Virginia to obtain such a subpœna upon a mere application to the clerk. The motion must be brought before the court itself.

Mr. HAY said, that he would say nothing on this subject, until he understood the object of the application: that if it were to obtain the letter which was not formerly furnished, he would inform the opposite counsel, that he had it now among his papers, and was ready to produce it.

Mr. BURR.-That is one object of the application. Another is, to obtain a certain communication from general Eaton to the president of the United States, which is mentioned in his deposition.

Mr. HAY said, that he was not certain, whether he had that communication, but believed that it was among his papers. If it were there, he would certainly produce it.

Mr. BURR.-But if, after a search, the gentleman find that he has not that paper, will he consent out of court, to issue a subpoena to the president of the United States, under the qualification I have mentioned? I wish not at the present exigency, to derange the affairs of the government, or to demand the presence of the executive officers at this place. All that I want, are certain papers.

Mr. HAY said, that he could not consent to it; he would rather that a regular application should be made for it to the

court.

Mr. BURR.-Then, sir, I shall move for a subpoena duces tecum, to the president of the United States, directing him to attend with certain papers. This subpoena will issue as in the former instance. I shall furnish the clerk with the necessary specifica tion of the paper, which I require.

The court was then adjourned till Wednesday, twelve o'clock.

WEDNESDAY, August 5th, 1807.

The court met according to adjournment.

Present, JOHN MARSHALL, chief justice of the United States. Mr. HAY requested that the names of the witnesses might be called over, who had not appeared on Monday, and of whose arrival he was not yet informed.

The following witnesses answered to their names: Charles Willie, John Graham, Samuel Swartwout, Julien Dupiestre, P. H. M. Prevost, Israel Miller, William Eaton, George Morgan, Cyrus Jones, Simeon Poole, Dudley Woodbridge, John G. Henderson, Samuel Moxley, Ambrose D. Smith, John A. Fort, and Hugh Allen.

The names of the witnesses being called over, Mr. HAY observed, that the court would perceive that the number of the witnesses attending, was greater than it had been on Monday; that he presumed the whole of them would be here in a few days; that he had no doubt they would go into the trial during the present term; but that he could not now furnish the accused with such a list of the witnesses as was required by law; for though he knew their surnames, yet he was ignorant of the christian names of many, and their places of residence. He was not certain to what day the court might properly adjourn.

CHIEF JUSTICE. It will make no sort of difference to the court, whether it adjourn from day to day, or to a certain day.

After a short conversation between the counsel on both sides, it was agreed that a list should be furnished of the witnesses, and of their places of abode, so far as they had been ascertained; and that a postponement should take place until Friday.

Mr. HAY proposed an arrangement, as to the mode of conducting the trial, the object of which was to save time. He said, that the course pursued in Great Britain on such occasions, is for the counsel for the prosecution, to open his case and examine all his witnesses, before any thing is said on the other side; for the prisoner's counsel, afterwards, to state the case on his part; to proceed to examine his witnesses, and to make such observations upon the whole of the testimony as he should think proper; and for the counsel for the prosecution to terminate the arguments by a reply. This he said, was a convenient and expeditious method. But, in Virginia, the practice is as follows: the attorney for the United States, or for the commonwealth, states the case on the part of the prosecution, and the counsel for the accused, also makes a statement on his part; after which the evidence is gone through on both sides; beginning with the witnesses against the prisoner. This being done, the counsel for the prosecution commences the argument, is answered by the counsel for the prisoner, and then concludes the debate. Mr. Hay observed, that this mode was much more tedious than that which prevails in Great Britain; and therefore ought particularly to be avoided in conducting the trial of Aaron Burr, in which the number of counsel employed, and of witnesses to be examined, is so great; especially as other trials equally tedious are about to take place; Herman Blannerhasset being now in custody, and Jonathan Dayton, known to be in this neighbour

hood.

Mr. WICKHAM wished time to consider the subject; not being prepared to determine whether the counsel for colonel Burr, would accede to the proposal; as this was a new mode of pro

ceeding, to which they were not accustomed, they wished to consult their client, who, on this day, was not in court.

Mr. HAY said, he did not think this a matter of consent; the court ought to fix the practice.

The CHIEF JUSTICE observed, that it would be better to bring on this question on Friday; since gentlemen, in the mean time, might settle it among themselves; saying, moreover, that he should feel a difficulty in departing from the settled mode of practice in this country; though he thought the English mode better than ours. The best mode appeared to him to be this: that the case should be opened fully, by one of the gentlemen on the part of the United States; then opened fully, by one of the counsel on the other side; that the evidence should next be gone through; and the whole commented upon, by another of the gentlemen, employed by the United States; who should be answered by the rest of the attorneys for colonel Burr; and one only, of 'the counsel for the United States, should conclude the argument.

This mode was not approved of by Mr. HAY, as there were to be several trials; he feared that it would impose too much labour on the counsel for the prosecution.

Some further conversation passed, but no arrangement was determined on.

The court adjourned till Friday, twelve o'clock.

FRIDAY, August 7, 1807.

The court met according to adjournment.

Present, JOHN MARSHALL, chief justice of the United States, and CYRUS GRIFFIN, judge of the district of Virginia.

The witnesses were again called over, and several who had not been present before, appeared, and were recognised to attend until discharged by the court.

The counsel for the United States, however, not being as well prepared to go into the trial, as they expected to be, (many of their witnesses being still absent) the trial was farther postponed, and the court adjourned until Monday next, at twelve o'clock.

In the course of this day, a difficulty was suggested by major Scott, the marshal of the Virginia district, as arising out of the order of the court, by virtue of which colonel Burr had been removed from the penitentiary house, to his present lodgings. He stated, that he had been informed from good authority, that the secretary of the treasury had declared, that he would not allow his charge of seven dollars per day, for the guards employed for the safe-keeping of the prisoner; and, therefore, he might lose

that sum, which he had hitherto been advancing out of his own pocket.

The CHIEF JUSTICE declared, the firm conviction of the court, that the order, heretofore made, was legal and proper; that the payments made in pursuance thereof, would be sanctioned by the court, and ought to be allowed by the secretary of the treasury. He could not believe that the secretary would finally dis allow those items in the marshal's account. But as the officer of the court ought not to be subjected to any risk in obeying its directions; and, if the secretary should refuse to allow him a credit for the money paid, the court had no power to compel him to do so; and the situation of the marshal was such, that he dared not enter into a controversy with the secretary; the court was disposed to rescind the order, unless some arrangement could be made by colonel Burr and his counsel, for the indemnification of the marshal.

Colonel BURR declared, that an offer had already been made. on his part, to indemnify the marshal, and that he was still ready and willing to give him satisfactory security, that the money should be paid him, in case the secretary of the treasury should refuse to allow the credit.

Some desultory conversation ensued, but nothing positive was agreed upon; but it appeared to be understood, that security was to be given to major Scott, and that colonel Burr was to remain in his apartment near the Swan Tavern.

MONDAY, August 10th, 1807.

The court met according to adjournment.

After the court met, Herman Blannerhasset was brought inte

court.

The following gentlemen appeared, and were recognised. Return J. Meigs, Maurice P. Bellnap, Charles Duvall, James Taylor, Tunis Bennett Cook, Hezekiah Lewis, and G.

B. Vanhorne.

Mr. WIRT moved the court to discharge Dr. Wardlaw, one of the venire. His wife was in extreme danger, and required the assistance of a sea voyage. The vessel would sail to-morrow.

CHIEF JUSTICE.-Is the court to understand that there is no objection to this motion?

Mr. BURR.-If the remark be addressed to me, sir, I can only say, that I shall remain passive. Dr. Wardlaw was then dismissed.

Mr. MAC RAE also moved the discharge of Mr. Randolph Harrison, whose extreme indisposition was attested by a certif

Gate from Dr. Adams. Mr. Harrison was accordingly dismis sed in the same manner.

Mr. HAY moved, that Herman Blannerhasset be arraigned for treason; which,

Mr. BOTTS opposed, on the ground that he had not been furnished with a copy of the indictment three days previously. After some desultory conversation on this circumsance,

Mr. BOTTS requested that Mr. Blannerhasset be reconveyed to the penitentiary, as he was extremely indisposed, and the heat nearly overpowered him. No opposition was made, and Mr. Blannerhasset was accordingly reconducted to his prison.

At Mr. HAY's request, the panel of the jury was called over by the deputy marshal, and also at Mr. Burr's request, the list of the witnesses, whom he had subpoenaed, for the purpose of investigating the qualifications of some of the venire.

Mr. HAY read a certificate from Dr. Upshaw, stating that Mr. James Henderson is sick of a bilious fever, and incapable of attending.

Mr. MAC RAE then read a certificate from Dr. Greenhow, showing, that David Bullock, esq. one of the venire was prevented by indisposition, from discharging his duties. Mr. Bullock was accordingly excused.

The clerk informed Mr. Burr, that he was at liberty to challenge such of the venire as he might object to.

Mr. BURR begged leave to inform the jurors, who were within hearing, that a great number of them may have formed and expressed opinions about him, which might disqualify them from serving on this occasion. He expected that as they came up, they would discharge the duties of conscientious men, and candidly answer the questions put to them, and state all their objections against him.

The deputy marshal then summoned first, Hezekiah Bucky.

Mr. BOTTS. We challenge you for cause. Have you ever formed and expressed an opinion about the guilt of colonel Burr? Mr. Bucky. I have not, sir, since I have been subpoenaed. Question. Had you before?

Answer. I had formed one before in my own mind.

Mr. HAY wished, that the question of the opposite counsel could assume a more precise and definite form. If this question were proposed to this man, and to every other man of the panel, he would venture to predict, that there could not be a jury