clusion to be deduced from that case was contrary to what Mr. M'Rae supposed. The decision there was, that the secretary of state being the depository of the president's confidence for the public good, ought not to be compelled to disclose the communication. That there was no secret denunciation there.

The CHIEF JUSTICE said that the principle decided there was,, that communications from the president to the secretary of state could not be extorted from him.

Mr. Wickham then added, that another objection to their motion was, that this letter related to third persons, and that the only advantage the accused could take of it was, to abuse general Wilkinson. This he denied. That it was with great reluctance they attacked his character; but where his conduct merited censure it was their duty to bestow it. That to consider it in the right point of view the case was, that general Wilkinson had a great charge against his client. General Wilkinson might, from various circumstances, be implicated in the imputed offence himself; and if so, it would affect his credibility, and that it would be an inexcusable dereliction of their duty, if the counsel of colonel Burr did not urge every proper objection against the testimony adduced in support of the accusation. That gentlemen had said that these papers were not material to the defence. He observed that the materiality of testimony depended on law and fact; that it was impossible to say what the law was without a knowledge of the facts; and he asked whether the gentlemen pretended to know the facts which the accused intended to prove in vindication of himself. The degrees and circumstances of evidence that may be adduced to convince the human mind, said Mr. Wickham, are various. Some are more or less complex or simple; some more or less susceptible of confirmation or refutation, and more or less entitled to credit: as some are susceptible of easy determination depending solely on the evidence of the senses, and others of more difficult proof as connected more or less with propositions of law, the veracity of witnesses and other circumstances. For instance, whether A. was at such a place on a particular day, or whether such a day was fair or cloudy, is a plain and simple question which can be easily settled by the report of eyewitnesses: and many other questions of the same kind are susceptible of like easy solution. But there are other questions involving the consideration of legal propositions and contested acts, which cannot be so easily determined.

He does not pretend to any personal knowledge of our case; he rests upon the information of other people. Is that information correct? Is the charge true? If true, how is it to be explained? As he does not possess any knowledge of our defence, how can he say that this letter is immaterial, or that it will not

contradict other parts of the evidence of general Wilkinson and affect his general credibility?

I consider the certificate of Mr. Hay as nothing: it is only his impression that he states. He knows not the defence himself nor the manner in which the evidence applies to it. When the question of treason came to be tried, we brought forward points of defence which they never thought of. May it not be the case again? Is it possible for them to know what bearing this evidence will have on our defence, without knowing the defence itself? I will not say any thing of the contents of the letter till they shall be proved: but we have every reason to believe that they are material and have a considerable bearing on the cause. I hope it will be produced publicly in court, and like other documents inspected and discussed, or that the cause will be continued: for I never can agree, as long as I happen to live under the present happy government of the United States, that the lives and liberties of our citizens shall depend on the arbitrary decisions of a secret tribunal.

Mr. WIRT. It is a very singular situation we have brought ourselves into. In our zeal for exploring the executive cabinet, and scrutinizing state secrets, we have lost sight of the point really before the court. This is an indictment found against Aaron Burr, for preparing an expedition against the Spanish provinces. He demands this letter as material to his defence, and has made a motion to continue the cause till it shall be produced. The affidavit on which the call for the letter is founded, in defence of the charge for a misdemeanor is so expressed as to apply either to the charge for treason or that for the misdemeanor. It was drawn with great art and caution. It was vague and uncertain: whereas it ought to be explicit and applicable to this cause. He could not plead to the indictment without announcing the defence which he meant to adopt, and enabling the court to judge of it. Suppose he had pleaded not guilty; the inquiry which the court would in that case have to make would be, whether Aaron Burr was guilty of the offence of preparing an expedition against the Spanish provinces or not. Why was the affidavit so ambiguous and inexplicit? He says in his affidavit, that the letter may be material, not that it is material, not that it probably will be material to his defence. A mere vague suggestion, or remote possibility that it may become so: but he demands the surrender of the letter at all events. This is insufficient. It must shew not only that it positively is, but how it is material. The falsehood of such an affidavit could not be detected. The letter may be irrelevant and immaterial to the defence, and yet it will not contradict it. Either alternative will equally justify the terms of the affidavit. There is no collision between them. If colonel Burr have posisitively sworn that it was material, and it should not be so, then

there would be a collision and he would be detected: but as it stood on a vague affidavit, there was no contradiction between them. It was so expressed, that whether the letter were or were not material, it would be precisely the same. The terms would suit either materiality or the contrary: for as it may, so it may not be material. The affidavit might be strictly true, and yet the letter have no relation whatever to the subject.

Mr. Wirt contended with his usual zeal and ability that the government had a right to withhold papers of a confidential nature, and of which the disclosure is forbidden by the public good; that the accused should have the necessary means of defending himself according to the first rules and principles of law; and this was all that reason required, and what the counsel for the United States did not wish to withhold; but that the rights of the public were as sacred as those of any party accused, and ought not to be sacrificed thereto. That there was not even a probability before the court, that this letter was material to his defence. That this was manifest from the statement of the attorney; his return, and certificate of the parts which in his judgment may be disclosed; his offer to make affidavit that the other parts, deemed confidential, were not material for the purposes of justice or for the defence of the accused or pertinent to the issue; and his referring the accuracy of his opinion to the judgment of the court, by submitting the letter to its inspection, and even to the gentlemen themselves. That there was no reason to suspect the candour and sincerity of the attorney-all the circumstances evinced that he ought to be implicitly confided in.

Mr. Wirt further observed, "We have heard a great deal of pathetic declamation against a system of espionage and state secrecy from the accused and his counsel. If gentlemen have changed their opinions on this subject, I should be glad to know how long since they have had this great aversion to mystery and secrecy. It is not a little singular that we should hear such declamation, such violent philippics against the secrecy of the go. vernment, from a man whose whole conduct has been so mysterious, whose transactions have been carried on under an impene. trable veil of secrecy, whose artful disguise has so concealed the truth and opposed so many obstacles to public justice, that several weeks have been occupied in what ought not to have taken up as many hours!"

He then observed that Mr. Wickham seemed to think that when a person gives information to the president, he must publish it to the world however confidentially communicated, and how ever essential to the public its concealment may be. Mr. Wirt then added, that the publication of such a letter communicating to the president the turpitude or defection of public agents or other influential characters, might stimulate them to revenge, to VOL. II.

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beat or murder the informer. That if general Wilkinson were mistaken in the opinion which induced him to denounce these men, his mistake had no connexion with the guilt or innocence of the person now accused before the court. That it was not a good reason for producing the letter. The letter was not now in the hands of the president, because it had been transmitted to the attorney for the United States, on this trust, that it should be used as if it had remained in the hands of the president: it was sent to him for the purpose of forwarding the trial and conducting it to a fair issue, but that this was no reason why it should be now clutched out of his hands. If it were still in the hands of the chief magistrate he would have a right to assign his reasons for withholding it: by having let it out of his hands, he had not lost this right; it continued still completely vested in him. He had only delivered it confidentially, and had a right to resume it again.

He argued further, in refutation of Mr. Wickham's argument, that the president could not transfer this right to Mr. Hay, the attorney who was acting for the public. That such a transfer was unnecessary; and that the letter having been confidentially delivered to Mr. Hay, was still to be considered as in the possession of the president, as he had a right to get it again when he thought proper.

He concluded by observing that this application for a continuance till the paper was produced, was founded on a conjecture, a mere possibility that "it may be material," which any statement of facts would justify. That it did not answer the purpose which required the affidavit of the party, to justify a continuance. It afforded no security; it was merely illusory; and in no respect better than if no affidavit were made. He hoped therefore that the motion would be rejected, and that they might proceed with the trial.

Mr. BOTTS replied to this effect:-He endeavoured to refute the arguments for the prosecution, and to prove the propriety and necessity of producing this letter in evidence. He argued that general Wilkinson was the prime mover of the plan, yet he was the principal witness in the prosecution now going on against colonel Burr. What were general Wilkinson's motives was a question of importance. Whether he acted to gratify his malignity or personal revenge, or with interested views; to shelter himself from censure and prosecution, and to elevate his fortune, were all points of the first magnitude. That in this state of things, colonel Burr knowing the character and disposition of general Wilkinson; knowing more than any other person what he had said and done, and to what length he was probably prepared to go; knowing that it was in the power of the prosecution to introduce him or not, had made an affidavit that the letter " may be material," which ought to be considered sufficient; because the letter being in possession of the

government which prosecutes him, he cannot know with certainty its contents. He can only state as he has done, that from the information he has received, he believes it may be material. If general Wilkinson be exhibited as a patriot, preparing the means of carrying on this prosecution; if his conduct result from pure and not sinister motives, his evidence was important and meritorious: if from malignity, revenge, or ambition, it was entitled to no credit, and it would be of importance to colonel Burr to prove the baseness of his motives, and diminish the lustre of character attempted unjustly to be given him. If it only contradicted his evidence, it might be material. As the prosecutors expected in that point of view great benefit from general Wilkinson, the accu sed had a right to impeach his credit. That it would have been incautious and improper to have sworn that this letter will be • material. When he says that certain parts of it will be material, he undertakes to say, that the prosecutor will certainly exhibit that very evidence, which he supposes to be material to his defence. No man can undertake to say with a safe conscience, what will be exhibited against him, for it does not depend on himself. Suppose col. Burr should have undertaken to swear that the testimony "will be material" to his defence against the prosecution; he would have undertaken equally to say that it would be exhibited; for unless exhibited or shewn, it cannot be material. The man who wishes to swear to the truth, when he prepares for his defence, can never swear to more than that the evidence may be material.

But Mr. Wirt had said that gentlemen ought to shew and state positively its materiality. If, said Mr. Botts, we were to undertake to do so, and it should appear on trial that the testimony was not material as he believed, we should be censured for not doing the thing we intended to do when this affidavit was made. We should be told that he might with perfect safety swear that it might be material, without rashly declaring that it was absolutely material.

But it is insisted that we should shew those parts of the letter which we deem material. How could we know and produce the parts of the letter which operate in our favour, when it is in possession of the prosecutors? But suppose we did know the material parts of the letter and the facts therein stated, should we be excused for announcing them to the public, and through the public to general Wilkinson? If we did so, he would deliberate on the means of preventing detection and avoid the contradiction which would otherwise be apt to fix on him. It is held to be the sacred privilege of a prisoner not to be obliged to disclose his defence till he is prepared for it: for if he could be compelled to make such a disclosure it might insure his destruction by the machinations of his enemies: subornation might be resorted to,