CHIEF JUSTICE. Whether he be really pardoned or not, cannot, at present, declare. I must take time to deliberate.

Mr. HAY.-Categorically then I ask you, Mr. Bollman, do you accept your pardon?

Mr. BOLLMAN.I have already answered that question several times. I say no. I repeat, that I would have refused it before, but that I wished this opportunity of publicly declaring it.

Mr. HAY. If the grand jury have any doubts about the questions that they put to doctor Bollman, they can apply to the court for instructions. I assert, sir, that Mr. Bollman is a pardoned man. I wish the opposite counsel to prove that he is not. I therefore move, sir, that he be sent up to the grand jury, certified by you, that he is pardoned. I make this motion, that gentlemen, who wish to discuss the question, may have an opportunity of adducing their arguments.

Mr. WILLIAMS, counsel for Mr. Bollman.-There are three questions to be decided. 1st, Whether a witness be bound to answer any questions, which tend to criminate himself, or afford a clue to evidence for that purpose? 2d, The operation of a pardon, whether it change the question? but in this case, it having been refused, the court cannot notice it. 3d, Who is to be the judge, the witness or the court, as to the propriety of answer. ing the question?

On the first question Mr. Williams laid down the following propositions: 1st, The rule of law is, that no man shall be bound to answer any question which shall accuse himself.-1 Mac Nally's Ev. 256. 2 Haw. c. 46. 2d, He shall not be bound to answer any questions which shall accuse himself of a misdemeanor.-1 Mac Nal. 256. 3d, He shall not be called upon to calumniate himself.-1 Mac Nal. 256. 2 State Trials, 822. 1017 to 1038, Tabsborough's case. 4th, He is not to defame himself.-1 Mac Nal. 256. 258. 2 State Trials, 439. 5th, Not to answer insnaring questions.-Mac Nal. 256. 6th, To ask a man if he is a Roman catholic is not permitted.-Mac Nal. 257. 9 State Trials, 414. 2 Dougl. 593. 7th, Not bound to answer any question which tends to criminate himself.-Mac Nal. 257. 4 State Trials, 605, 606. 8th, The case of Goosely in this court, upon the trial of Reynolds; he was called as a witness, but not compelled to criminate himself, had been acquitted the day before by the grand jury. So 1 Black. Rép. 27.

As to the second question, the rule of law is the same, even if the man be pardoned. 1st, A witness, although pardoned, shall not be bound to calumniate himself, for the pardon having placed him in statu quo, no question shall be asked VOL. I.

2 B

1

him, which tends to make him contemptible, or do away the benefit of the pardon.-1 Mac Nal. 256. 2 State Trials, 822. 1035. If doctor Bollman were bound to acknowledge himself acquainted with any treason, he was guilty of a very high misdemeanor, and therefore it would do away any benefit from the pardon. But the court cannot notice a pardon, unless it be a pardon by statute: for if under great seal and accepted, yet it would be error in the court to allow it not pleaded.-2 Hawk. ch. 37, sec. 59. 64, 65. 5 Bac. 294. If party only entitled upon pleading it, then if he refuse, court cannot take notice of it. Here party refusing to accept, court must say that he is not pardoned: for until it is pleaded, party liable, is to be punished. For if he plead not guilty, the court will not allow him to plead it afterwards.-2 Hawk. ch. 37, sec. 59. Bac. 294. As to the third question, the witness must be the judge of necessity: 1st, Because he can only know what the answer is, and the bearing it will have. 2d, If the court do decide, they must know what would be the answer; and to get that from the witness would criminate himself, which I have shown he is not bound to do.

If it be objected, that by this means, no witness would give evidence against the accused, it may be answered, 1st, The refusal is upon oath, because he affirms, that to answer it would be to criminate himself. 2d, You have the same obligation on him to answer that truly, as to speak truth upon any other subject. 3d, If he perjure himself, in that, he would certainly do it to get clear of giving evidence against the accused. It is his privilege not to answer any question having that tendency. This rule is upon the following authorities: The court in a case, in 1743, in 4 State Trials, 414, note, states, to wit, "If you think it will criminate yourself, you need not answer it."-1 Mac Nal. 257-8. It is put to the witness and not to the court, because he knew what was to be the answer. If it be objected, that nothing is evidence against him, which he may say on his oath, the answer is, that it has been otherwise decided.—2 Doug. 398.

Mr. MARTIN would merely suggest a few additional authorities. Among these were 5 Bac. p. 293. 2 Hawkins, ch. 57, p. 59, 60. 65. Mr. Martin contended, that these authorities demonstrated that there were two kinds of pardons in England: one by parliament, and the other under the great seal. That the first exempted an individual from the cognisance of the court as to the particular crime for which he might stand charged; but that the latter was no bar to a judicial prosecution; and was not indeed effectual, until it had been pleaded and allowed in court. Mr. Martin also quoted an authority from Salkeld to

show, inc orroboration of Mr. Williams's position, that no witness, however exempted from the charge and necessity of criminating himself; however responsible on that account to the law; can be made to discredit himself by his own testimony. Mr. WILLIAMs also quoted another authority, to the same effect, from page 258 of Mac Nally's Evidence.

Mr. MAC REA.-It is extremely uncertain, sir, whether Mr. Bollman will or will not answer the questions, which may be propounded to him by the grand jury. If he be the very honourable man, whom these gentlemen have represented, he certainly will not refuse to answer. But if he do refuse, it can only be upon the ground, that he is really a criminal. It is not, therefore, necessary for us to determine this point at the present time. It is not necessary to decide whether doctor Bollman is or is not a pardoned man. We do sincerely hope, that he will appear in the character of an honourable man; and not refuse to answer the interrogatories of the grand jury. But if he should pursue that course, it will be then timeenough for us to bring this discussion before the court.

Mr. HAY.-The proposition which I had stated, seems to me to be so evident, as to require little argument. I consider Dr. Bollman as a pardoned man; and therefore, I desired, that the court should certify that fact for the instruction of the grand jury. Gentlemen, however, seem themselves to concede the very point for which we are contending. Why do they so much expatiate on the consequences of a pardon, if they do not consider that one has been already established? Why do they wish to screen doctor Bollman, under the plea, that he cannot be made to defame himself, unless they consider him not sufficiently secured by the possession of a pardon? As to the effect of a pardon, it is a distinct question, on which the court may hereafter instruct the grand jury. But at present, I wish the court merely to certify, that he is pardoned.

Mr. MARTIN replied, that if the gentleman had attended to his argument, he would have seen, that most of his authorities had borne upon the existence of a pardon, and not upon the effects of one.

CHIEF JUSTICE.-Have any of you authorities to show when the pardon operates?

Mr. MARTIN. Certainly from the time of pleading.

CHIEF JUSTICE.-You mistake my question: suppose the pardon to be lost, is it then valid?

Mr. MARTIN.-If it be proved, that he had pleaded it to an

indictment, I presume an exemplification of it would answer

every purpose.

As another reason, sir, why doctor Bollman has refused this pardon, permit me to say, that it would be considered as an admission of guilt. Doctor Bollman does not admit that he has been guilty. He does not consider a pardon as necessary for an innocent man. Doctor Bollman, sir, knows what he has to fear from the persecution of an angry government; but he will brave it all. The man, who did so much to rescue the marquis la Fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout Europe, that he was compelled to abandon his honour through a fear of unjust persecution.

After some desultory conversation, doctor Bollman was sent up to the grand jury without any particular notification. The questions whether he be pardoned, and of course how far he may be called upon to disclose all that he knows, are reserved for future discussion and decision.

Mr. HAY requested leave to inform the grand jury that fatigue alone had prevented general Wilkinson from attending them on that day; but that he should appear before them on Monday.

Mr. BOTTS then observed, that there was one point in the supplemental charge, which he wished to notice. In one part of the charge, the clause of the constitution, relative to treason, is quoted; which clause recognises the necessity of two witnesses to prove an overt act. In a subsequent part, there seems to be an implication that one witness to an overt act is sufficient. How was this seeming contrariety to be explained?

CHIEF JUSTICE.-Though the constitution declares that two witnesses are necessary to produce conviction, yet it may not be so strictly and absolutely necessary to authorise an indictment being found a true bill. My present impression is, that though there must be two witnesses to the general charge of treason, yet that one witness may be sufficient to prove one act, and another to prove another. Chief justice quoted the statute of Edward VI. The law books made this discrimination between a trial and an indictment.

Mr. HAY.-There is one important question worthy of our consideration. In your supplemental charge, sir, you have referred to the statute of Edward VI. But no such statute is now in force here. A general law of the Virginia legislature, passed several years ago, (in the year ) swept off all the British laws; and then they set to re-enacting such as were congenial with our form of government. But this statute was certainly in

force at the commencement of our revolution; and the question is whether, if it were in force then, it can be so considered now. Do gentlemen contend, that we are bound by a statute, which the government has not adopted?

At the close of the court, the CHIEF JUSTICE observed, that he had explained the sense, in which the words, which had been remarked on by Mr. Mac Rae, had been employed; that he had no desire that they should remain in the written opinion; that he did not perceive that they were calculated to excite any feeling, or liable to be so misunderstood; but as it was not his intention to convey the idea, that a conviction in any event, right or wrong, was wished; and as that idea had been inferred, and might hereafter be attached to them, by those who might see the opinion without the explanatory words, he had expunged them.

Some desultory conversation ensued; after which the court adjourned till Monday morning, eleven o'clock.

MONDAY, JUNE 15th, 1807.

The court met according to adjournment.

General Wilkinson was sworn and sent to the grand jury, with a notification that it would facilitate their inquiries if they would examine him immediately.*

Some discussion took place, relative to the form of the oath administered to the witnesses, before the grand jury; which at length was agreed to be proper..

memory

Mr. WICKHAM stated, that as the indictments were now pending before the grand jury, it was necessary to recal to the of the court, a circumstance which had been early suggested, that a number of improper papers might be exhibited before the grand jury, which ought to be prevented by the court; that the attorney for the United States had pledged himself to send up no papers which had not previously passed the inspection of the court: but it had since occurred to colonel Burr's counsel, that the witnesses themselves might carry up such papers, which would defeat, and render of no avail, the promise of the attorney; that it would be changing the duties of a witness, which were to give testimony, not to carry papers. Finding that nothing could be done without an application to the court, Mr. Wickham submitted to them, whether they ought not to instruct the grand jury to receive no papers, but through the medium of

the court.

* On the appearance of the general in court, it was said that his countenance was calm, dignified, and commanding; while that of colonel Burr was marked by a haughty contempt.