Mr. WILLIAMS.-He ought not to have such a question put to him, because he might be obliged to answer "Yes." He ought not to be compelled to answer, if it might possibly criminate him. The witness is to judge for himself, though the question may not seem to affect him. He referred to the case of young Goosely before referred to by Mr. Randolph.

Mr. BOTTS.-I will give Mr. Hay the benefit of an authority, 1 Mac Nally, 257, 258. which shows, that the possibility of crimination is sufficient to excuse the witness from answering.

Mr. WILLIAMS.-What the witness says here, tending to his own crimination, may be used as evidence against him on a prosecution. If he answer at all, he is deprived of the privilege given by the law, not to criminate one's self.

CHIEF JUSTICE.-If he be to decide upon this, it must be on oath. He asked Willie, whether his answering the question, whether he understood that letter, would criminate himself? He answered, It may in a certain case.

CHIEF JUSTICE.-I wish to consider the question until to

morrow.

Judge GRIFFIN to Mr. Williams.-The case of Goosely was not as you represented it. It was the court who knew, that the witness was one of those who robbed the mail.

Mr. HAY.-The doctrine is most pernicious and contrary to the public good.

Mr. WILLIAMS.-The public good does not require the conviction of colonel Burr so much as to dispense with the law.

It was then agreed that the point should be argued to-morrow, and colonel Burr's counsel promised to produce their authorities to show, that Willie could not be compelled to answer such questions, as might in his own opinion tend to criminate himself.

The court then adjourned till to-morrow.

TUESDAY, June 16th, 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.

VOL. I.

2 D

SIR,

Washington, June 12th, 1807.

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 assure 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 officer's civil and military, all over the United States, as would amo int to the laying open the whole executive books. I have desired the secretary at war to examine his official communications, and on a view of these we may be able to judge what can an d 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 migl it then have had some guide for our conjectures, as to what pai 't 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 researches of the secre

tary at war should produce any thing 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.

George Hay, Esqr.

TH. JEFFERSON.

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 subpœna to the president, and that it would appear on the return, whether they could obtain them or not.

The CHIEF JUSTICE recommended a certain order in the debate, and that only two counsel should speak on each side; that it would be the best course on every point of subordinate importance, for the counsel on one side to open the motion or argument, the opposite counsel to reply, and the party who opened, to close the debate, unless some new matter rendered a departure from this rule proper.

Both parties acquiesced in the propriety of this arrangement, except that Mr. Martin said, that as there was no other business before the court, there was no necessity of adhering to the rule, limiting the number of counsel to speak.

Mr. HAY hoped the rule would be observed; it would relieve himself and some other gentlemen. He then begged leave to call the attention of the court to a subject mentioned yesterday; that doctor Bollman had gone up before the grand jury. What his answers were he knew not; but he thought he ought to be sent to the grand jury with Willie, that he might interpret, and Willie could authenticate the cyphered letter; hence arose the necessity of deciding the proposition that he was a pardoned man.

Mr. BOTTS hoped, that they would not be interrupted in the discussion of the question about Willie, which they were about to begin.

Mr. HAY was willing to discuss either point first.

Here a desultory conversation ensued, in which Mr. Hay insisted that doctor Bollman was a pardoned man, and ought

to communicate all he knew to the grand jury; which was denied by the other side; when doctor Bollman, addressing himself to the court, said, I have answered every question that was put to me by the grand jury.

CHIEF JUSTICE.-Is there any obligation to ask doctor Bollman if he can decypher the letter?

Mr. MARTIN.-It will be time enough to discuss that question, after the letter shall have been before the grand jury.

Mr. MAC RAE.-I wish the question now put. I asked Willie whether he understood that part of the letter which is in cypher: 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.

CHIEF JUSTICE.-I had rather proceed with the other point now: how far a witness may refuse to answer a question, which he thinks would criminate himself.

Mr. BOTTS.-I am glad to be relieved from the necessity of showing the versatility of gentlemen, who fly from one point to another. I am sorry they should attempt to drive us from the discussion. The oblique insinuation of Mr. Hay against Willie, seeming to presuppose his guilt from his exercising the privilege of not answering the questions propounded to him, must be answered, though it is painful for me to notice such illiberal attacks. He says, that Willie acts as if he were engaged in the conspiracy. Cannot Willie have another excuse, in seeking exemption from the examination, than conscious guilt? The attorney for the United States sees every object, connected with colonel Burr, through a jaundiced medium. With him "trifles light as air, are confirmation strong as proofs of holy writ." How far he might be disposed to involve this young man, upon a confession of having copied a letter in cypher, though of harmless import, I am not prepared to say. But let Willie only commit himself, so far as to make such confession, and then be called by his business to that poor unfortunate, enslaved country Louisiana, and it may be the pretext for oppressing him most cruelly. He may be seized, thrown into a dungeon, or into the hold of a ship in the most rigorous season, and be heard of no more, unless he should have the better fortune of being transported to Washington for trial. An unfortunate ignorant man should be guarded from the penalty of suspicion. The danger to be apprehended from this source is not imaginary. We have not arrived at that part of our inquiry, which is awfully terrible, and apt to rouse the indignation of our country; we shall very soon give you an awful impression

of the miseries of that ill fated territory, under the total surrender of the civil authority to military guidance. I am driven prematurely to glance at one outrage which may serve as a sample of the wretched state in which that section of our dependencies is. A citizen of the United States, now within the hearing of my voice, in a time of profound peace, was seized in New-Orleans, and, without being charged with any offence, but merely on suspicion that he could give evidence against colonel Burr in this court, to which he was willing to come, was committed to prison without bail or mainprize; thrown into a stinking room with the common felons and negroes confined there, and only taken out at last to be transported on board of a vessel to Richmond in custody. He was hurried like a malefactor on board, without being permitted to go to his lodgings to get a shirt to put on. He was forced to yield, in the humility of abject submission, to the arbitrary will of his oppressors. Are we content to bear such enormities? A man, only suspected of being a witness, is subjected to military slavery. Shall we furnish a pretext against this stranger, now called on to implicate himself, in what are called the treason and misdemeanors of colonel Burr? It has been said, that my client and his counsel have taken much interest in this privilege. I feel interested to protect the innocence of that young man from the vengeance of illegal power. My client feels the same anxiety. He is solicitous that he alone should feel the pressure of unjust suspicion and persecution.

But how did this letter come here? Foulness and violence are betrayed in the mode of its acquisition. In the hardest and most arbitrary times in England, papers which were seized by force, were brought forward as evidence against the party from whom they were taken; but succeeding times have abhorred the doctrine; and papers found in possession of a party have been deemed the weakest of all evidence. The foulness of that very mark of 25 cents deserves execration.

Mr. HAY said, that there was no post mark.

Mr. BOTTS.-The "25" on the back, is the only post-mark of many of the country post-offices. Mr. Hay did not withhold it on that account. How came that mark there? Will the gentleman say how the paper was acquired? If the post-office was robbed, the possession of the paper was gained feloniously. The constitution has provided against the seizure of papers; and the act of congress has fixed the offence of stealing from the post-offices. The means of obtaining the paper are unconstitutional. The end cannot be sanctioned, without maintaining the means. It is impossible that this most detestable vice, of the most infamous of European courts, can have been pa