privilege and duty of the grand jury to judge of the credibility of witnesses. If they have doubts of the credibility of Wilkinson, they ought to inquire into, and be satisfied upon the point. They may call upon him for an explanation as to facts and circumstances, which he can afford by the production of his papers.

Mr. HAY proposed an amendment to the court's instructions; "that any paper might be exhibited which came from the accused, or any other person proved to be an accomplice of the accused, or that formed a part, or was explanatory of the witness's narrative."

Mr. MARTIN. The proposed alteration suits the gentleman's purpose. There is no paper under heaven, but what might be introduced as part of his narrative; even papers procured by breaking open letters from the post office, or seized by violence or robbery, might be so used under that general definition.

The CHIEF JUSTICE wished to send some specific instructions to the grand jury, to prevent the delay that might arise from their coming into court, when they had a particular paper before them, on which they would wish to obtain the instruction of the

court.

Mr. HAY contended, that the alteration he had suggested was proper; and quoted authority to show, that when a man was once proved to be an accomplice or connected with another, what was in proof against the other, was good proof against him: [which see hereafter].

CHIEF JUSTICE.-Is there any authority to show that papers communicated by an accomplice can be used as evidence?

Mr. HAY.-The doctrine is, that "where a man is proved to be an accomplice, his papers may be used against another." In Horne Tooke's trial, pages 86, 87, Erskine conceded, that where the prisoner's connection with a third person was proved, the letters or papers of that third person, relating to the question before the court, were testimony against him. 1 East's Crown Law, page 97.

of

Mr. WIRT added, that there was no difference between the words or writings of an accomplice as evidence; in support which he referred to the trials of Hardy, Tooke and Thelwal, [which see hereafter], and to 6th Durnford & East's Reports, p. 527, where it was solemnly determined, on the trial of William Stone, for high treason, that "a letter sent by one of the conspirators in pursuance of the common design, with a view of reaching the enemy, was evidence against all persons engaged in the same conspiracy.".

Mr. MARTIN. The cases mentioned by the gentleman are cases of treason, for a conspiracy to kill the king: it is only in such cases, where the crime consists in the imagination of the mind, "to compass the death of the king," that such testimony is admissible; but where "levying war" is the charge, the declarations or acts of third persons, however connected, cannot be admitted as evidence.

Mr. WICKHAM.-Mr. Wirt's authorities do not apply to the case of levying war. The constitution of the United States says, that no person shall be convicted except by the evidence of two witnesses, or his own confession in open court. Colonel Burr's confession out of court could not be used against him; but it seems by the doctrine of gentlemen, that the confession of others can be adduced against him.

Mr. HAY.-There are several good lawyers on the grand ju ry. Mr. Martin says it would take him a day to state what he had to say on this subject. It would take him his whole life to prove the distinction he contends for. Modern systems of evidence lay down the doctrine without the distinction. There is much absurdity in the distinction. The same rule ought to prevail in both cases. Levying war against the states, is a higher offence than compassing the death of the king. In the latter case, the declarations of third persons connected with the person accused, are admissible evidence: a fortiori they ought to be in the former case. Mr. Wickham says that confession in open court is requisite to convict. He does not understand the doctrine correctly. It is this, sir, that where a party is convicted on his confession only, it must be in open court: but where the confession itself is proved as evidence of an overt act, it must be proved by two witnesses. This discussion is an unnecessary waste of time; it may be thus prolonged at gentlemen's pleasure; but it is only proper to tell the jury to ask advice when they want it.

Mr. MARTIN thanked the gentleman for enlightening his mind; but insisted that such a construction as that contended for by him, was novel and extraordinary.

Mr. BOTTS, after some facetious remarks on the doctrine of pleas, rejoinders and rebutters, &c. as exemplified in the cause, proceeded to this effect: The declarations of persons connected in a conspiracy, are not to be received in evidence until the conspiracy itself is proved. Previously, the association and the extent of it must be proved. The association itself is not to be proved by such declarations. Such evidence is admissible under very limited restrictions. It is unreasonable and absurd for such evidence to prevail over evidence of a superior nature;

over evidence of overt acts. Neither conspiracy nor intention is war. The best evidence which the nature of the case is susceptible of, must be produced on all occasions. You make it out by such an unreasonably dangerous doctrine as this is, that where a guilty intention is once formed, it cannot be forsaken with safety; for if it be admissible evidence, a previous declaration may be proved against a man after he has repented and relinquished his criminal intentions.

Mr. HAY informed the court, that the grand jury had sent for doctor Bollman; that they wanted him to decypher, if he could, a cyphered 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 doctor Bollman, it was expected, would interpret it.

Mr. MARTIN hoped the affidavit would be severed from the letter to which it was annexed.

Mr. HAY consented; and Willie who was absent, was sent for. The CHIEF JUSTICE declared, that he did not wish to pronounce an opinion on the distinction as to the evidence in the two kinds of treason, without seeing authorities referred to. That he was inclined to think that such a distinction as was stated might exist.

Here the chief justice delivered the instruction, as amended, to the marshal, to be transmitted to the grand jury. It was not read in court.

Mr. HAY wished the expression concerning "credibility” to be struck out, as implying a doubt.

CHIEF JUSTICE. That idea was not suggested by the court; such evidence is deemed inadmissible, except for the purpose of supporting the credibility of witnesses.

Mr. HAY wished the latter clause to be altered, as the grand jury might think themselves bound to make application to the court; and that showed the impropriety of giving such instructions at all.

Mr. BOTTS.-It is indecorous to be consuming time until the grand jury shall have returned; their own excellent understanding will condemn this conduct.

Mr. HAY.-General Wilkinson is not under examination.

Mr. WICKHAM.-Gentlemen think general Wilkinson the sole patron of the cause, but there are other witnesses.

Mr. HAY.-None who are expected to have any papers. Mr. Hay again produced the cyphered letter, annexed to Willie's affidavit, (Willie appearing in court.) He then proceeded;

This is the paper which I wish to transmit to the grand jury. It is addressed, I understand, to doctor Bollman under a fictitious name, and is all in the hand writing of Mr. Willie.

Mr. BOTTS objected to its being sent up to the grand jury; that he understood that no paper was to be laid before them, that was not material to the cause, whether it could or could not be authenticated; and that gentlemen must therefore prove both its materi ality and its authenticity.

Mr. HAY.-A hard proposition indeed, when it is written partly in cyphers and partly in German! I deem it material, be cause I understand it was either dictated by the accused, or first written by him, and afterwards written by his secretary, and at his request; it is addressed to Henry Wilbourn alias Erick Bollman. I wish it to be sent up while doctor Bollman is before the grand jury.

Mr. BOTTS. Our wishes are at issue.

Mr. WIRT.-May it not be received under the instructions already sent up?

Mr. BURR. The paper is now in possession of the court; it is not to be sent up to the grand jury, but under the judgment of the courts; and of course the court must be satisfied with the materiality of the paper.

Mr. HAY.-The accused is mistaken in point of fact. The paper is in my possession. Though I considered myself bound to show it to the court according to my agreement, I have not yet delivered it, nor am I bound to deliver it.

Mr. WICKHAM.-Why was it offered to the court, if it were not to be put into their possession? If it be merely brought into court that it may be sent to the grand jury, and not considered as in possession, or under the control of the court, any paper may be conveyed to them in the same manner. Mr. Hay asserts, that it is addressed to E. Bollman. But how has it been obtained? Has it not been taken from the post-office? Has it not the post-office mark on it? Has it not been obtained by felony? He wished to see it. Mr. Hay refused to show it, and said that he would know what to do with papers hereafter. [He was understood to deny that there was any post-office mark on it; this however may be a mistake.]

Mr. WICKHAM demanded as a matter of right, that the paper should be delivered to him.

Mr. HAY.-I deny that the paper is in possession of the court, or that it was offered by me. If it were, I acted improperly. There is no precedent to justify the doctrine, that I was com

pelled to offer it. A paper offered to the court is either delivered or read. I did neither. I have a right to send any paper to the grand jury, under the directions already received by them; unless it be explained by Willie and Bollman, it will be no more than an oak leaf. I hope I shall be permitted to pursue the usual and regular course.

Mr. WICKHAM.If the paper be not before the court, I wish to know what is the question? Does he offer it to the court? [Mr. Hay. No.] How then can any notice be taken of it? How can he send it up to the jury? By the marshal? He is the officer of this court, and bound to pursue its orders. By Mr. Willie? He is but a witness and not bound to carry it. If any paper go from the prosecutor to the grand jury, it must be with the leave of the court. If a witness go up, it is because he is presumed to be a relevant witness; but if it be a paper, how can its relevancy be established, until its contents and materiality are known? If an improper paper be sent to the grand jury, the indictment may be quashed, because founded on illegal evidence. Was not the leave of the court asked? If it were, that put it in the power of the court. If it were not asked, the whole is improper and illegal. As to what they say they can prove respecting the paper, let them first prove it. When they do, the paper may be proper. Some ingenious sparrings between Messrs. WICKHAM and WIRT amused the audience a moment; when,

Mr. BOTTS objected to the transmission of the paper. It was immaterial, or it was not. If it were immaterial, why embarrass the jury with it? If it contained pertinent matter, it was certainly wicked matter, in which Mr. Willie may be himself concerned. If he be sent to the grand jury with this paper, what would he say about it? Would the court wish him to say any thing that would criminate himself? We have a right, said Mr. Botts, to see this paper. Perhaps we shall find, that it has been filched from the post-office, contrary to the eighth amendment of the constitution, which protects every man's papers from unreasonable searches and seizures. If it has been obtained by such illegal and violent means, perhaps the court would arrest it; even the grand jury would not dirty their fingers with it.

Some desultory conversation ensued, when Mr. Willie was called to the court.

Mr. WILLIAMS, his counsel, hoped that no question would be put, the answer to which might tend to criminate himself. Mr. MAC RAE. Did you copy this paper?

Mr. WILLIAMS, (after consulting with his client)-He says, that if any paper he has written have any effect on any other person, it will as much affect himself.