upon the present motion. Mr. Swartwout, who was said to be connected with colonel Burr, was discharged by them, because this affidavit did not apply to the charge of treason. Are counsel then to be suffered to produce testimony on any subject that they please? A third objection is, that general Wilkinson does not relate a single act, committed in the district of Virginia. In Virginia? no, nor any where else. The attorney for the United States says, that he will prove the overt act hereafter. But, sir, I repeat it, that the rules of evidence apply not only to the admissibility of evidence, but to the order in which it is to be produced. Let them first prove an overt act, if they can; and then they are at full liberty to prove the colour of it. Again, sir, this deposition is not the best evidence which could be produced, and which the laws require. General Wilkinson speaks of a cyphered letter, and of its contents, as well as he can make them out. Now, sir, where is this letter; and where is the key to it? Why are they not here? Why are they not produced before you? For these reasons, Mr. Wickham hoped, that the court would not suffer the affidavit to be read in evidence.

Mr. HAY.-We shall not, sir, be carried from our course by speeches, however long or animated they may be. But, sir, permit me to give those gentlemen a little information. Why talk of the affidavit before you? Do these gentlemen know, that we can positively prove the astonishment, the regret, and the denunciation which escaped from Mr. Burr, when he first heard of the publication of his cyphered letter! Let them first know what we can prove, before they abandon themselves to their triumph. General Wilkinson's affidavit is the first in the series of our proofs, and it is for this reason that we wish to commence with it.

Mr. EDMUND RANDOLPH.-Sir, we do not know what those gentlemen expect to prove; but we do object to the production of general Wilkinson's affidavit from what is already known: we know it to be perfectly inapplicable to the present question. Sir, this species of evidence is directly in the face of our bill of rights, and of the constitution of the United States. "In all cri"minal prosecutions, the accused shall enjoy the right to a speedy " and public trial, by an impartial jury of the state and district "wherein the crime shall have been committed; which district "shall have been previously ascertained by law; and to be in"formed of the nature and cause of the accusation; to be con"fronted with the witnesses against him, &c." Colonel Burr, then, sir, has a general constitutional right to be confronted with the witnesses against him. Let gentlemen show any exception to it, if they can. And what have they done? Why, they have shown here an obsolete, an evaporated affidavit, for which there

is no necessity and no law. The law positively declares, that the best evidence is always to be had; that when a witness is attainable, his affidavit is not to be admitted as testimony. We stand, therefore, sir, upon the bill of rights. Gentlemen may, indeed, attempt to evade its provisions by saying, that they can hereafter prove the material act; but I hope that this court will never countenance such illegal proceedings.

The CHIEF JUSTICE stated, that the supreme court of the United States had already decided, that an affidavit might be admitted under certain circumstances; but they had also determined, that general Wilkinson's affidavit did not contain any proof of an overt act; that he was certainly extremely willing to permit the attorney for the United States to pursue his own course in the order of drawing out his evidence, under a full confidence that he would not waste the time of the court by producing any extraneous matter; but where was the necessity of producing general Wilkinson's affidavit first? If there was no other evidence to prove the overt act, Wilkinson's affidavit goes for nothing; for so the supreme court of the United States have already decided; and by that decision he should have conceived himself bound, even if he had dissented from it. Why then produce this affidavit?

Mr. HAY observed, that there was a great difference between the course prescribed by the court, and the one which he would himself have pursued; and that he seriously believed, if he had been left to himself, he would at least have satisfied the court itself that his own course was the best. That as to general Wilkinson's affidavit, it might even now be confronted with witnesses; as Messrs. Bollman and Swartwout were present, and would say whether such and such conversations were ever held, as are detailed in this affidavit. That he was now before an examining court, and not before the petit jury: why then the same strictness of evidence now as would be required on the trial in chief? That he really believed it was the intention of the opposite counsel, by dint of long speeches, to attempt to drive him into their course: but that they ought to know he never consulted the counsel opposed to him; and that they would be the last persons in the world, whose opinions he would consult on the present occasion. That he seriously believed, that the evidence which he possessed, would, beyond the possibility of a doubt, convince the mind of the court, not only of the existence of a traitorous design, but of an overt act; and that all that he asked, was the liberty of producing this evidence in the order which he thought best. Is no part of this deposition, then, admissible? Not a word?

The CHIEF JUSTICE observed, that he thought no part of it admissible at this time; that general Wilkinson's affidavit either

contained proof of the treasonable design, which was no proof of the overt act, or it related to conversations, which, however strongly they might bear upon those who held them, did not bear upon colonel Burr.*

Mr. HAY asked, how the court was to be satisfied of the contents of any paper, before it was read to them. An affidavit might contain both the proof of the overt act, and a traitorous design. Was such a paper as this to be read under the decision of the court? or how was the court to know, whether a paper might not contain some proof of the overt act satisfactory to them, unless they had an opportunity of inspecting that paper?

Mr. WICKHAM.-These gentlemen talk of delay; and yet they would produce to this court whole masses of evidence that are perfectly irrelevant to the present question. They declare that they will not pursue our advice; and that we are the last persons whom they would take for counsellors. Sir, we do not ask them; all that we want is, that they would pursue the strict principles of law and legal evidence. One of the best rules of evidence is the order of evidence. If a man is charged with a crime, must not the deed itself exist before any testimony is produced as to the intention with which it is done? I hope that no testimony will be suffered to be introduced before the act itself shall be produced; and I call upon this court to inforce the strict order of evidence.

Mr. BURR observed, that in point of fact, it was very immaterial to him, whether this affidavit was read or not; that what he particularly wanted, was, that the great principles of evidence should be laid down, which would be equally applicable to this, and to all other affidavits. He consented that the court might have this deposition read, if they thought proper.

Mr. HAY.-This deposition will prove that it was one of Aaron Burr's objects to seize upon Mexico. Then, if we can prove by some other evidence, that this object was connected with an attack upon the United States, is not this deposition of material importance in that point of view? If both must be proved, does it make any difference which we begin with? If a conspiracy has been planned of a misdemeanor and of treason so strongly combined that they are made to go on together, and the accomplishment of the one facilitates the accomplishment of the other, is it not of material consequence to prove the misde

The chief justice observed, in a subsequent stage of this business, that an idea had since struck his mind, which he thought it material to state; that he had not recollected that these conversations were said to be held by persons who were said to be authorised by colonel Burr; and of course that their conversations would bear upon him.

meanor? I have not myself seen Mr. Taylor, or Mr. Allbright; but I am credibly informed, that they will prove an armed assemblage of men on Blannerhasset's island.

The CHIEF JUSTICE observed, that if there was no fact, or no overt act of treason before the court, the court could have nothing to say to the present motion; that if therefore, no fact was proved, the court could not grant the motion for the prosecution; that he should be extremely sorry to waste the time of the court, and to launch into a variety of irrelevant subjects, when there was actually no testimony to prove the overt act itself, and thus to give the court a competent jurisdiction over the case.

Mr. HAY.-I am bound, sir, to obey the decision of the court. However much I may lament that decision, I shall certainly acquiesce in their order. If I understand the court

The CHIEF JUSTICE said, that he was of opinion, that unless there be a fact to be proved, no testimony ought to be produced. The question before the court was not whether there had been a treasonable intent, but an overt act. That fact itself must be proved, before there can be any treason, or any commitment for treason. General Wilkinson's affidavit was, accordingly, put aside.

Mr. HAY then called Peter Taylor, who was Mr. Blannerhasset's gardener, and Jacob Allbright, a labourer, who had worked on his island, who gave their testimony. [It is omitted here, because it will be fully detailed in a subsequent and more important part of the report.] After these witnesses had been examined, the affidavit of Jacob Dunbaugh was offered, which was "taken on the fifteenth of April, 1807, before B. Cenas, a justice of the peace," to which was subjoined a certificate of governor William C. C. Claiborne, dated "at NewOrleans, the sixteenth of April, 1807," stating "that B. Cenas was a justice of the peace for the county of New-Orleans."

To the reading of this affidavit several objections were taken by the counsel for colonel Burr, but those most relied on were the following: 1st, That an affidavit could, under no circumstances, be read, unless it were shown, that the witness could not be produced, and that the government had not had sufficient time to procure the attendance of Jacob Dunbaugh. 2dly, That though the governor of New-Orleans had certified that B. Cenas was a justice of the peace, yet he had not said, that it was the same B. Cenas before whom that affidavit was taken. 3dly, That B. Cenas had not stated in the caption of his certificate, or elsewhere, that the affidavit was taken "at New-Orleans," so as to show, that he was acting within his jurisdiction.

The argument on these points was continued to the adjourn ment of the court, who took time to consider the subject till the next day.

THURSDAY, MAY 28th, 1807.

The court met according to adjournment.

LUTHER MARTIN, Esq. appeared as the counsel of colonel Burr.

On the motion made yesterday, to exclude the evidence of Jacob Dunbaugh, the CHIEF JUSTICE delivered the opinion of the court as follows:

On the part of the United States, a paper, purporting to be an affidavit, has been offered in evidence, to the reading of which two exceptions are taken:

1st, That an affidavit ought not to be admitted, where the personal attendance of the witness could have been obtained. 2dly, That this paper is not so authenticated as to entitle itself to be considered as an affidavit.

That a magistrate may commit upon affidavits has been decided in the supreme court of the United States, though not without hesitation. The presence of the witness, to be examined by the committing justice, confronted with the accused, is certainly to be desired; and ought to be obtained, unless considerable inconvenience and difficulty exist in procuring his attendance. An ex parte affidavit, shaped, perhaps, by the person pressing the prosecution, will always be viewed with some suspicion, and acted upon with some caution; but the court thought, it would be going too far to reject it altogether. If it was obvious, that the attendance of the witness was easily attainable, but, that he was intentionally kept out of the way, the question might be otherwise decided.

But the particular case before the court does not appear to be of this description. The witness. resides at a great distance; and there is no evidence, that the materiality of his testimony was known to the prosecutors or to the executive in time to have directed his attendance. It is true, that general instructions, which would apply to any individual, might have been sent, and the attendance of this, or any other material witness, obtained under those instructions; but it would be requiring too much, to say, that the omission to do this ought to exclude an affidavit. This exception, therefore, will not prevail.

The second is, that the paper is not so authenticated as to be introduced as testimony on a question, which concerns the liberty of a citizen. This objection is founded on two omissions in the certificate.

The first is, that the place at which the affidavit was taken does not appear,

VOL. I.

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