Wilmington, or New Castle, may produce delay in his receiving my letter, of which it is proper you should be apprised.

But as I do not recollect the whole contents of that letter, I must beg leave to devolve on you the exercise of that discretion which it would- be my right and duty to exercise, by withholding the communication of any parts of the letter which are not directly material for the purposes of justice.

With this application, which is specific, a prompt compliance is practicable; but when the request goes to copies of the orders issued in relation to Colonel Burr to the officers at Orleans and Natchez, and by the secretaries of the war and navy departments, it seems to cover a correspondence of many months, with such a variety of officers civil and military, all over the United States, as would amount to the laying open of the whole executive books. 1 have desired the secretary of war to examine his official communications, and on a view of these we may be able to judge what can and ought to be done towards a compliance with the request.

If the defendant allege that there was any particular order which, as a cause, produced any particular act on his part, then he must know what this order was, can specify it, and a prompt answer can be given. If the object had been specified, we might then have had some guide for our conjectures, as to what part of the executive records might be useful to him. But with a perfect willingness to do what is right, we are without the indications which may enable us to do it.

If the reseaiches of the secretary at war should produce anything proper for communication. and pertinent to any point we can conceive in the defence before the court, it shall be forwarded to you. I salute you with esteem and respect “Thomas Jefferson. “George Hay. Esq,” Some conversation ensued about the specification of the papers wanted from the executive. Mr. Hay stated that in his communication to the president, to which this letter was a reply, he had mentioned these papers in the terms by which he thought the opposite counsel would probably have described them.

The president, however did not deem this description sufficient. Colonel Burr’s counsel then stated that they had sent an express to Washington for these papers, with a subpoena to the president, and that it would appear on the return whether they could obtain them or not. Here a desultory conversation ensued, in which Mr. Hay insisted that Dr. Bollman was a pardoned man, and ought to communicate all he knew to the grand jury, which was denied by the other side; when Dr. Boll-man, addressing himself to the court, said: I have answered every question that was put to me by the grand jury.

The CHIEF JUSTICE inquired if there was any objection to asking Dr. Bollman if he could decipher the letter. Mr. Martin said it would be time enough to discuss that question after the letter shall have been before the grand jury. Mr. MacRae.—I wish the question now put. I asked Willie whether he understood that part of the letter which is in cipher; he could not be criminal if he did not understand it. I wish the part which is written in German now to be explained, to show that there is nothing criminal in it.

I wish Bollman to translate that part The CHIEF JUSTICE said he would prefer to proceed with the other point; how far a witness may refuse to answer a question which he thinks would criminate himself. Mr. Botts then addressed the court at some length on that point. In the course of his remarks he intimated that the letter in question had been obtained by the robbeiy of the post office, and referred to the mark “25” on its back, (which he said was the only post mark of many of the country post offices,) as evidence that it had been taken from the post office. Mr. Williams, counsel for Mr. Willie, followed Mr.

Botts in support of the position that the witness was not bound to answer any question, the answer to which he believed would tend to criminate himself. Messrs. MacRae and Hay replied at some length, after which the court adjourned. Wednesday, June 17, 1807. At the meeting of - the court Mr. Hay referred to the insinuations that had been thrown out yesterday, that the ciphered letter in question had been taken improperly if not feloniously from the post office; and said this was evidently done to affect the character of Gen. Wilkinson. He read a note which he had just received from Gen.

Wilkinson, stating that the letter was delivered to him oy Charles Patton, of the house of “Meeker, Williamson & Patton,” New Orleans. Mr. Martin then addressed the court on the question of the right of Mr. Willie to decline answering the questions propounded to him by the counsel for the prosecution. He contended that “a witness is not compelled to answer when it tends to criminate him, nor where it does not relate to the issue,” and cited authorities in support of the proposition. Mr. Wickham followed in an argument on the same side.

After some further desultory conversation, the CHIEF JUSTICE asked whether there were any other questions before the court. Mr. MacRae requested a decision on Dr. Bollman’s ease, as he wished to interrogate him about the ciphered letter. Mr. Williams said he was ready to discuss the question. Mr. Burr.—There will arise some very important questions, affecting the very source of the jurisdiction of this country. I have several affidavits to produce to show that improper means have been used to procure witnesses, and thereby contaminate the public justice.

When these proofs have been duly exhibited, it will be the province of the court to decide whether they will not arrest the progress of such improper conduct, and prevent the introduction of such evidence. Mr. Botts rose to apprise the opposite counsel that there were three or four questions of importance which the counsel for Mr. Burr should bring forward- as soon as possible.

Two or three days ago he had commented on the plunder of the post office, and he assured the counsel for the prosecution that he should probe that subject to the bottom, as no man could be more anxious than himself that the stigma which this transaction attaches to the inferior or superior officers of the government should be wiped off. CHIEF JUSTICE—Unless these allegations affected some testimony that was about to be delivered, how can you introduce this subject? Mr. Burr.—The court has very properly demanded some proof of the relevancy of our proposition.

Sir. we are ready to prove the violation of the post office. We are ready to fasten it on individuals now here, and we are ready to name the post offices if the court require it, which have been thus plundered. When it comes out that evidence has been thus improperly obtained, we shall say, sir, that it is contaminated by fraud. I will name three persons who have been guilty of improper conduct, in improperly obtaining letters from the post office to be evidence against me. These are Judge Toulmln, of the Mississippi territory, John G. Jackson, a member of congress, and General Wilkinson.

Two of these persons are within the reach of this court. As well as the improper manner in which they have procured affidavits and witnesses against me, I mention these circumstances for two reasons: first, that the facts may be proved to the satisfaction of the court; and second, that the court may lay their hands on testimony thus procured. Mr. Botts.—The circumstance of the post mark proves that the post office was robbed of that letter; therefore it is not evidence.

The CHIEF JUSTICE said, let the consequences be as they may, this court cannot take cognizance of any act which has not been committed within this district. That mark is not necessarily a post mark. The court can only know the fact, in a case to which it applies, except to commit and send for trial. Mr. Hay.—Let some specific motion be made, and the evidence procured; and if there have been any crime committed, let the offenders be prosecuted according to law.

These gentlemen know the course, and I most solemnly promise to discharge the duties of my office, whether they bear against General Wilkinson, or the man at the bar. If the crime have been committed, it is not the province of the court to notice it till after an indictment has been found. Mr. Botts.—We only wish to prove and prevent a repetition and continuance of this improper mode of proceeding. The proof will affect General Wilkinson. CHIEF JUSTICE.—If it did affect General Wilkinson it could not prevent him from being a witness. Some desultory conversation here ensued, when Mr.

Burr observed that he was afraid he was not sufficiently understood, from mingling two distinct propositions together. As to the subject of the post offices, it might rest for the present; but as to the improper means employed in obtaining testimony, they were at this moment in actual operation. Some witnesses had been brought here by this practice, and it was one which ought immediately to be checked; he did not particularly level his observations against General Wilkinson.

He did not say that the attorney for the United States ought to indict, or that such a crime, if committed out of this district, was cognizable by the court, unless it be going on while the court is in session, or the cause depending; in those eases improper practices relative to crimes committed ■out of the limits of this court may be examined, and the persons committing them attached. Such practices have been since I have been recognized here, and they ought to be punished by attachment. Mr. Wirt.—I do not yet understand the gentlemen. What is the object of their motion? Mr.

Botts.—We shall hereafter make it; we have no other object by the present annunciation than to give gentlemen a timely notice of our intentions. Mr. Burr.—We have sufficient evidence on which to found our motion. What motion? demanded Mr. Hay. Mr. Burr.—I thought, sir, I had sufficiently explained my intentions. I may either move for a rule to show cause why an attachment should not issue against Judge Toulmin, John G. Jackson, and General Wilkinson, or what is sometimes, though not so frequently practiced, I may directly move for an attachment itself. Mr. MacRae.—At whose instance? Mr. Burr.—At the public’s. Mr.

MacRae.—A pretty proceeding, indeed! that the public prosecution should thus be taken out of the hands of the public prosecutor, and that the. accused should supersede the attorney for the United States! Mr..Burr.—A strange remark indeed! As if it were not the business of the injured person .himself to institute the complaint. Mr. Hay.—I wish for further explanation. Let the specific charge on which their motion is founded be clearly pointed out and reduced to writing. Mr.

Burr.—The motion will be for dn attachment for the irregular examination of witnesses, practicing on their fears, forcing them to come to this place, and transporting them from New Orleans to Norfolk. At this, moment Mr. Randolph entered the court, and observed that if he had been present he would have himself opened this motion. which was intended to operate immediately upon General Wilkinson, and ultimate-ly upon some other persons. Mr. Randolph here read the motion which he would have submitted to the court. Mr.

Hay protested against this proceeding, which, he said, was calculated to interrupt the course of the prosecution, and was lev-elled at General Wilkinson alone. After some further remarks from Mr. Hay and from Messrs. Randolph and Martin— Mr. Hay said he should move to postpone the motion of the gentlemen till the prosecution was over, because it would necessarily interrupt the business before the court, because it was intended to impeach the credit of a witness, and because this inquiry could as well be conducted after as before the prosecution. Mr. WTiokham replied to Mr. Hay.

He said; among other things, that General Wilkinson had brought witnesses with him from New Orleans by military force. He had taken their depositions entirely ex parte at the point of the bayonet, for the purpose of keeping their testimony straight. He would lay down the broad proposition that the man who goes about collecting affidavits upon affidavits in relation to a matter to be investigated in this court corrupts the fountains of justice. We have already seen a volume of such at this bar. He particularly referred to Mr.

Jackson, who comes here with the depositions of witnesses who are thus bound hand and foot, thus tongue-tied, because their depositions had been taken. He had seen them in this very court examining witnesses with affidavits in their hands, and comparing the one with the other; depositions taken not by commissions, but ex parte.

When an interested agent thus goes about collecting depositions. and with ignorant men shaping them just as he pleases, he acts contrary to law and to the spirit and genius of our government; and such acts are a contempt of this court, if done during the prosecution, by interfering with the purposes of justice. Such men are liable to attachment from the very moment that the government took possession of Colonel Burr’s person; not from the moment of first arrest, but from the time when they ordered Perkins to conduct his prisoner from Fredericksburg to Richmond.

It was necessary to institute this proceeding now to prevent the repetition of such practices during the progress of the trial. At the conclusion of Mr. Wickham’s remarks The CHIEF JUSTICE said that the pend-ency of the prosecution was no objection to hearing the motion, but it- was another question whether therb were any grounds for it or nof, and that the court would not say that a motion relating to the justice of the case ought not to be heard. The court then adjourned. [Thursday, June 18, 1807. As soon as the court met, the CHIEF JUSTICE delivered an opinion in the case of Willie.

This will be found, reported as Casé No. 14,092e. After the delivery of such opinion] Mr. Williams (counsel for Mr. Willie) stated that he had misunderstood him the other day in court, and in a subsequent conversation had obtained more accurate information. He does understand a part of that letter. Mr. Hay requested that Mr. Willie should be called into court. When he appeared Mr. Hay interrogated him. Do you understand the contents of that letter? Answer. No. Mr. Willie afterwards said that he understood the part of the letter which is written in Dutch. Mr.

Hay.—Was this letter written by the hand or the direction of Aaron Burr? Mr. Wickham objected to the question. The CHIEF JUSTICE.—The witness and his counsel will consult. Mr. Hay repeated the question. Mr. Willie. Yes. Mr. Hay. Which? by his hand or his direction? Mr. Willie. By his direction. It was copied from a paper written by himself. Mr. Hay.—I wish this paper to be carried to the grand jury. I presume there can be no objection. Mr! Botts.—No objection! We call upon you to show the materiality of that letter. Mr. Hay.—I deny the necessity of any such thing.

Until this letter be deciphered it will be perfectly unintelligible to me and to the grand jury. It is no more than a blank piece of paper. Mr. Wickham.—I had always understood before that the testimony which is laid before a grand jury must not only be legal in itself, but proved to be material. Mr. Williams begged leave to interrupt the gentleman. Mr. Willie is anxious to be particularly understood. He says that this ciphered letter was first written by Colonel Burr, and afterwards copied. But it is the cipher only which has been copied from Colonel Burr’s original. ■ Mr. Hay.—It is quite sufficient, sir.

If Colonel Burr wrote the ciphered part, he will be considered the author of the whole. Mr. Wickham.—The gentleman has stated a curious proposition indeed! I had always understood before that the whole included the part; but it seems now that the

part is to comprehend the whole. After some further discussion, in which several of the counsel participated, The CHIEF JUSTICE said he had in some measure anticipated this question, and had reflected upon it; his opinion was, that a paper to go before the grand or petit jury must be relevant to the case, even if its materiality were not proved. Why send this paper before the- grand jury, if it cannot be deciphered? If it can be deciphered before the grand jury, why not before the court? Let it, then, be deciphered, and its relevancy may at once be established. Mr. Hay then requested Dr.

Bollman to be called, that he might be interrogated as to its contents; but before he appeared, Mr. John Randolph entered at the head of the grand jury, and addressed the court as follows: May it please the court: One of the witnesses under examination before the grand jury has answered certain questions touching a letter in ciphers. 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?

The CHIEF JUSTICE then remarked that as the letter was wanted by the grand jury,, a witness having referred to it, that was sufficient to establish its relevancy, and directed it to be delivered to them. Mr. MacRae 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 hoped that they would 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 retired and the court adjourned. Friday, June ID, 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. [Motion was then made for an attachment against General Wilkinson “for a contempt in obstructing the administration of the justice of this court,” the argument on which occupied the balance of the day. Case No. 14,692f.] Saturday, June 20, 1807.

The court met according to adjournment.. Present, the same judges as yesterday. Mr. Randolph rose to proceed with his motion, when -he was interrupted by Mr. Hay, who spoke to this effect: I have a communication to make to the court, and to the counsel of the accused. The court will recollect the answer which I received from the president, to my letter respecting certain papers. He stated in that letter that General Wilkinson’s letter of the 21st October had been delivered to Mr. Rodney, the attorney general, from whom he would endeavor to obtain it.

By the last mail I have received this letter from the president on the same subject. “Washington. June 17, 1807. “Sir: In answering your letter of the 9th, which desired a communication of one to me from General Wilkinson, specified by its date. I informed you in mine of the 12th that I had delivered it, with all other papers respecting the charges against Aaron Burr, to the attorney general when he went to Richmond; that I had supposed he had left them in your possession, but would immediately write to him, if he had noh to forward that particular letter without delay.

I wrote to him accordingly on the same day, but having no answer I know not whether he has forwarded the letter. I stated in the same letter that I had desired the secretary of war to examine his office in order to comply with your further request to furnish copies of the orders which had been given respecting Aaron Burr and his property; and. in a subsequent letter of the same day, I forwarded you copies of two letters from the secretary at war, which appeared to be within the description expressed in your letter. The order from the secretary of the navy you said you were in possession of.

The receipt of these papers has, I presume, so far anticipated, and others this day forwarded, will have substantially fulfilled the object of a subpoena from the district court of Richmond. requiring that those officers and myself should attend the court in Richmond, with the letter of General Wilkinson, the answer to that letter, and the orders of the department of war and the navy therein generally described. No answer to General Wilkinson’s letter, other than a mere acknowl-edgement of its receipt in a letter written for a different purpose, was ever written by myself or any other.

To these communications of papers I will add. that if the defendant suppose there are any facts within the knowledge of the heads of departments or of myself, which can be useful for his defence, from a desire of doing anything our situation will permit in furtherance of justice, we shall be ready to give him the benefit of it, by way of deposition through any persons whom the court shall authorize to take our testimony at this place. I know indeed that this cannot be done but by consent of parties, and I therefore authorize you to give consent on the part of the United States. Mr.

Burr’s consent will be given of course, if he suppose the testimony useful. “As to our personal attendance at Richmond, I am persuaded the court is sensible that paramount duties to the nation at large control the obligation of compliance with its summons in this case, as it would should we receive a similar one to attend the trials of Blennerhassett and others in the Mississippi territory, those instituted at St. Louis and other places on the western waters, or at any place other than the seat of government.

To comply with such calls would leave the nation without an executive branch, whose agency nevertheless is understood to be so constantly necessary that it is the sole branch which the constitution requires to be always in function. It could not, then, intend that it should be withdrawn from its station by any co-ordinate authority- “With respect to papers, there is certainly a public and private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings.

All nations have found it necessary that, for ‘the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interest will permit publication.

Hence, under our constitution. in requests of papers from the legislative to the executive branch, an exception is carefully expressed, ‘as to those which he may deem the public welfare may require not to be disclosed,’ as you will see in the inclosed resolution of the house of representatives. which produced the message of January 22d, respecting this case.

The respect mutually due between the constituted authorities in their official intercourse, as well as sincere dispositions to do for every one what is just, will always insure from the executive, in exercising the duty of discrimination confided to him, the same candor and integrity to which the nation has, in like manner, trusted in the disposal of its judiciary authorities. Considering you as the organ for communicating these sentiments to the court, I address them to you for that purpose, and salute you with esteem and respect. Thos.

Jefferson.” Accompanying this letter is a copy of the resolution of the house of representatives containing the exception to which the president refers. I have also received a letter from Mr. Smith, the secretary of the navy, containing an authentic copy of the order which was wanted, precisely corresponding with the unauthenticated copy in my possession. Mr. Wickham.—I presume that these must be considered and noted as the return to the “subpoena duces tecum.” Mr. Hay.—So far as they go. When we receive General Wilkinson’s, the return will be complete.

I. have also received a letter from the secretary of war, which- contains all the orders of his department relative to Aaron Burr. AH which papers I shall deposit with the clerk of this court. The following is the order of the navy department: - “I certify that the annexed is a true copy from the records in the office of the department of the navy of the United States of the letter from the secretary of the navy to Captain John Shaw, dated 20th December, 1806.

In faith whereof, I, Robert Smith, secretary of the navy of the United States of America, have signed these presents, and caused the seal of my office to be affixed hereto, at the city of Washington, this 17th day of June, Anno Domini 1807, and in the 31'styearof the independence of the said stales. “(Registered,) Rt. Smith,’’ “Secretary of the Navy. “C-h. W. Goldsborough, “Ch. Clk., N.

D.” “(Copy.) “Navy Department, 20th December, 1800. “Sir: A military expedition formed on the western waters by Colonel Burr will soon proceed down the Mississippi, and by the time you receive this letter will probably be near New Orleans. You will, by all the means in your power, aid the army and mali-tia in suppressing this enterprise. You will, with your boats, take the best position to intercept and to take, and, if necessary, to destroy, the boats descending under the command of Colonel Burr, or of any person holding an appointment, under him. There is great reliance on your vigilance and exertions.

I have the honor to be, sir, your most obedient, “(Signed) Rt. Smith. “Captain John Shaw, or the Commanding Naval Officer at New Orleans.” [Thereupon the motion for attachment was brought on and argued. The argument and opinion will be found reported as Case No. 14,692f.] On Wednesday, the 24th of June, while Mr. Botts was speaking on the motion for an attachment, the grand jury entered, when Mr. John Randolph, their foreman, addressed the court, and stated that they had agreed upon several indictments, which he handed in at the clerk’s table.

The clerk then read-the endorsements upon them as follows: “An indictment against Aaron Burr for treason. A true bill.” “An indictment against Aaron Burr for a misdemeanor. A true bill.” “An indictment against Herman Blannerhasset for treason. A true bill.” “An indictment against Herman Blannerhassett for a misdemeanor. A true bill.” The foreman then stated that the grand jury had still other subjects for their consideration, and had adjourned themselves to meet to-morrow at ten o’clock. After Mr. Botts had concluded his argument, Mr.

Burr addressed the court, and observed that as bills had been found against him, it was probable the public prosecutors would move his commitment. He would, however, suggest two ideas for the consideration of the court: the one was, that it is within their discretion to bail in certain cases, even when the punishment was death; and the other was, that it'was expedient for the court to exercise their discretion in this instance, as he should prove that the indictment against him had been obtained by perjury. Mr. Hay moved for the commitment of Aaron Burr. He stated that if the court had power to bail by the 33d

section of the judicial act, it was only to be exercised according to their sound discretion, and that the prisoner was not to demand bail as a matter of right. Mr. Martin said the counsel for the prosecution had admitted the right of the court to give bail according to its discretion. Mr. MacRae did not understand from the judicial act that the discretion was to be exercised at this stage of the business, but only at the time of making the arrest. After some further remarks by Messrs. Martin, Wirt, and Wickham, the CHIEF JUSTICE said: Mr.

Martin, have you any precedents where a court has bailed for treason, after the finding of a grand jury, on either of these grounds; that the testimony laid before the grand jury had been impeached for perjury, or that other testimony had been laid before the court, which had not been in possession of the grand jury? Mr. Martin said that he had not anticipated this case, and had not, therefore, prepared his authorities; but he had no doubt that such existed. Mr. Burr said, if the court have no discretion, it is unneces

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