principle, resistance to the orders of the president is excusable, if they be unconstitutional and illegal. Resistance to an act of oppression, unauthorised by law, can never be criminal; and this is all we contend for.

Mr. HAY stated that he was sorry to interrupt the gentleman; but, from his argument it was evident, that the ground taken by himself, and the gentlemen associated with him in the prosecution was entirely misunderstood. He denied that he ever said that the president's orders are invariably to be observed. That such an assertion might justly be considered as incompatible with the principles of our government. Mr. Hay then explained what his argument had been; and what he meant to insist on as correct. That if information had been lodged with the president, that a dangerous conspiracy or insurrection against the government and laws, or an expedition against a nation in amity with this country, was secretly or openly forming, it was the duty of the president to issue orders to suppress the insurrection or prevent the expedition; and if he did issue such orders or precept, it would not be lawful in an individual to oppose them by force: that an act of opposition to his precept so issued, if not treason, would be at least a high misdemeanor; that such a precept was very different from an order to kill or imprison without bail or mainprize, or to raze to the ground and destroy, as gentlemen had represented the orders in question.

Mr. MARTIN appealed to the court and bystanders whether Mr. Hay's assertions or arguments had not been substantially as he had represented them, and then continued. The gentleman expressed his surprise that such doctrines should come from me, who come from Maryland to instruct and enlighten the Virginia bar. I come not to instruct or enlighten. I come to unite my feeble efforts with those of other gentlemen in defence of my friend, whom I believe to be perfectly innocent of the heavy charges against him: but their conduct evinces, that if I were to attempt it, my instructions would be in vain. If, however, I did venture to advise him, it would be, not to accuse us of evil intentions; to mix a little of the milk of human nature with his disposition and arguments; to make his conduct conformable to his professions, and not to be perpetually imputing guilt to us. But the gentleman needs no advice.

I have said, that I believed the orders and letter to be necessary. I will not examine now as to their legality; that will be discussed hereafter; but it is evident that they are material to try whether they were legal or not; and if they were resisted, whether that resistance was legal or not? The president is the proper person to apply to, because all the officers of the govern

ments are under his control. But two objections have been made, which have not yet, within my recollection, been answered: One is in the form of a question, that if this evidence came, what would be done with it? The answer is obvious: that it must be retained by the court till it is wanted. The other objection is, that there is no particular day to which the subpoena is legally returnable: the cause is not set on the docket to be tried on any particular day, and therefore, no particular day is named. But this will produce no inconvenience: in general, process is made returnable on the first day of the term. There the witness can attend as soon as it may be convenient; that is, as soon as possible after the subpoena shall have been served; and it is in the power of the court to make it returnable when they think proper. [Here Mr. Martin made a reference to the practice in Maryland, which was not distinctly understood.] I thank the court for their patience in hearing these few observations; whether time has been gained or not, the result will show.

CHIEF JUSTICE.-The affidavit speaks of an answer to general Wilkinson's letter.

Mr. BURR.-Though I am extremely well satisfied with the arguments of my counsel, as far as they have gone, yet I shall offer a few additional remarks. The counsel for the prosecution are mistaken when they say, that it would be improper to address the subpæna to the president. The public papers are not kept in the department of state, but in the separate departments according to their nature. There is no official communication between general Wilkinson, as a general or commander in chief, and the president, though there may be as governor of Louisiana. The communications from him, as general, are to the department of war. The president's letter does not show where general Wilkinson's letter is deposited. If addressed to him, it continues in his possession. His communication to congress shows that he has it. The course in congress is to apply directly to the president for any papers or documents wanted, and not to the secretaries; because they are all under his control and direction: he can order them to deliver any paper or document in their possession, and they must obey him. Mr. Burr then went more into detail, the substance of which was, that there was no evidence of the commission of treason; that the president, in his communication to congress, and in his proclamation, grounded on general Wilkinson's letter to him of the 21st of October, insinuates nothing of a treasonable nature; that in these he states, that an attack on the Spanish colonies was supposed to be intended: but if there had been any just reason for believing that treason had been committed, the president would certainly have stated it; that he had been VOL. I,

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denounced by the highest authority in the country; that this de, nunciation had created a general prejudice, against him; that the government ought to furnish all the means in its power to remove the unjust prejudices thus improperly excited against him; that he asked no privilege but what the laws conferred on every citizen. He demanded these papers, not for the purposes of detraction, as had been unjustly asserted; but to discover facts tending to prove his own innocence. He denied, in strong terms, having advised or stimulated his counsel to abuse the administration: that, on the contrary, he had charged them to avoid all irritating reflections. He concluded, by expressing his hopes, that the motion would be granted; that if the court made the order, the papers would be obtained without delay: whereas a previous application for them without such order, if unsuccessful, would produce considerable delay, which he wished very much to avoid; and that the approach of general Wilkinson required a prompt opinion of the court to prevent delay.

Mr. HAY observed, that he was much struck with the boldness of some gentlemen on a subject on which they were not correctly informed. He said, that no opportunity was lost to abuse the administration. He animadverted on the argument of Mr. Randolph the other day: That he had proclaimed loudly that some parts of the orders of the navy department had excited in his mind the most uneasy sensations. He confidently stated, that these orders were most cruel and illegal; that they were to kill and destroy colonel Burr, and burn his property wherever found. That the purpose of gentlemen was easily discerned; that Mr. Martin, in his vehement manner, talked about the hell-hounds and blood-hounds of persecution having been let loose by the president or his instrumentality, to hunt down and destroy colonel Burr. That he was sorry that gentlemen should ascribe such acts to the government as not only it had never done, but as it was incapable of doing. To silence their clamours and put an end to such declamation about cruelty and tyranny, he said, that he would produce a copy of the order from the secretary of the navy, to which all their complaints referred; that he would read it, and it would appear to be legal and proper; and that notwithstanding all the invec tives against the administration on account of it, there was no just cause of complaint against it.

The counsel of colonel Burr wished to inspect the paper before it was read. Mr. Hay offered to read it, but refused to let them examine it. They then objected to its being read, and insisted, that it was the undoubted right of counsel, in every cause, to examine all documents intended as evidence before they could be read.

Mr. HAY then observed, that their objection to its being read showed clearly their object, and was a palpable contradiction to their statement; that they used it as a mere pretext. Believing it not to be in court, they loudly demanded it as a document essential to their client, and demonstrative of oppression in the government; but the moment it is offered to be read, they object to it.

Mr. MARTIN vindicated colonel Burr from the charge of having stimulated him to make any severe reflections: that colonel Burr had, in fact, endeavoured to restrain him; but that he was urged by his own feelings to express his sentiments, contrary to the directionsof his client.

Mr. BOTTS vindicated Mr. Randolph (who was absent) from the charge preferred against him by Mr. Hay. He did not believe that Mr. Hay had intentionally misrepresented any thing; but that he was incorrect in saying, that the counsel of colonel Burr had expressed complaints without cause, and exibited charges without any evidence. We are, said Mr. Botts, in a delicate situation: great prejudices have been excited, and the popular voice is raised against us. But we hope that truth and justice will prevail. We do not wish to accuse the executive unjustly; innocence ought to be presumed until guilt appears. We have prima facie evidence of what we allege; but still we hope that the honour and character of the government will be found to be unsullied, and that all doubts respecting its conduct will be cleared up. This can be most effectually done by producing freely, without reserve or opposition, all the testimony in its power, which we demand as material to our defence. Colonel Burr wished us not to wander into charges against the administration, unless the proofs of its improper acts were indubitable, and they were clearly connected with this cause.

The CHIEF JUSTICE, after having expressed the regret of the court, at the length of time already consumed in the discussion of this motion, proposed, that no more than the usual number of counsel should speak on incidental points. That the court was unwilling to check gentlemen in their arguments, but it was hoped, that hereafter they would endeavour to avoid repetitions, and the unnecessary waste of time.

Mr. HAY again proposed to read the letter of the secretary of the navy.

CHIEF JUSTICE.-The propriety of reading depends on its authentication.

Mr. HAY-I suppose that gentlemen wish to see it, though not legally authenticated.

Mr. MARTIN expressed a doubt whether this was the same order; he presumed that there were more orders.

Mr. RANDOLPH (who had returned into court) wished to see it, in order to ascertain whether it was the same which they had seen in the Natchez gazette.

Mr. HAY declared his belief that it was the same, but as gentlemen did not wish to hear it, he put it up again.

Mr. BURR addressed the court. He observed, that this was perhaps the most proper time for renewing the motion which he had made some time ago, about giving more specific instructions to the grand jury, on certain points of evidence. These points he had reduced to writing, in the form of abstract propositions, which he would take the liberty of reading to the court: the following is a list of those propositions, with the authorities cited to support them.

First, That the grand jury cannot, consistently with their oath, find a bill, except on such testimony as would justify a petit jury to find the prisoner guilty. Foster, 232. sec. 8. 3 Institute, 25. 2 Institute, 384. Dalton, 519. Judge Wilson's Works, vol. 2. p. 364. T. W. Williams' Justice, vol. 3. printed 1794. 3 State Trials, 419, 420. and Sir John Hawles' Observations, 4 St. Tr. 133. 4 Black. 302-306. 2 Hale, chap. 8. p. 61., Wilson's edition with Wilson's note. 2 Hale, chap. 22. p. 157., with Wilson's note. Eunomos' Dict. 2d. sec. 39. p. 124, 5, 6. 5 State Tr. p. 3. Foster, p. 232. sec. 8.

Second, That no testimony or witness ought to go to the grand jury, but what is legal and competent to support the charge about which the inquiry is made. Danby's case, Leech 443. c. 187. Dodd's case, Leech, 59. c. 77. Commonwealth of Virginia v. Hopbam, Warles and Daws, before the general court at Williamsburg.

Third, That the grand jury cannot return a bill for treason, for levying war against the United States, unless they have two witnesses who swear to the overt act of the treason laid in the indictment; both which witnesses are believed by them. East's Crown Law, chap. 2. sec. 64.

That both must be believed, 3 State Trials, p. 56.

Fourth, That there must be two witnesses to the grand jury of each overt act, follows also as a consequence from the former position, that they must have such testimony as would be requisite for the petit jury.

Fifth, That the grand jury cannot find a bill for treason in consequence of any confessions made, though proved by two witnesses. Foster, 241,-3. 4 Black. Constitution of the United States, article 3. sec. 3. Graydon's Digest, 11. Judge