between individuals, under whatever circumstances of intimacy or confidence they may be made, except from a client to his counsel (for obvious reasons) must be revealed; that in all other cases there must be a full and unreserved disclosure of facts, however delicate their nature, and under whatever intimacy of friendship, or solemnity of promise to conceal, they may have been confided. A physician, or the most intimate friend, having come to the knowledge of facts, though under a promise of se crecy deemed sacred by the parties, must openly expose them in court. We all know that justice cannot yield to this delicacy, and that he must disclose them however confidentially communicated. I wish to know on what principle the agents of the government can be excepted from this rule, which applies to all other individuals. On what ground can this letter or any part of it be withheld?

We do believe, that those parts of the letter, which relate to those characters, are the most important in this accusation and the most necessary to our defence. We do believe, that without them the parts which the attorney is willing to expose would be of very little avail to us. We say that it is admissible evidence, and that the court must let us look at the letter and apply it to our defence; that the court should understand the defence before it should decide on the application of it. We say that the letter must be in the power of the court and of the party before the jury shall be impaneled. It has been offered to the private perusal of the counsel, in exclusion of that of their client, but which, as they feel it to be their duty, they disdain to accept. We would not care that the paper should be directed to be seen by no human eyes but those of the accused and his counsel. We want it not to gratify idle curiosity, but for the benefit of our client. We wish it to be the subject of public discussion like other documents offered as evidence. We require as a right that it should be decided according to the constitution of the court and the principles of criminal justice, whether this letter be applicable to our defence or not. I will again predict, that if a secret inquisitorial tribunal be established by your decision now, to go down with the sanction of your opinion to posterity as a precedent for other tribunals, (which is in effect to preclude us from the benefit of an appeal); if you determine that we be deprived of the benefit of important written or oral testimony, by the introduction of this state secrecy; you lay, without intending it, the foundation for a system of oppression. If these things be established, to go down to posterity as precedents, the inevitable consequences will be, that whenever any man in the United States becomes an object of the vengeance or jealousy of those in power, he may easily be ruined. A wicked executive

power will have nothing to do to effect his destruction but to foment divisions in this country, to encourage and excite accusations by its officers, to deny the use of all public documents that may tend to the justification of the accused, or to render the attainment of exculpatory evidence dependent on the arbitrary whim of its prosecuting officers, and he will be condemned to sink without the smallest effectual resistance.

I move for a rule that this cause shall stand continued till this letter shall be produced and deposited with the clerk.

Mr. M REA then addressed the court.

May it please the court. This is a motion for a continuance. I have read the affidavit of the accused on which it is founded, and the return of the attorney on the subpana duces tecum, and I have the most decided conviction on my mind, that there is no principle on which it can properly be made. The affidavit which the defendant has made is, that it is his belief that the letter which his counsel have called for may be material, not that it is material, or that he believes it to be material, in his cause. Now there is no particular ground stated or fact set forth on which this contingent belief is founded. I call it so, because he only says in his affidavit that it may be material; but it is equally possible that it may not be material. The return which has been made by the attorney shews that the letter was delivered to him on certain conditions; to be used under certain restrictions of secrecy; and that those parts of the letter which he has produced are all that can be considered as material for the defence or pertinent to the issue. The attorney for the United States has expressly declared that the parts excepted, the disclosure of which the public interest forbids, are in his judgment not only not material for the purposes of justice or the defence of the accused, but are not pertinent to the issue. The return of the attorney is clear, satisfactory and conclusive against their motion: and he refers the accuracy of it to the judgment of the court. As to the affidavit, how does this question stand? Is there any one ground on which the letter is material to his defence, or can be so considered by themselves or the court or any body else? The only question is, whether this letter, which is called for by the accused, but which he has never seen and the contents of which he cannot consequently know, is material to his defence against this accusation or not? the only proper ground on which to consider the question, whether it is material, is the affidavit which is before the court. This court cannot say that, from any thing which appears to them, it is material. He moves on this affidavit that the trial be postponed till the letter which he calls for shall be deposited with the clerk. Is this letter material by law? I beg leave to submit to the court the propriety of reading only those parts of the letter which the attorney has returned as pertinent to the issue and ma

terial to the purposes of justice; because the president of the United States has devolved on the attorney the exercise of that power which is constitutionally vested in him, to decide what is proper for him in his office of president to keep secret and what to divulge. The attorney therefore, invested with this power, is to be regarded in the same view as the president would be if he were standing here and called on to divulge the letter in question. He declares that those parts of the letter which are not yielded up, are such as in his judgment ought not to be yielded, and which the public good requires to be kept secret.

Gentlemen have been pleased to consider this question on the ground of delicacy; that on the ground of delicacy we wish to withhold certain parts of the letter. This is not the ground on which we have placed the impropriety of disclosing those parts; but the ground on which we have viewed them as improper to be made public is, that of sound policy, which may concern the interests of our country in the most important way. The motion then is, that a communication confidentially made by general Wilkinson to the president, respecting the conduct of certain persons holding places of trust and confidence, but who have not hitherto been prosecuted or even suspected, should be produced as evidence, or that the cause should be continued till it is produced. And for what purpose is this confidential communication to be disclosed? For the purpose of proving that the accused is innocent? Is there any connexion between such communication concerning third persons and the guilt or innocence of the prisoner. To me it appears to be a most capricious and unfounded demand: and if it were to be granted, it would justify an expectation that any document, however irrelevant to the cause, however inconvenient to individuals or injurious to the public the disclosure might be, must be produced and publicly exposed to gratify the whim or malice of any party under prosecution. If it be once established as a principle, that no communication, however confidential, can be secured from wanton and unnecessary public exposure, it will have a tendency to suppress such information as the government has a right to expect relative to enterprises formed or combinations meditated against the public safety. Suppose a citizen, an officer of the United States, should be placed in such a situation as to be surrounded by those who are engaged in treason or mischievous plots against the peace of the nation: suppose he were surrounded by evil disposed persons; by persons of conduct so suspicious and doubtful as to justify his apprehension that they really contemplated some plot hostile to the peace and happiness of their country: suppose he have no certain information, but only a strong suspicion of the plot which they are meditating: if he impart to the government his suspicions, would an intimation so general but so con

fidential as this be made public? Would they expose the infor mer to such danger? I beg to know, whether any other person similarly situated would have a right to call for the disclosure of such a communication, to defend himself against an accusation entirely unconnected with it? If this can be done, and if by the decision of this court it become known that any one by this virtuous information, though secretly and cautiously given, exposes his very life to danger, will it not prevent him from encountering such a hazard, and indispose even the most patriotic to make communications so liable to be publicly exposed, and so manifestly pregnant with personal danger to the informer. Does not sound policy require that any information given this way should be kept secret? Is there a single principle of justice which requires that his name should be given up? Whether the public good require that information, so given, should be kept secret or made public, is a question to be decided by the president of the United States. I should hardly suppose that this court will say that it has a right to expose any and every communication, of whatever nature the same may be, that is made to the president of the United States. The court will admit the right of the president of the United States to communicate what ought to be published, and to keep secret what ought not to be disclosed. An opinion was understood to have been given by you to this effect when the motion for the subpana duces tecum was made.

The case of Marbury v. Madison was then referred to. Mr. Lincoln the attorney-general, who at the time when the transaction happened acted as secretary of state, was called on in this case to give the court some information, about the propriety of giving which he hesitated. He seemed to believe it improper to communicate information which had been confidentially given him, and the court decided, that as to communications made to him confidentially, they would not compel him to disclose them; that if he thought any thing was communicated to him in confidence, he was not bound to disclose it. If the secretary of state may withhold information which may have been delivered to him in confidence, surely the president of the United States, if he stood now before the court as the secretary of state did in that case, could withhold such information as in his judgment the public good for bids to be disclosed. It could not be admitted, on any principles of consistency, that the secretary of state would be protected against making such disclosures, and yet that the president should be compelled to make them. I presume that the attorney may be considered as being in the place of the president, holding in a confidential manner the power which he has devolved upon him, and that therefore he may be considered as standing on precisely the same ground; that he has a right to judge of the propriety of communicating those parts of the letter which are called for VOL. II.

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by the defendant; and that as standing in this instance in the same relation to the president of the United States, he ought to be treated with the same respect that the secretary of state was, under all the circumstances of the case.

Mr. Botts says that general Wilkinson does not care about this communication; but that Mr. Hay is his guardian and thinks it ought not to be disclosed. I believe, that on this ground there was some misapprehension. I believe, that when Mr. Hay addressed the court he had not communicated with general Wilkinson, and that he must have deduced that inference from his knowledge of the letter itself and not from any declaration made by the general on the subject. His return to the writ is, that he has returned a true copy of the letter except those parts which in his opinion are not material to the purposes of justice, the defence of the accused, or pertinent to the issue about to be joined in the cause: those parts having been confidentially communicated to the president by general Wilkinson; and he shews their irrelevancy. The return itself shews most satisfactorily that these parts of the letter ought not to be divulged, as the president deems that the public good requires that the parts of the letter, thus confidentially communicated should not be disclosed. I beg to know on what principle gentlemen call for these parts to be disclosed, unless they go so far as to say that there is nothing but what ought to be disclosed. They must take this ground or none. Mr. Botts speaks much of those persons being calumniated. That question is not now before the court. Who those persons are it must be presumed is not known to the court; but it is certain that they are not before the court whoever they may be. They do not demand this letter of the court, or that it should be made public to justify or defend themselves against the charge of treason or misdemeanor, or against any calumny. Why then should the defendant demand information which relates to other persons, which has nothing to do with his case, and which, if it were before the court, would not prove him to be guilty or innocent. Can it be material? If the court do not think it material, it will never make a rule that the cause shall stand continued till the letter shall be produced. It can only be material to encourage them in uttering abuse against general Wilkinson: I can see no other use which they can make of it. If general Wilkinson have made an unjust accusation against innocent persons, I cannot see how it can be made to bear on the cause of the defendant, or used for his defence. It will not be in the power of the court to see what use the letter will be of, in vindicating the character or establishing the innocence of the defendant; and I hope the gentlemen would not wish wantonly to expose these confidential communications, without any utility to themselves while it might be injurious to the public.

Mr. Botts has said that those parts of the letter which are not pertinent to the issue, which justice does not require to be exhi