Mr. MAC RAE. A pretty proceeding indeed! that the public prosecution should thus be taken out of the hands of the public prosecutor, and that the accused should supersede the attorney for the United States!

Mr. BURR.-A strange remark indeed! As if it were not the business of the injured person himself to institute the complaint.

Mr. HAY. I wish for further explanation. Let the specific charge, on which their motion is founded, be clearly pointed out and reduced to writing.

Mr. BURR.-The motion will be for an attachment, for the irregular examination of witnesses, practising on their fears, forcing them to come to this place, and transporting them from New-Orleans to Norfolk.

At this moment Mr. RANDOLPH entered the court, and observed, that if he had been present, he would have, himself, opened this motion; which was intended to operate immediately upon general Wilkinson, and ultimately upon some other persons. Mr. Randolph here read the motion which he would have submitted to the court.

Mr. HAY protested against this proceeding; which was calculated to interrupt the course of the prosecution; and was levelled at general Wilkinson alone. He asked, why these hints? Why these mysterious looks of awe and terror, with which gentlemen come into this court, as if they had something to communicate which was too horrible to be told? Was Mr. Randolph (when attorney general, it is presumed he meant) ever interrupted in the midst of one prosecution, by introducing another? Do they wish to intercept general Wilkinson from going to the grand jury? Mr. Hay claimed from the court, a priority for the business of the United States. Let the present prosecution be concluded; and gentlemen may then proceed with their investigation into the conduct of general Wilkinson.

Mr. RANDOLPH.-The gentlemen, sir, will understand this subject much better to-morrow. I understood the motion was to be postponed till to-morrow; but as he asked for some intimation of our designs, I thought proper to accompany it with a few remarks. And, sir, if this affair be really so stupendous, as I conceive it to be, if it be true, [Mr. Hay exclaimed that it was not.] is it not entitled to the most serious inquiry? If this subject bear upon the present case, though it may influence the result of the trial, ought it to be suppressed? Your honour will direct me when to come out; and I assure your honour,

that it is not merely conjecture, but fact. I shall come forward with the affidavit of one of the witnessess to support our motion.

Mr. MARTIN. The gentleman is on his heroics. He will protest where? In the Argus, I suppose. He hopped up like a parched pea, to make his protest against our motion. He insists that we shall postpone it till the trial is over, and the evil is done!! The court and grand jury may be engaged in twenty different prosecutions at the same time. We shall prepare our motion, and make it to-morrow.

Mr. HAY.-I hope the court will decide not to hear it till this business is over. My protest will not have the tenth part of the effect of the attic wit of Mr. Martin. I have a great deal of feeling, but it is not such as can be excited by the elegant comparisons of that gentleman. Comparisons are always odious. This is expressive of contempt, and is viewed as it ought. Mr. Hay then expatiated at some length. He understood the object of this motion. was to affect the credibility of general Wilkinson's testimony; and in what way? He presumed that the court would not notice the pretended transactions which had been alluded to, in any other way, than as amounting to a contempt. As to any other offence against the laws of the United States, the true course would be, to proceed in the way of a presentment, or indictment in the regular way. Now, what are the principles of the law of contempt, in relation to this subject? General Wilkinson is said to have taken the depositions of certain persons in New-Orleans, and then to have brought these reluctant witnesses hither by military force. This is the only ground of the contempt against this court? But how can a contempt be committed? Either by directly insulting this court, or abusing its process, or interrupting its justice. Will it be said, that general Wilkinson's conduct comes under either of those descriptions?

Gentlemen have very often been pleased to put words into our mouths; and on one occasion, they have made us to say that general Wilkinson is the "pivot of the prosecution." And is it this very pivot which they are now attempting to remove or pare down, by this precipitate application? It is my duty to vindicate him from this unjust charge, which is as immaterial as it is unjust. Are the communications between the court and the grand jury to be thus interrupted? Is their examination to be suspended, until general Wilkinson has been put upon his trial? If these suspected transactions do amount to a contempt of this court, it is not my business, officially to notice it. It is of no consequence to them whether they prevail in their motion or not; their purpose is attained; their pompous declamation, that Wilkinson is a despot, and acted tyrannically, is intended to excite prejudice against him.

Mr. HAY then said, that he should move to postpone the mo tion of gentlemen, until the prosecution was over; for several reasons: because it would necessarily interrupt the business before the court; because it was intended to impeach the credit of a witness; and because this inquiry could be as well conducted after as before the prosecution.

Mr. MAC RAE.-I will affirm, sir, in the presence of this court, and the surrounding people, that the charge now adduced against general Wilkinson, is completely unfounded. I affirm, that no witness has been brought forcibly by general Wilkinson from New-Orleans; one individual came reluctantly escorted; who, refusing to obey the summons of the government, was regularly brought before a magistrate, for his disobedience, and dealt with according to the due course of law; and who is now in the custody of a person before this court. All the rest came as good citizens ought to have done; and the only fault which can possibly be attributed to them, if it be a fault, is, that they came in the United States vessel, in which general Wilkinson was authorised to come.

Mr. WICKHAM.-May I request the liberty, sir, of making a few remarks upon Mr. Hay's motion? Colonel Burr brought forward his motion in the simplest style possible. There was no imputation; there was no attempt to excite the public feelings. He merely stated his object in the most general terms; he ought to have been understood. The gentlemen, however, misunderstood him. They required a specification of our designs; we gave it to them in writing, and then we promised to bring forward our motion to-morrow. They still insisted upon a more particular explanation of our points; and Mr. Randolph rose and spoke to gratify them. Nothing, however, seems to please those gentlemen. They not only found fault with the motion, but the looks of Mr. Randolph. He will scarcely, however, change his face to please them. It is precisely such as God Almighty gave him.

Mr. Hay, sir, has got into parliamentary habits; and talks very fluently of the previous motion. These things are novel to me, who am a mere lawyer. On this motion, I will make but one remark. The constitution has divided the powers of the government among these great departments; the legislative, executive, and judiciary. These must be kept separate and distinct, not only in their duties, but in their practice. The legislature act upon expediency, the judiciary act upon right. The gentleman, however, seems to think himself suddenly transported to the legislative hall; and no doubt, would soon think it very convenient to hang colonel Burr. He tramples all our judiciary forms under foot; if we make a motion before the court, he soon trips up the

heels of ours with his previous motion; but he has no right to do so. And where is his doctrine to end? We certainly have the same rights which they have; and as they have moved the previous question, we move, sir, that the court shall not hear their motion. This will be ringing the changes without end: it is a new invention. It is better that we send these parliamentary distinctions to the other side of the house, where they ought for ever to remain.

Mr. Hay says, that this motion ought not to be made pendente lite, and that he ought to be tried like other people. Sir, colonel Burr ought to have the same justice meted out to him, which is meted to every other person. He stands here on the same footing, and with the same privileges, as any other citizen in his situation. I assert, that any other man would have a right to this attachment; and that the motion ought to be made pendente lite, if at all. "Why, (they loudly ask us) does he make it at this time?" "Why does he not postpone it till after the prosecution?" Why, sir, when colonel Burr is discharged, (and I hope he will shortly be so) he may not be disposed to trouble the court any further. How long this prosecution will last, no one knows: perhaps a week; perhaps longer. It is already gone so far beyond our expectations, that it is impossible to conjecture. Now, sir, may not similar contempts occur? Is it not necessary to restrain certain people, by convincing them, that such practices make them liable to punishment? But they say, that these charges are no foundation for a motion. Our object is not to inflame the public mind: facts will suffice. And what has general Wilkinson done? He has brought witnesses with him from New-Orleans, by military force. He has taken their depositions entirely ex parte at the point of the bayonet; yet there is no horror in all this, for the purpose of keeping their testimony straight! I lay down this broad position: that the man, who goes about collecting affidavits upon affidavits, corrupts the fountains of justice. We have already seen a volume of such at this bar. [Mr. Hay. Did they come from New-Orleans?] I did not say from New-Orleans. I might have particularly mentioned Mr. Jackson, who comes here with the depositions of witnesses, who are thus bound hand and foot, thus tongue-tyed, because their depositions had been taken. Sir, I saw them in this very court examining wit nesses with affidavits in their hands, and comparing the one with the other: depositions taken not by commission, but ex parte, When an interested agent thus goes about collecting depositions, and with ignorant men, shaping them just as he pleases; I aver, that they are contrary to law, and to the spirit and genius of our government; that they are a contempt upon this court, if done during the prosecution, by interfering with the purposes of justice. Such men are liable to an attachment, from the very moVOL. I. 2 H

ment when the government took possession of colonel Burr's person; not from the moment of his first arrest, but from the time when they ordered Perkins to conduct his prisoner from Fredericksburg to Richmond.

The gentleman has enumerated three species of contempt: but the enumeration is certainly imperfect. Does the gentleman know nothing of prosecutions for libels on the court or on the parties? The publication of a handbill against a party is a contempt of the court, because the administration of justice is affected by it. All acts to defeat justice, or to influence the public mind pendente lite, are, for the same reason, contempts of the court. Such contempts have been punished in Europe and in this country. I repeat it, that whoever does any act to influence the administration of justice is liable to an attachment. But they say, our object is to affect general Wilkinson. He is a competent witness, however arbitrary he may be. His credibility will be judged of from all the circumstances. Does general Wilkinson shrink from the investigation?

Mr. HAY.-You know he does not.

Mr. WICKHAM.-The attorney for the United States charges us with interrupting the prosecution. Our motion is founded on right, and we will prove its truth. He need not attend to it. If the court have not the right to grant our motion, we shall lament it. We hope the court will hear our motion to-morrow.

The CHIEF JUSTICE said, that the pendency of the prosecution was no objection to hear the motion: but it was another question, whether there were any grounds for it or not; and that the court would not say, that a motion, relating to the justice of the case, ought not to be heard.

Mr. HAY wished it postponed to a later day; and insisted, that admitting the charges were true, they could have no legal effect on the prosecution. He said, he would repeat his motion to postpone the inquiry.

Mr. MARTIN and Mr. BOTTS denied it; and after some desultory conversation, the court adjourned till to-morrow.

THURSDAY, June 18th, 1807.

As soon as the court met, the CHIEF JUSTICE delivered the following opinion, in the case of Willie:

In point of law, the question now before the court relates to the witness himself. The attorney for the United States offers a paper in cypher, which he supposes to have proceeded from a person, against whom he has preferred an indictment for high treason, and another for a misdemeanor, both of which are now before the grand jury; and produces a person, said to be the se