agreement could not be made for their production, with the exception of those parts which, in the president's judgment, ought not to be disclosed.

Mr. BURR said that he would be more explicit; and asked gentlemen whether this letter had not been used against him before the grand jury.

Mr. HAY could not be certain whether they were produced before the grand jury or not. He was not as well acquainted with what passed before the grand jury as some other gentlemen were. He had a copy of the letter of the 21st of October; and he did not know that there was any part of it, to the disclosure of which he would object. He had the letter of the 12th of November 1806, which had been mentioned yesterday. He was not certain whether he had the original letter or a copy, but he had certainly seen the original. He had put it up and experienced some difficulty before finding it. Before he was certain that he had the original letter, he had got a copy of it from general Wilkinson, and he found that there was the most exact coincidence between the one and the other. He mentioned this merely as an argument to shew that the copy of the letter of the 21st of October might be relied on as equally accurate.

In order to verify this copy of that letter, Mr. Hay called Mr. Duncan, who was sworn and declared his belief that it was a true copy of the letter spoken of; (the original of which had been shewn to him by general Wilkinson;) that it was all in the handwriting of captain Walter Burling, who was an aid of general Wilkinson; that he was well acquainted with his handwriting, having often seen him write.

Mr. BOTTS asked if that were all the evidence he had to prove it to be a copy.

Mr. HAY answered that it was; and he thought it sufficient. He was ready to make oath, if required, that he could not find the original; that he had examined among his papers as well as he could; that Mr. Rodney had stated that he had sent him all the letters, but he could not find this in the packet sent him.

Mr. WICKHAM asked him whether he had reasons to believe that he had lost it.

Mr. HAY answered that he had no reason to believe that he had lost it, but that he knew not where it was; that they ought to be satisfied with the authenticity of this copy.

Mr. BOTTS said that it would be impossible to ascertain it to be an exact copy without comparing it to the original; that he hoped it would be produced; as it was, the only alternative was to VOL. II.

3 S

adjourn, in order that the gentleman might have an opportunity of examining his papers again; that they wished to have an opportunity of comparing it with the public documents; that they had a right to resort to these to defend themselves against charges exhibited by the public agents who had control over them.

CHIEF JUSTICE.-Perhaps you will be satisfied with this copy on reading it.

Mr. BOTTS.-We cannot be. The president has drawn inferences and deductions from certain parts of this letter injurious to colonel Burr; but which we say are incorrect. This renders indispensable the production of the original or an exact copy.

Mr. MARTIN suggested the propriety of adjourning, that colonel Burr and his counsel might confer together and determine whether to admit or reject this paper as evidence.

Mr. WICKHAM wished to know whether the attorney were ready to go on to the trial of general Dayton for the supposed misdemeanor.

Mr. HAY said that he wished to be candid; that he had no evidence against general Dayton, except his writing the letter to general Wilkinson, nor did he know the evidence which had been before the grand jury which induced them to find the bill against him; that they might rely on his candor, that he would dismiss the prosecution voluntarily, if he found that he had not sufficient testimony to support it.

Mr. WICKHAM urged the necessity of proceeding to trial.

Mr. HAY said that he had been so much occupied with the other business of the court that he had not had sufficient time to ascertain what evidence was against general Dayton. He could not therefore say then whether he could support the indictment for a misdemeanor or not. Perhaps he might know by to-morrow.

CHIEF JUSTICE.-The attorney must certainly judge for himself. He ought to consider whether so much of the case have not been already opened, as to enable him to determine whether there be any chance of supporting the indictment for providing and preparing the means of an expedition against the provinces of Spain. As it is evident that general Dayton was, during all the time, not at Blannerhassett's island, but in New Jersey, it may be a question how far he can be connected with those who acted on that island. I imagine that the testimony, being in possession of the attorney, will enable him to say whether there be any chance of supporting the indictment. It will be useless to the public and inconvenient to him as well as the witnesses to stay here several

ks longer unless there be some chance of a trial. The attor

ht not to be pressed to go to trial till he can ascertain the

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

Mr. MARTIN objected to this as a secret tribunal. He had never heard of such a distinction. The counsel had a right to hear them publicly without their consent. If gentlemen, said he, are willing that the court should decide on a written argument, and that the whole shall be conducted as a secret tribunal, let them speak plainly.

Mr. HAY repeated his offer, and his arguments against the injustice and impolicy of submitting the delicate and confidential parts of the letters to public inspection; but he disavowed every idea of a secret tribunal. He held such tribunals in as much contempt and execration as the opposing counsel or any other gentleman could.

Mr. Burr's counsel objected to inspecting any thing that was not also submitted to the inspection of their client.

The CHIEF JUSTICE saw no real difficulty in the case. If there were any parts of the letters confidential, then public examination would be very wrong; otherwise they ought to be read.

Mr. BOTTS said that Mr. Hay's proposition was proper with some modification; that if the gentlemen, to whom it was proposed to refer the letters, differed as to what ought to be made public and what ought not, he proposed the following arrangement (the counsel of colonel Burr to be responsible for this letter in the interim): that if they could agree on the examination of particular parts, those parts might be read; and the question whether the other parts should be excluded might be argued.

Mr. HAY said that the president wrote him, when he understood the process had been awarded, that he had reserved to himself the province of deciding what parts of the letters ought to be published, and what parts required to be kept secret; that they wished every thing to be as public as possible except those parts which were really confidential.

After some desultory remarks, the subject was waived and the decision deferred, in expectation that the counsel might come to some understanding on the subject, during the recess of the court. Some discussion took place respecting the propriety of discharging colonel Burr entirely, as he had been acquitted by the jury in the prosecution for treason. This was insisted on by his counsel, but opposed by the counsel for the United States.

Mr. HAY strenuously contended that, as he had another charge against him for treason committed at another place, the accused ought not to be discharged.

Colonel Burr's counsel insisted on his immediate discharge as to the treason, especially as it was determined to hold him to bail for the misdemeanor.

A discussion then ensued as to the place where he ought to be confined if he did not give bail: whether in the public gaol of the county or the penitentiary.

Colonel Burr was declared to be discharged from the indictment for treason. He was then bailed to answer for the misdemeanor; and major William Langbourne and Jonathan Dayton were his securities.

The following order was entered on record: "Ordered that Aaron Burr, against whom an indictment was lately depending in this court for treason, and upon which the jury, on Tuesday last, brought in a verdict of not guilty, be acquitted and discharged of the said offence, and go thereof without day. And it is ordered that the said Aaron Burr enter into a recognisance, himself in the sum of five thousand dollars, and give two or more sureties in the same sum of five thousand dollars, for the said Burr's appearance before this court to-morrow; then and there to answer an indictment against him for a misdemeanor. Whereupon the said Aaron Burr acknowledged himself to be indebted to the United States in the sum of five thousand dollars of his lands and tenements, goods and chattels to be levied and to the United States rendered. Yet upon this condition, that if the said Aaron Burr shall make his personal appearance before this court to-morrow at twelve o'clock, then and there to answer the said indictment for misdemeanor, and shall not depart thence without leave of the said court, or until discharged by due course of law, then this recognisance to be void."

The recognisance of his bail was entered in like manner.

The CHIEF JUSTICE said, that if the counsel were ready to proceed with the prosecution for the misdemeanor to-morrow the court would go on with it; and if they were not ready, the court would hear argument and consider the propriety of the motion to commit, which might be done without hearing the testimony. If the motion were decided to be proper, then the evidence could be heard. The prisoner would be remanded to custody under the civil process by which he was confined, and afterwards be brought up to this court by habeas corpus.

Mr. HAY said that he must take the affidavits of all the witnesses; but he would rather make the motion when they were all present.

Mr. WIRT hoped that the recognisance for the misdemeanor would produce no new embarrassment against the motion to commit.