It is not for the court to anticipate the event of the present prosecution. Should it terminate as is expected on the part of the United States, all those, who are concerned in it, should certainly regret, that a paper, which the accused believed to be essential to his defence, which may, for aught that now appears, be essential, had been withheld from him. I will not say, that this circumstance would, in any degree, tarnish the reputation of the government; but I will say, that it would justly tarnish the reputation of the court, which had given its sanction to its being withheld. Might I be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him.

The propriety of requiring the answer to this letter is more questionable. It is alleged, that it most probably communicates orders showing the situation of this country with Spain, which will be important on the misdemeanor. If it contain matter not essential to the defence, and the disclosure be unpleasant to the executive, it certainly ought not to be disclosed. This is a point which will appear on the return. The demand of the orders, which have been issued, and which have been, as is alleged, published in the Natchez gazette, is by no means unusual. Such documents have often been produced in the courts of the United States, and the courts of England. If they contain matter interesting to the nation, the concealment of which is required by the public safety, that matter will appear upon the return. If they do not, and are material, they may be exhibited.

It is said, they cannot be material, because they cannot justify any unlawful resistance, which may have been employed or meditated by the accused.

Were this admitted, and were it also admitted, that such resistance would amount to treason, the orders might still be material; because, they might tend to weaken the endeavour to connect such overt act with any overt act of which this court may take cognisance. The court, however, is rather inclined to the opinion, that the subpoena, in such case, ought to be directed to the head of the department, in whose custody the orders are. The court must suppose, that the letter of the secretary of the navy, which has been stated, by the attorney for the United States, to refer the counsel for the prisoner to his legal remedy for the copies he desired, alluded to such a motion as is now made.

The affidavit on which the motion is grounded has not been

noticed. It is believed, that such a subpoena, as is asked, ought to issue, if there exist any reason for supposing, that the testimony may be material, and ought to be admitted. It is only because the subpoena is to those who administer the government of this country, that such an affidavit was required as would furnish probable cause to believe, that the testimony was desired for the real purposes of defence, and not for such as this court will for ever discountenance.

When the chief justice had concluded his opinion, Mr. MAC REA addressed the court to the following effect:

I hope, sir, that I have misunderstood an expression, which has just escaped from your honour; but the opinions of those gentlemen, who are near me, completely confirm my own conceptions. Your honour has declared, if I mistake not, that "if the present prosecution terminate as is wished, on the part of the United States." I hope, sir, that nothing has appeared in my conduct, nothing in the conduct of the gentlemen who are associated with me on the present occasion, and nothing in the conduct of the government, to produce such a conviction in the breast of the court. Permit me, sir, to assure this court, if we feel any sentiment at all, that it is one of a very different description. The impression which has been thus conveyed by the court, that we not only wished to have Aaron Burr accused, but that we wished to convict him, is completely abhorrent to our feelings. We trust, that it has rather accidentally fallen from the pen of your honour, than that it is your deliberate opinion. We wish for nothing, sir, but a fair and competent investigation of this case. It is far from our wishes, that Aaron Burr should be convicted, but upon the most satisfactory evidence. And let me assure this court, that nothing would more severely wound my feelings, than if you or any other man should suppose it possible, that I myself, or the gentlemen with whom I am associated, or the government which we have the honour to represent, should at all events, desire the conviction of the prisoner.

The CHIEF JUSTICE replied, that it was not his intention to insinuate, that the attornies for the prosecution, or that the administration, had ever wished the conviction of colonel Burr, whether he was guilty or innocent; that his assertion was this: "Gentlemen had so often, and so uniformly asserted, that colonel Burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject."

Mr. MAC REA begged leave to point out to the court a con

siderable difference between the opinions and wishes of the counsel for the prosecution; that from the testimony which they had examined, they thought it extremely probable, that Aaron Burr was really guilty; but that this was very different from wishing to find him guilty, or to convict him at all

events.

Mr. HAY observed, that his own conscience was satisfied with the course which he had pursued in this business; that he should attempt to secure the same sentiment by his future deportment; and, provided he enjoyed that satisfaction, he was completely indifferent to the opinion of others; and he should certainly pursue his own judgment. He asked, whether he might not send up the witnesses to the grand jury?

Mr. BURR then pressed upon the court the necessity of giv ing the supplemental charge; that it would be of considerable benefit in instructing the jury to separate what was proper in the evidence from what was improper; that if the charge was not delivered for several days, the jury might, in the mean time, be receiving very false impressions; and that their minds might be so completely involved in these impressions, that it would be impossible for them, to separate them from their decisions, even after the delivery of the charge. He conceived that the court ought either to prevent the witnesses from going to the grand jury, or to deliver its supplemental charge.

The CHIEF JUSTICE replied, that on Monday morning he would deliver the charge, if all the necessary preliminary points could be settled.

Mr. HAY then requested the clerk to swear four of the witnesses: Thomas Truxtun, William Eaton, Benjamin Stoddert, and Stephen Decatur, who were accordingly sworn.

Mr. BURR hoped, that the court would immediately take up the supplemental charge to the jury. What was the objection which the attorney for the United States has submitted to your honour, and on which you seemed to entertain some doubts?

CHIEF JUSTICE.-It is, whether the statute of Edward VI. is now in force in this country.

Mr. RANDOLPH.-We are ready on that point, sir.

The clerk then proceeded to call four other witnesses to the book; but when Erick Bollman appeared, Mr. HAY addressed the court to the following effect:

Before Mr. Bollman is sworn, I must inform the court of a particular, and not an immaterial circumstance. He, sir, has made a full communication to the government of the plans, the designs, and views of Aaron Burr. As these commu

nications might criminate doctor Bollman before the grand jury, the president of the United States has communicated to me this pardon (holding it in his hands) which I have already offered to doctor Bollman. He received it in a very hesitating manner; and I think informed me, that he knew not whether he should or should not accept it. He took it from me, however, as he informed me to take the advice of counsel. He returned it in the same hesitating manner; he would neither positively accept nor refuse it. My own opinion is, that doctor Bollman, under these circumstances, cannot possibly criminate himself. This pardon will completely exonerate him from all the penalties of the law. I believe his evidence to be extremely material. In the presence of this court, I offer this pardon to him, and if he refuses, I shall deposit it with the clerk for his use. Will you (addressing himself to doctor Bollman) accept this pardon?

Doctor BOLLMAN.-No. I will not, sir.

Mr. HAY then observed, that doctor Bollman must be carried up to the grand jury with an intimation, that he had been pardoned.

Mr. MARTIN. It has always been doctor Bollman's intention to refuse this pardon; but he has not positively refused it before, because he wished to have this opportunity of publicly rejecting it.

Several other witnesses were sworn.

Mr. MARTIN did not suppose, that the pardon was real or effectual; if he made any confessions before the grand jury, they might find an indictment against him, which would be valid, notwithstanding the pardon; that the pardon could not be effectual before it was pleaded to an indictment in open

court.

Mr. HAY inquired, whether doctor Bollman might not go to the grand jury?

The CHIEF JUSTICE suggested, that it would be better to settle the question about the validity of the pardon before he was sent to the grand jury.

Mr. HAY.-I am anxious to introduce the evidence before the grand jury in a chronological order, and the suspension of doctor Bollman's testimony will make a chasm in my arrangement. He added, that however it was not very important whether he was sent now or some time hence to the grand jury.

Mr. MARTIN.-Doctor Bollman is not pardoned; and no man is bound to criminate himself.

The CHIEF JUSTICE required his authorities.

Mr. MARTIN.-I am prepared to show, that a party even possessed of a pardon is still indictable by the grand jury, unless he has pleaded it in court.

The other witnesses were sent to the grand jury, and doctor Bollman was suspended.

Four other witnesses were then sworn.

Mr. HAY.-I again propose to send doctor Bollman to the grand jury.

At this time the marshal entered, and Mr. Hay informed the court, that the grand jury had sent for the article of the constitution and the laws of congress relating to treason, and the law relating to the misdemeanor.

Jacob Dunbaugh was sworn and sent to the grand jury.

Some desultory conversation here ensued between the bar and the court respecting doctor Bollman, when Mr. Hay addressed the opposite counsel: Are you then willing to hear doctor Bollman indicted? Take care in what an awful condition you are placing this gentleman.

Mr. MARTIN.-Doctor Bollman, sir, has lived too long to be alarmed by such menaces. He is a man of too much honour to trust his reputation to the course which you prescribe for him.

The CHIEF JUSTICE.-There can be no question but doctor Bollman can go up to the jury: but the question is, whether he is pardoned or not? If the executive should refuse to pardon him, he is certainly not pardoned.

Mr. MARTIN.-But there can be no doubt, if he chooses to decline his pardon, that he stands in the same situation with every other witness, who cannot be forced to criminate himself.

Some desultory conversation here ensued, when Mr. HAY observed, that he should extremely regret the loss of Dr. Bollman's testimony. He believed it to be material. He trusted, that he should obtain it, however reluctantly given. The court would perceive, that doctor Bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason. Whether he should appear before the grand jury, under the circumstance of a pardon being annexed to his name, might hereafter become the object of a distinct inquiry. In the mean time, he might go up without any such notification.

The counsel of Mr. Burr acquiesced.