state of the evidence. But these considerations ought to induce him to decide as soon as possible.

Mr. HAY.-Our opinion will be much regulated by that of the court on the law. If the court will require, of the prosecutor, evidence of acts done in Virginia, I do not suppose there will be a chance of producing a conviction. But if this be not required, it appears to me that he may be connected with the people on the island so as to be convicted.

The CHIEF JUSTICE would deliver no opinion. It would be known to-morrow what course Mr. Hay would take. And the indictment against Mr. Burr was to be tried.

After some other remarks of the same kind, Mr. MARTIN expressed a desire to know whether the attorney would try Israel Smith. He wished him to be arraigned to-morrow or as soon as possible. He was anxious that his trial should take place immediately, as he was perfectly convinced of his entire innocence; and he had already sustained great inconvenience from this unfounded prosecution.

Mr. HAY said that he would go on with all the trials as soon as he could; but he could not then say how soon.

Mr. BOTTS. I have inspected the copy of the letter in question, but cannot make up my mind that it ought to be read in evidence instead of the original. But there is another matter that the court can decide now: The letter of the 12th of November, 1806, mentioned yesterday, is in possession of the attorney for the United States. An affidavit has been made, by the accused, that that letter is material to his defence. There is only one way by which we can get at it, if he persist in refusing it; and that is by a subpana duces tecum directed to Mr. Hay. If this be objected to,on account of the public situation of the prosecutor, we have the same privileges as advocates for the accused. Neither can be exempt from the operation of such process. I contend that there can be no secrets for the prosecution which ought not to be disclosed to the accused, to aid him to make his necessary defence. If I be right in this, there can be no document in possession of the counsel for the government that ought to be withheld from the accused, if deemed by his counsel important to his defence. It would seem to be too evident to be disputed, that if we had a right to summon the president of the United States to produce that letter, we should have a right to inspect it when put into the possession of the attorney; for otherwise the public functionaries would have nothing to do but to deposit with the attorney any document which they wished to conceal from public view or prevent from being used as evidence, however necessary it might be to the defence of an innocent individual, and thus defeat the

effect of any subpoena duces tecum that might issue. It ought not to depend on the judgment or discretion of the attorney. The grounds of the application might not occur as readily to him as to the court, even if he were disposed, though not obliged, to produce it. We wish it to be deposited with the clerk where all parties may have access to it.

It was suggested yesterday that this letter might contain matter of a very confidential and delicate nature, relating to characters and transactions which ought not to be exposed, because never intended to be made public. Mr. Hay went so far as to say that it might place particular individuals in a very perilous as well as a delicate situation; that in every government, confidence must be placed, on particular emergencies, which ought not to be violated. And he observed that this high military officer was obliged by his duty to make a communication to the government of great importance to its interests, and the disclosure of which might subject him to evils which he ought not to encounter. Suppose these suspicions were founded in fact, and his motives were founded in patriotism, ought the government or the officer to be fearful to disclose that communication when the storm is over and the apprehended mischief is completely averted? Is there not energy enough in the government and in truth to shield innocence and suppress lawless aggression? Suppose on the other hand that a great many characters should have been maligned and denounced one by one as they should fall in the way of that officer, will you say that they ought to be subject to this censure and calumny without having the means of justifying themselves or proving their innocence? If these accusations be never to be disclosed, how can the government know whether the charges be true or false? or how can the innocent have an opportunity of vindicating themselves? Is it true, that in the government of the United States, unprincipled defamation is to be tolerated? Is Mr. Hay to be denounced by me without the power to vindicate himself? Is a worthy individual, holding a conspicuous office, to be denounced and secretly subjected to suspicion and hatred by the malicious detraction of his bitterest enemies, without having an opportunity to justify himself? If these denunciations be just, the characters accused ought to be known and punished according to due course of law. On the contrary, if they be unjust, those gentlemen ought to be apprised of them and to know their accusers. It would be an act of the most horrible injustice in the president to shield the accuser and condemn the accused without a hearing!

But suppose I am wrong in all this; it is a principle of law that no man should be condemned without the use of documents which he has reason to believe would acquit him, especially if in possession of the accuser. Why then should these letters, deemed so essential to the protection of his innocence, be withheld from

the accused? Can there be any thing so sacred in the nature of any public document, that the liberty or life of a citizen should be sacrificed to conceal it? Is it possible that the public interest can in any case require such a sacrifice? Because it is not pretended that such a system of secrecy ought ever to be tolerated unless it be absolutely necessary for the good of the state.

I remember the time when my mind held in detestation (under a former administration) state secrecy; nor is it less abhorrent to my feelings now, when I consider how it may be employed as an instrument of persecution against innocent individuals, and how incompatible it is with a free constitution. I cannot but abominate it, in every aspect in which I can view it as well with respect to the genius of our government as to individuals. I cannot but regard it with execration.

Mr. HAY.-I have nothing to say but to express my surprise at the wonderful misapprehensions of Mr. Botts.

Mr. BURR.-The right of the accused to evidence tending to evince his innocence cannot be denied. The people of the United States, whose counsel the attorney is, can have no interest in the suppression of evidence or the destruction of individual secu rity—the inevitable consequence of state secrecy. But if a principle of state secrecy be adopted by our government, it must be strictly limited to that species of secrets which regards the public good, and not extend to secret and malignant denunciations of individuals. If secret denunciation constitute crimes according to the suggestions of malignity, no person can be secure against false accusations. If there be any man who has made secret denunciations of individual characters, he ought to be known.

Mr. HAY.-The court understands me though I am misunderstood by the gentlemen. I deny that I have the least desire to withhold from the accused any evidence or document that it would be proper to disclose. The application made by the defendant is that testimony that concerns himself should be adduced; that what tends to his own just defence and exculpation may be brought forward. Is it right that he should have more? Is it proper, fair or right that he should have the liberty of going through the whole letter, as well those parts which do not relate to him as those which do, for the purpose of making unfavourable impressions on the public mind, betraying the confidence of man in man, or of an officer in the government, making public confidential communications respecting private characters, and thereby producing controversies and violent quarrels. I wish the court to look at the letter and say whether it do not contain what ought not to be submitted to public inspection.

Much has been said by Mr. Botts and the other counsel

against keeping secret, confidential correspondence: but surely no government can exist without resorting to it on critical emergencies. We can easily suppose a case where such secrecy would not only be justifiable but indispensably necessary and highly meritorious, when every man ought to be viewed with caution by the government and its agents. An officer, holding an office of great trust, may live in a part of the country where a great number of the public functionaries may be tainted and hostile to the government; where schemes dangerous and treasonable may be meditating, which the public good and the welfare of the nation require that he should communicate to the executive, in order to avert the intended mischief. Suppose the persons implicated were spoken of in this communication in strong terms, but in terms which shew the sincerity and candor of the writer; can it be believed that the disclosure of this communication, or of the names of those persons can be connected with the just defence of the accused? Can the exposure of their names tend to establish his innocence? It surely cannot. But it must be intended for this purpose or to produce a difference between general Wilkinson and those persons. Will the court countenance or sanction so iniquitous an object? I never will be instrumental in putting into his hands any evidence or document which is not necessary for his defence, which he may pervert to the injury of others, and which does not in fact belong to that subject but to another. I do not say that he will do so; his mind may be above such petty acts; but I will notice him if he should attempt it. Suppose those gentlemen, in consequence of this communication, had sunk in the president's estimation, what is it to him? Is it a circumstance which can operate in his defence or shew his innocence?

Gentlemen may say that it will impeach general Wilkinson's character. But they have no right to bring forward against him such evidence as this. They may prove his general character and conduct; and if they can by so doing impugn his integrity, they have a right to do it; but the accused has no right to bring for ward evidence of transactions or correspondence in which he is not concerned. Let him adduce every thing which belongs to his cause, but no more: and when the court will examine it, it will see that there is not a single syllable in it that regards him. In short, the passages in the letter which it would be improper to expose, are only opinions of the writer respecting certain persons at New Orleans, which may have been since changed, and very probably have been changed.

It was said the other day that I had an affidavit of Jacob All• bright; and that there was a material variance between it and the evidence he gave before the court. Its production was insisted on. Rather than subject him to inconvenience I produced it; and after doing so no use was made of it. There was in fact no

variance; but it seemed to excite clamor. It will be so here. If I understand plain English, there is nothing in this letter from beginning to end that relates to the prisoner, or that can possibly be shewn to operate in his favour. But I shall not speak positively of the effect that may be produced by the gentleman's ingenuity, which I know to be very great. I will refer it to Mr. Wickham's candor. He may look at the letter; and I will leave it to his honour to say whether there be any thing in it that can be important to the defence of the accused.

Mr. WICKHAM would not accede to the proposition. He acted only as counsel and would hear no secret that was not communicated to his client.

Mr. HAY.-There are two passages in the letter which I cannot submit to public inspection. I do not know that they can be extorted from me under any circumstances. They are not essential to the defence of the accused. The gentlemen must know that the letter has not the most distant bearing on the subject. My present impressions are, that I would sooner submit to be committed than to betray this trust.

CHIEF JUSTICE.-We must consider the subject as if we had not seen the letter.

Mr. HAY.-These two passages have, in my conscience, no connexion whatever with the accused or his defence. They shall not be exposed to public view unless extorted by the power of the court. I do not know that even that would do; because I may submit to be put in prison. I think them irrelevant and improper to be disclosed. I shall be governed only by my own view of what is correct.

Mr. BURR. We may differ in our judgment as to the relevancy of evidence. We think this evidence applicable, and that we are entitled to it of course. As gentlemen are unwilling to read it, we can only obtain the benefit of it by the interference of the court.

Mr. WICKHAM.-As the counsel on the other side has been pleased to say that he shall only be influenced by his own judgment as to this letter, it only remains for us, after such a defiance from him, to refer to the court whether it will direct the paper to be produced. I presume this refusal must be at the instance of general Wilkinson or the government.

Mr. HAY.-You are now in the old track of misconception. I said nothing about the government or general Wilkinson. The president, who certainly has a right of withholding from public view such documents or parts of documents as in his judgment ought not to be disclosed, has expressly authorized me to keep back such parts of the letter as I may think it would be improper