portance than gentlemen suppose; and that the effect of their production would be to dissipate suspicions which are now entertained, and to shew that the subject of the controversy is by no means proportioned to the zeal with which it has been maintained.

Upon an affidavit made by the accused, a subpæna duces tecum has been awarded to the president of the United States, requiring the production of this letter. In consequence of this process the letter was transmitted to the attorney for the United States, accompanied with a communication from the president, authorising the attorney to exercise his discretion in the case. In the exercise of this discretion, he has selected certain parts of the letter which he has determined to withhold, because he believes them to be confidential, and therefore such as ought not to be exhibited in public.

If this might be likened to a civil case, the law is express on the subject. It is that either party may require the other to produce books or writings in their possession or power, which contain evidence pertinent to the issue. In this respect the courts of law are invested with the power of a court of chancery, and if the order be disobeyed by the plaintiff, judgment as in the case of a nonsuit may be entered against him.

Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents? If the opposite party be required to produce his books on a particular subject, it is not necessary that the entries on those books should be stated in order to entitle the applicant to his motion. He cannot be expected to make such a statement. It has always been deemed sufficient to describe the paper required, to express its general purport, and to state its materiality to the case in some degree, even when its contents are known. When a paper is in possession of one party, is completely in his power, and is required by the other, very strong reasons must be given to justify its being withheld, if it have any relation to the case. Before a court would make a decisive order in such a case it certainly ought to receive reasonable satisfaction of the probable materiality of the evidence asked for and refused, and of its relation to the pending controversy; but the information to be required must depend on the nature of the case.

Criminal cases, it is true, are not provided for; but courts will always apply the rules of evidence to criminal prosecutions so as to treat the defence with as much liberality and tenderness as the case will admit.

The prosecutor is the representative of the government, and the government acts as a party through the agency of the attorney, who directs and manages the prosecution on behalf of govern

ment. If there be a paper in the possession of the executive, which is not of an official nature, he must stand as respects that paper, in nearly the same situation with any other individual who possesses a paper which might be required for the defence. If the executive possess a paper which is really believed by the accused to be material to his defence, ought it to be withheld?

The question will recur, is it really material to his defence? The only evidence that can be received on this point is from the party himself, and he has made his affidavit to its materiality. But that is said to be insufficient; and why? Because the averment is, that the letter " may be material" in the defence. Until the course of the prosecution shall be fully developed, it may not be in the power of the accused to make a more positive averment. The importance of the letter to the defence, may depend on the testimony adduced by the prosecutor.

But there were two indictments: the one for treason and the other for a misdemeanor, and the allegation of materiality made in the affidavit may, it is said, refer to either indictment. But the prosecution for treason is terminated and was terminated before the affidavit was made. Consequently it can relate only to the indictment for a misdemeanor.

It is objected that the particular passages of the letter which are required are not pointed out. But how can this be done while the letter itself is withheld? Or how can their applicability be shewn without requiring the accused prematurely to disclose his defence?

Let it be supposed that the letter may not contain any thing respecting the person now before the court, still it may respect a witness material in the case, and become important by bearing on his testimony. Different representations may have been made by that witness, or his conduct may have been such as to affect his testimony. In various modes a paper may bear upon the case, although before the case be opened its particular application cannot be perceived by the judge.

That the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted. I cannot however on this point go the whole length for which counsel have contended. The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. I do not think precisely with the gentlemen on either side. I can readily conceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought, in such a case, to be very strong, and to be fully shewn to the court before its production

could be insisted on. I admit, that in such a case, much reliance must be placed on the declaration of the president; and I do think that a privilege does exist to withhold private letters of a certain description. The reason is this: letters to the president in his private character, are often written to him in consequence of his public character, and may relate to public concerns. Such a letter, though it be a private one, seems to partake of the character of an official paper, and to be such as ought not on light ground to be forced into public view.

Yet it is a very serious thing, if such letter should contain any information material to the defence, to withhold from the accused the power of making use of it. It is a very serious thing to proceed to trial under such circumstances. I cannot precisely lay down any general rule for such a case. Perhaps the court ought to consider the reasons, which would induce the president to refuse to exhibit such a letter as conclusive on it, unless such letter could be shewn to be absolutely necessary in the defence. The president may himself state the particular reasons which may have induced him to withhold a paper, and the court would unquestionably allow their full force to those reasons. At the same time, the court could not refuse to pay proper attention to the affidavit of the accused. But on objections being made by the president to the production of a paper, the court would not proceed further in the case without such an affidavit as would clearly shew the paper to be essential to the justice of the case. On the present occasion the court would willingly hear further testimony on the materiality of the paper required, but that is not offered.

In no case of this kind would a court be required to proceed against the president as against an ordinary individual. The objections to such a course are so strong and so obvious, that all must acknowledge them. But to induce the court to take any definitive and decisive step with respect to the prosecution, founded on the refusal of the president to exhibit a paper, for reasons stated by himself, the materiality of that paper ought to be shewn.

In this case however the president has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by himself, not by another for him. Of the weight of the reasons for and against producing it, he is himself the judge. It is their operation on his mind, not on the mind of others, which must be respected by the court. They must therefore be approved by himself, and not be the mere suggestions of another for him.

It does not even appear to the court that the president does object to the production of any part of this letter. The objection, and the reasons in support of the objection, proceed from the attorney himself, and are not understood to emanate from the

president. He submits it to the discretion of the attorney. Of course, it is to be understood that he has no objections to the production of the whole, if the attorney has not. Had the president, when he transmitted it, subjected it to certain restrictions, and stated that in his judgment the public interest required certain parts of it to be kept secret, and had accordingly male a reservation or em; all proper respect would have been paid to it: but he has made no such reservation.

As to the use to be made of the letter, it is impossible that either the court or the attorney can know in what manner it is intended to be use The declarations therefore made upon that subject can have no weight. Neither can any argument on its materiality or materiality drawn from the supposed contens of the parts in question. The only ground laid for the court to act upon, is the affidavit of the accused; and from that the court is aduced to order that the paper be produced, or the cause be continued.

In regard to the secrecy of these parts which it is stated are improver to give out to the world, the court will take any order that may be necessary. I do not think that the accused ought to be prohibited from seeing the letter: but, if it should be theaght proper, I will order that no copy of it be taken for publi: exhibition; and that no use shall be made of it but what is necessarily attached to the case. After the accused has seen it, it will yet be a question whether it shall go to the jury or not. That question cannot be decided now, because the court cannot say, whether those particular passages are of the nature which are specified. All that the court can do, is to order, that no copy shall be taken; and if it is necessary to debate it in public, those who take notes may be directed not to insert any part of the arguments on that subject. I believe myself, that a great deal of the suspicion which has been excited will be diminished by the exhibition of this paper.

Mr. HAY stated that he would consult general Wilkinson and if he consented, he would produce the letter under the restrictions ordered by the court; preferring that to a continuance of the cause.

The court ordered a jury to be summoned, and that a copy of the panel should be furnished to defendant.

On WEDNESDAY, September 9.

A jury was empanneled and sworn and the trial proceeded. The indictment consisted of seven counts. The first was as follows, viz.

Circuit Court of the United States of America, for the myth Circuit and District, Virginia.

District of Virginia, to wit:

The grand inquest of the United States of America, in for the body of the district of Virgin, now on their oath, d ́ present, that Aaron Burr, late of district of New-York, attorney at !

ty of New-York. did, on the tenth d

the United St
called Blaner

the district of V::-
this court, w

December, in the year of our Lore thousand eight Ba dred and six, within the jurisdiction to wit: at a certain island in the river Ont set's island, in the county of Wood, with ginia aforesaid, and within the jurisdiction force and arms, begin a certain military expedition, to be c ried on from thence against the dominions of oreign, de, to wit: the dominions of the king of Spain; the said d States then and there being at peace with th.dng of Spain: against the form of the statute, in such case, made and provided, to the evil example of all others, in ise cast offending, and against the peace of the said United States and thei. dig

nity.

The second count charged him with setting on for a military enterprise to be carried on against the territory of a fo igu prince, viz: the king of Spain, with whom the Uted Sta were at peace.

The third, is the same as the last, except, that the pro- ince of Mexico, is stated as the territory of the king of 5 m, against which the expedition is intended.

The fourth count, charges the defendant with pri uing de means of a military expedition against the dominions of king of Spain.

The fifth is the same as the fourth, except that Mexico 15 particularly mentioned, as the province against which the expedition is intended.

The sixth is the same as the fourth, except that the foreign territory is said to be unknown.

The seventh, charges him with setting on foot a military enterprize against the dominions of a foreign state, to the jurors unknown.

All the counts laid the offence to be committed at Blannerhasset's island, in the county of Wood, in the district of Virginia. The indictment was founded on the 5th section of the act of congress of 5th June, 1794.

In the course of the trial, the counsel of the prosecution offered in evidence declarations of Blannerhasset tending to implicate colonel Burr; and endeavoured to support it by alleging, 1st, A conspiracy between these two and others; and that