The CHIEF JUSTICE said, that he had no difficulty on the subject. He saw no incompatibility between the law and the constitution. He had no doubt that the law was still in force.

Mr. BURR had not considered the question maturely; but at present saw no inconsistency between them; however, as this law was most probably intended for the benefit of the accused, he consented to waive the right.

Mr. WIRT. But there is another consideration, sir: Can consent, take away the error? In England, in the celebrated case of Alexander Kinloch and Charles Kinloch, he consented to draw one of the jurymen, and afterwards pleaded this error in arrest of judgment. After a long and elaborate argument, the court rejected his plea, though there was a division among them.

Mr. MARTIN.-In that case, (or what is the same, Weddi. burn's case) there was but one dissentient judge.

Mr. HAY. In the case of Hardy or Tooke a question was made, whether the jury must be kept together during that long trial? Though the prisoner at the bar consented to waive that right, the court nevertheless instructed the sheriff to keep them together.

Mr. BOTTS protested against the delay and inconveniences which would ensue, from summoning the venire from Wood county.

The CHIEF JUSTICE believed that the provision was not absolutely obligatory, if both parties would waive the right; but it was as much so, if the United States insisted upon the right, as if the prisoner himself had done so. If the United States insisted upon its execution, the law must be executed, unless there were sufficient evidence to satisfy the court, that such a measure would violate the amendment to the constitution, which requires a trial to be held by an impartial jury of the state and district; unless both sides therefore consented, it was his opinion that the court was bound by this law.

Mr. HAY said, that he felt no disposition to delay the trial; but he could not think of pledging himself to such a measure without due deliberation. He would consult with the gentlemen associated with him, on this point; and would inform the court of the result.

The counsel for the prosecution then retired from the bar, and after a few minutes consultation returned. Mr. HAY informed the court, that they could not assume the responsibility of consenting to such a proposition; the law seemed to be imperative in its language, "twelve petit jurors at least shall be summoned." He must therefore request the court to direct a venire of twelve men at least, to be summoned from Wood county. 2 Y

VOL. I.

The CHIEF JUSTICE inquired what number should be summoned? Different numbers were named, and there appeared to have been a great difference in the practice. The common practice required forty-eight; and cases were cited, where not less than sixty, or seventy-two jurors had been summoned.

The court finally decided that the entry should be made for a venire of forty-eight jurors; twelve of whom, at least, were to be summoned from Wood county.

A long conversation ensued upon the time when this process was to be made returnable; or in other words, when the trial in chief was to commence. Some contended that twenty days would be sufficient to summon the venire from Wood county; others, that thirty-five would be necessary. The general opinion seemed to be in favour of an adjournment till the first Monday in August.

The CHIEF JUSTICE said that he would have preferred the shortest possible day in consideration of the expence and inconvenience which would result from the delay; unless, indeed, more important circumstances should have recommended a longer period; such as the necessity and advantage of obtaining witnesses from distant parts of the country. No time was determined upon. The decision was postponed until to-morrow. The orders were to be made out for summoning a venire, and the time of the return to be left blank and filled up to-morrow.

Mr. HAY informed the court that the clerk was doubtful whether the parties last indicted, should be brought before the court, by a capias or a summons. He should now move for a capias.

The CHIEF JUSTICE replied there could be no difficulty on the subject, for that a capias must certainly issue. The court then adjourned.

SATURDAY, June 27th, 1807..

The CHIEF JUSTICE delivered the following opinion on the motion, for an attachment against general Wilkinson:

The motion now under consideration was heard at this time, because it was alleged to be founded on a fact which might affect the justice of the case in which the court is about to be engaged, and because, while the bills were depending before the grand jury, the court might, without impeding the progress of the business, examine into the complaint which has been made.

The motion is to attach general Wilkinson for a contempt of this court, by obstructing the fair course of justice, with regard to a prosecution depending before it. In support of this charge, has been offered the testimony of Mr. Knox, who states a conversation between general Wilkinson and himself, previous to his being served with a subpœna, the object of which was to extract from him, whatever information he might possess, respect

ing the expedition which was the subject of inquiry in this court; and who states also, that he was afterwards summoned before judge Hall, who examined him upon interrogatories, and committed him to gaol, whence he was taken by order of the deputy marshal, who was a military, as well as civil offieer, and put on board the Revenge, in which general Wilkinson sailed, for the purpose of being brought from New-Orleans to Richmond.

That unfair practices towards a witness who was to give testimony in this court, or oppression under colour of its process, although those practices and that oppression were acted in another district, would be punishable in the mode now suggested, provided the person who had acted therein came within the jurisdiction of the court, is a position which the court is not disposed to controvert; but it is also believed that this mode of punishment ought not to be adopted, unless the deviation from law could be clearly attached to the person against whom the motion was made, and unless the deviation were intentional, or unless the course of judicial proceeding were or might be so affected by it, as to make a punishment in this mode obviously conducive to a fair and correct administration of justice.

The conversation which took place between general Wilkinson and the witness, on the arrival of the latte in New Orleans, was manifestly held with the intention of drawing from him any information which he might possess, relative to the expedition which was then the subject of inquiry. In this intention, there was nothing unlawful. Government and those who represent it, may justifiably and laudably use means to obtain voluntary communications, provided those means be not such as might tempt the person making them, to give an improper colouring to his representations, which might afterwards adhere to them, when repeated in court. The address stated to have been employed, the condescension and regard with which the witness was treated, are not said by himself to have been accompanied with any indications of a desire to draw from him more than the truth. The offer of money, if with a view to corrupt, could not be too severely reprehended. It is certainly a dangerous species of communication between those who are searching for testimony, and the person from whom it is expected. But in this case, the court cannot contemplate the offer as being made with immoral views. The witness had a right to demand from those he was expected to accuse, a small sum of money sufficient to subsist him on his return to his home. He was asked, whether on receiving this sum, his objections to giving testimony would be removed. This was certainly a delicate question, but it might be asked without improper motives, and it was pressed no further. This is not shown to be an attempt to contaminate the source of justice, and a consequent contempt of the court, in which it is administered.

The imprisonment of Mr. Knox, and the order for conveying him from New-Orleans to Richmond were the acts of judge Hall. Whether his proceedings were legal or illegal, they are not shown to have been influenced by general Wilkinson, and this court cannot presume such to have been the fact; general Wilkinson therefore is not responsible for them. They were founded it is true, on an affidavit made by him; but there was no impropriety in making this affidavit, and it remained with the judge to decide, what the law would authorise in the case.

All the subsequent proceedings were directed by the civil authority. The agents who executed the orders of the judge were indeed military men, who most probably would not have disobeyed the commander in chief; but that officer is not responsible, in this way, for having failed to interpose his authority, in order to prevent the execution of the orders of the judge, even if those orders ought not to have been given.

Upon a full view of the subject, the case appears to have been this. General Wilkinson was desirous that the testimony of the witness should be obtained; and aware of the accusations which had before been brought against him, for the use he had made of the military power, he was desirous of obtaining the testimony by lawful means, and therefore referred the subject to a judge of the territory, under whose orders all subsequent proceedings were taken. Whether the judge did or did not transcend the limits prescribed by law, those ministerial officers who obeyed his orders, cannot be supposed to have acted with a knowledge that he had mistaken his power. Should it be admitted that this would be no defence for them in an action to obtain compensation for the injury, yet it furnishes sufficient evidence, that no contempt was intended to this court by general Wilkinson, that he has not been guilty of any intentional abuse of its process, or of any oppression in the manner of executing it.

It is said that captain Gaines the gentleman whom the marshal appointed as his deputy for this particular purpose, had not taken the oath of office, and was therefore not legally qualified to act in that character. However correct this observation may be in itself, it does not appear to the court to justify an attachment against general Wilkinson. The person who sees in the pos session of another, a commission as deputy marshal, and sees that others are acting under that commission, ought not to be subjected to a process of contempt for having made no inquiries respecting the oath which the law requires to be taken.

The attachment will not be awarded because general Wilkinson cannot be considered as having controlled or influenced the conduct of the civil magistrate, and because in this transaction his intention appears to have been not to violate the laws. In such a case, where an attachment does not seem to be absolutely

required by the justice due to the particular individual against whom the prosecution is depending, the court is more inclined to leave the parties to the ordinary course of law, than to employ the extraordinary powers, which are given for the purpose of preserving the administration of justice in that purity which ought to be so universally desired.

The court made the following order on the postponement of the trial.

Aaron Burr, late of the city of New-York, and state of New-York, attorney at law, who stands indicted for treason, was this day brought to the bar in custody of the marshal of this district, and thereof arraigned, and pleaded, Not guilty to the indictment, and for his trial put himself upon God and the country; whereupon he is remanded to gaol. And as the trial of the said Aaron Burr cannot be had in the county of Wood, where the offence is alleged to have been committed, without great inconvenience, it is ordered, that a venire facias issue, to the marshal of this district to be directed, commanding him to summon forty-eight fit persons qualified as the law directs, twelve of whom, from the said county of Wood, to appear here on the third day of August next, as a venire for the trial of the said Burr.

The court then adjourned till Monday next.

MONDAY, 29th June.

Mr. HAY laid the following order of the executive council before the court:

IN COUNCIL, June 29th, 1807.

The board being informed that an affidavit has been filed in the circuit court of the United States, for the Virginia district, which states, that the gaol for the county of Henrico and city of Richmond is inconvenient and unhealthy, and so crowded with state offenders and debtors that there are no private apartments therein, for the reception of persons charged with offences against the laws of the United States: it is therefore advised, that the governor be requested to tender the said court, (through the federal attorney of the district of Virginia) apartments in the third story of the public gaol and penitentiary house for the reception of such persons as shall be directed under the authority of the United States to be confined therein. Extract from the Minutes.

DANIEL L. HYLTON, Clerk of the Council.

The following was the order of the court on this subject: "Which tender the court doth accept for the purpose above mentioned."