General Dayton appeared in court; and Mr. WICKHAM his counsel wished to know whether the attorney for the United States intended to proceed further on the indictment against him for treason; as some preparatory steps were necessary; and general Dayton was ready.

Mr. HAY answered that after the opinion of the court delivered in the case of the indictment for treason against colonel Burr, it was not his intention to prosecute the indictment for treason against general Dayton. He could not see the utility of incurring the expense and trouble of such a trial after that decision. He knew no act committed by him at Blannerhassett's island, or elsewhere within this district, that amounted to treason according to that opinion. He therefore thought it correct to enter a nolle prosequi as to that indictment. And it was accordingly entered.

Mr. WICKHAM then pleaded not guilty as to the indictment against general Dayton for the misdemeanor. And he and his bail entered into recognisance for his appearance in court from day to day.

The court then adjourned till to-morrow.

FRIDAY, September 4, 1807.

Colonel BURR renewed his application for the production of the two letters from general Wilkinson to the president of the United States: one of the 21st of October, 1806; and the other of the 12th of November in the same year; and for which a writ of subpæna duces tecum had been awarded. He said that the president was in contempt, and that he had a right to demand process of contempt against him; but as it would be unpleasant to resort to such process, and it would produce delay, he hoped the letters would be produced. It might perhaps suffice to produce a copy, if duly authenticated, of that of the 21st of October, which was said to be lost or mislaid.

As to the letter of the 12th of November, which was alleged to contain certain confidential communications from the general to the president, and which the attorney had expressed a willingness to produce, except those parts which were said to be confi dential, he was not at present disposed to yield to the proposi tion. He had reason to believe that the whole letter had been shewn to others to injure him; and as the whole letter had been used against him, the whole ought to be produced.

Mr. HAY did not know what was meant by the expression of such a belief or suspicion. He could assure the accused that no human being had ever seen it to his knowledge, except the person to whom it was addressed, the counsel for the United States, the chief justice and some of colonel Burr's counsel to whom it was confidentially communicated, in order to ascertain whether some

agreement could not be made for their production, with the exception of those parts which, in the president's judgment, ought not to be disclosed.

Mr. BURR said that he would be more explicit; and asked gentlemen whether this letter had not been used against him before the grand jury.

Mr. HAY could not be certain whether they were produced before the grand jury or not. He was not as well acquainted with what passed before the grand jury as some other gentlemen were.. He had a copy of the letter of the 21st of October; and he did not know that there was any part of it, to the disclosure of which he would object. He had the letter of the 12th of November 1806, which had been mentioned yesterday. He was not certain whether he had the original letter or a copy, but he had certainly seen the original. He had put it up and experienced some difficulty before finding it. Before he was certain that he had the original letter, he had got a copy of it from general Wilkinson, and he found that there was the most exact coincidence between the one and the other. He mentioned this merely as an argument to shew that the copy of the letter of the 21st of October might be relied on as equally accurate.

In order to verify this copy of that letter, Mr. Hay called Mr. Duncan, who was sworn and declared his belief that it was a true copy of the letter spoken of; (the original of which had been shewn to him by general Wilkinson;) that it was all in the handwriting of captain Walter Burling, who was an aid of general Wilkinson; that he was well acquainted with his handwriting, having often seen him write.

Mr. BOTTS asked if that were all the evidence he had to prove it to be a copy.

Mr. HAY answered that it was; and he thought it sufficient. He was ready to make oath, if required, that he could not find the original; that he had examined among his papers as well as he could; that Mr. Rodney had stated that he had sent him all the letters, but he could not find this in the packet sent him.

Mr. WICKHAM asked him whether he had reasons to believe that he had lost it.

Mr. HAY answered that he had no reason to believe that he had lost it, but that he knew not where it was; that they ought to be satisfied with the authenticity of this copy.

Mr. BOTTS said that it would be impossible to ascertain it to be an exact copy without comparing it to the original; that he hoped it would be produced; as it was, the only alternative was to VOL. II. 3 S

adjourn, in order that the gentleman might have an opportunity of examining his papers again; that they wished to have an opportunity of comparing it with the public documents; that they had a right to resort to these to defend themselves against charges exhibited by the public agents who had control over them.

CHIEF JUSTICE.-Perhaps you will be satisfied with this copy on reading it.

Mr. BOTTS.-We cannot be. The president has drawn inferences and deductions from certain parts of this letter injurious to colonel Burr; but which we say are incorrect. This renders indispensable the production of the original or an exact copy.

Mr. MARTIN suggested the propriety of adjourning, that colonel Burr and his counsel might confer together and determine whether to admit or reject this paper as evidence.

Mr. WICKHAM wished to know whether the attorney were ready to go on to the trial of general Dayton for the supposed misdemeanor.

Mr. HAY said that he wished to be candid; that he had no evidence against general Dayton, except his writing the letter to general Wilkinson, nor did he know the evidence which had been before the grand jury which induced them to find the bill against him; that they might rely on his candor, that he would dismiss the prosecution voluntarily, if he found that he had not sufficient testimony to support it.

Mr. WICKHAM urged the necessity of proceeding to trial.

Mr. HAY said that he had been so much occupied with the other business of the court that he had not had sufficient time to ascertain what evidence was against general Dayton. He could not therefore say then whether he could support the indictment for a misdemeanor or not. Perhaps he might know by to-morrow.

CHIEF JUSTICE.-The attorney must certainly judge for himself. He ought to consider whether so much of the case have not been already opened, as to enable him to determine whether there be any chance of supporting the indictment for providing and preparing the means of an expedition against the provinces of Spain. As it is evident that general Dayton was, during all the time, not at Blannerhassett's island, but in New Jersey, it may be a question how far he can be connected with those who acted on that island. I imagine that the testimony, being in possession of the attorney, will enable him to say whether there be any chance of supporting the indictment. It will be useless to the public and inconvenient to him as well as the witnesses to stay here several weeks longer unless there be some chance of a trial. The attorney ought not to be pressed to go to trial till he can ascertain the

state of the evidence. But these considerations ought to induce him to decide as soon as possible.

Mr. HAY.-Our opinion will be much regulated by that of the court on the law. If the court will require, of the prosecutor, evidence of acts done in Virginia, I do not suppose there will be a chance of producing a conviction. But if this be not required, it appears to me that he may be connected with the people on the island so as to be convicted.

The CHIEF JUSTICE would deliver no opinion. It would be known to-morrow what course Mr. Hay would take. And the indictment against Mr. Burr was to be tried.

After some other remarks of the same kind, Mr. MARTIN expressed a desire to know whether the attorney would try Israel Smith. He wished him to be arraigned to-morrow or as soon as possible. He was anxious that his trial should take place immediately, as he was perfectly convinced of his entire innocence; and he had already sustained great inconvenience from this unfounded prosecution.

Mr. HAY said that he would go on with all the trials as soon as he could; but he could not then say how soon.

Mr. BOTTS. I have inspected the copy of the letter in question, but cannot make up my mind that it ought to be read in evidence instead of the original. But there is another matter that the court can decide now: The letter of the 12th of November, 1806, mentioned yesterday, is in possession of the attorney for the United States. An affidavit has been made, by the accused, that that letter is material to his defence. There is only one way by which we can get at it, if he persist in refusing it; and that is by a subpana duces tecum directed to Mr. Hay. If this be objected to, on account of the public situation of the prosecutor, we have the same privileges as advocates for the accused. Neither can be exempt from the operation of such process. I contend that there can be no secrets for the prosecution which ought not to be disclosed to the accused, to aid him to make his necessary defence. If I be right in this, there can be no document in possession of the counsel for the government that ought to be withheld from the accused, if deemed by his counsel important to his defence. It would seem to be too evident to be disputed, that if we had a right to summon the president of the United States to produce that letter, we should have a right to inspect it when put into the possession of the attorney; for otherwise the public functionaries would have nothing to do but to deposit with the attorney any document which they wished to conceal from public view or prevent from being used as evidence, however necessary it might be to the defence of an innocent individual, and thus defeat the

effect of any subpœna duces tecum that might issue. It ought not to depend on the judgment or discretion of the attorney. The grounds of the application might not occur as readily to him as to the court, even if he were disposed, though not obliged, to produce it. We wish it to be deposited with the clerk where all parties may have access to it.

It was suggested yesterday that this letter might contain matter of a very confidential and delicate nature, relating to characters and transactions which ought not to be exposed, because never intended to be made public. Mr. Hay went so far as to say that it might place particular individuals in a very perilous as well as a delicate situation; that in every government, confidence must be placed, on particular emergencies, which ought not to be violated. And he observed that this high military officer was obliged by his duty to make a communication to the government of great importance to its interests, and the disclosure of which might subject him to evils which he ought not to encounter. Suppose these suspicions were founded in fact, and his motives were founded in patriotism, ought the government or the officer to be fearful to disclose that communication when the storm is over and the apprehended mischief is completely averted? Is there not energy enough in the government and in truth to shield innocence and suppress lawless aggression? Suppose on the other hand that a great many characters should have been maligned and denounced one by one as they should fall in the way of that officer, will you say that they ought to be subject to this censure and calumny without having the means of justifying themselves or proving their innocence? If these accusations be never to be disclosed, how can the government know whether the charges be true or false? or how can the innocent have an opportunity of vindicating themselves? Is it true, that in the government of the United States, unprincipled defamation is to be tolerated? Is Mr. Hay to be denounced by me without the power to vindicate himself? Is a worthy individual, holding a conspicuous office, to be denounced and secretly subjected to suspicion and hatred by the malicious detraction of his bitterest enemies, without having an opportunity to justify himself? If these denunciations be just, the characters accused ought to be known and punished according to due course of law. On the contrary, if they be unjust, those gentlemen ought to be apprised of them and to know their accusers. It would be an act of the most horrible injustice in the president to shield the accuser and condemn the accused without a hearing!

But suppose I am wrong in all this; it is a principle of law that no man should be condemned without the use of documents which he has reason to believe would acquit him, especially if in possession of the accuser. Why then should these letters, deemed so essential to the protection of his innocence, be withheld from