Mr. HAY then observed, that their objection to its being read showed clearly their object, and was a palpable contradiction to their statement; that they used it as a mere pretext. Believing it not to be in court, they loudly demanded it as a document essential to their client, and demonstrative of oppression in the government; but the moment it is offered to be read, they object to it.

Mr. MARTIN vindicated colonel Burr from the charge of having stimulated him to make any severe reflections: that colonel Burr had, in fact, endeavoured to restrain him; but that he was urged by his own feelings to express his sentiments, contrary to the directionsof his client.

Mr. BOTTS vindicated Mr. Randolph (who was absent) from the charge preferred against him by Mr. Hay. He did not believe that Mr. Hay had intentionally misrepresented any thing; but that he was incorrect in saying, that the counsel of colonel Burr had expressed complaints without cause, and exibited charges without any evidence. We are, said Mr. Botts, in a delicate situation: great prejudices have been excited, and the popular voice is raised against us. But we hope that truth and justice will prevail. We do not wish to accuse the executive unjustly; innocence ought to be presumed until guilt appears. We have prima facie evidence of what we allege; but still we hope that the honour and character of the government will be found to be unsullied, and that all doubts respecting its conduct will be cleared up. This can be most effectually done by producing freely, without reserve or opposition, all the testimony in its power, which we demand as material to our defence. Colonel Burr wished us not to wander into charges against the administration, unless the proofs of its improper acts were indubitable, and they were clearly connected with this cause.

The CHIEF JUSTICE, after having expressed the regret of the court, at the length of time already consumed in the discussion of this motion, proposed, that no more than the usual number of counsel should speak on incidental points. That the court was unwilling to check gentlemen in their arguments, but it was hoped, that hereafter they would endeavour to avoid repetitions, and the unnecessary waste of time.

Mr. HAY again proposed to read the letter of the secretary of the navy.

CHIEF JUSTICE.-The propriety of reading depends on its authentication.

Mr. HAY-I suppose that gentlemen wish to see it, though not legally authenticated.

Mr. MARTIN expressed a doubt whether this was the same order; he presumed that there were more orders.

Mr. RANDOLPH (who had returned into court) wished to see it, in order to ascertain whether it was the same which they had seen in the Natchez gazette.

Mr. HAY declared his belief that it was the same, but as gentlemen did not wish to hear it, he put it up again.

Mr. BURR addressed the court. He observed, that this was perhaps the most proper time for renewing the motion which he had made some time ago, about giving more specific instructions to the grand jury, on certain points of evidence. These points he had reduced to writing, in the form of abstract propositions, which he would take the liberty of reading to the court: the following is a list of those propositions, with the authorities cited to support them.

First, That the grand jury cannot, consistently with their oath, find a bill, except on such testimony as would justify a petit jury to find the prisoner guilty. Foster, 232. sec. 8. 3 Institute, 25. 2 Institute, 384. Dalton, 519. Judge Wilson's Works, vol. 2. p. 364. T. W. Williams' Justice, vol. 3. printed 1794. 3 State Trials, 419, 420. and Sir John Hawles' Observations, 4 St. Tr. 133. 4 Black. 302-306. 2 Hale, chap. 8. p. 61., Wilson's edition with Wilson's note. 2 Hale, chap. 22. p. 157., with Wilson's note. Eunomos' Dict. 2d. sec. 39. p. 124, 5, 6. 5 State Tr. p. 3. Foster, p. 232. sec. 8.

Second, That no testimony or witness ought to go to the grand jury, but what is legal and competent to support the charge about which the inquiry is made. Danby's case, Leech 443. c. 187. Dodd's case, Leech, 59. c. 77. Commonwealth of Virginia v. Hopbam, Warles and Daws, before the general court at Williamsburg.

Third, That the grand jury cannot return a bill for treason, for levying war against the United States, unless they have two witnesses who swear to the overt act of the treason laid in the indictment; both which witnesses are believed by them. East's Crown Law, chap. 2. sec. 64.

That both must be believed, 3 State Trials, p. 56.

Fourth, That there must be two witnesses to the grand jury of each overt act, follows also as a consequence from the former position, that they must have such testimony as would be requisite for the petit jury.

Fifth, That the grand jury cannot find a bill for treason in consequence of any confessions made, though proved by two witnesses. Foster, 241,-3. 4 Black. Constitution of the United States, article 3. sec. 3. Graydon's Digest, 11. Judge

Iredell's charge, Fries's Trial, 171, 172. East's Crown Law, 96, 97.

Sixth, That as the grand jury only hear evidence on the part of the state, if upon that evidence they entertain a doubt of the truth of the charge, they ought not to find the bill; as the presumption is ever in favour of innocence. 1 Mac Nally,

2 to 6.

Seventh, No act of a third person can be given in evidence against the accused to prove him guilty of treason, or of a misdemeanor under the law of the 5th June 1794, unless that act is proved to have been committed by the advice, command, direction or instigation of the accused, if done in his absence, or if done in his presence, unless it be proved that the accused was aiding or assisting.

An act shall bind a person connected with the act, but the declaration shall not bind him, because no part of the act. Mac Nally, 615, 616.

Eighth, The declarations of others cannot be given in evidence on the present inquiry to support the charge of treason, or of a misdemeanor under the act of congress 15th June, 1794, unless it be proven that the accused was present and assented thereto.

East, 96. In case of conspiracy, confessions good against him who makes them, but not against others, Peake, chap. 1. Admiss. Hearsay-Kelyng, 18. Mac Nally, 40, 41. Confessions of one cannot be read against others. 3 State Trials, 57.

A relation of what had been done, no evidence. Mac Nally,

616.

Declarations of others are not evidence. 4 State Trials, 192-196.

6 State Trials, 218. In the presence of others, they acquiescing. Mac Nally, 621.

Mr. HAY opposed this proceeding. He contended, that the court had no right to give specific instructions to the grand jury, after they had been once generally charged by the court; that such a course was contrary to all law and all precedent; that not a single instance could be quoted to support it; and that there were cogent, and in this instance, particular reasons why criminal prosecutions should be suffered to progress without these interruptions. He further contended, that the chief justice had anticipated such a situation; and that the language in his charge clearly indicated his expectation, that bills would be laid before the grand jury on the ground of treason; and that under this expectation, the chief justice had dilated on the nature of treason, and given all the information which he thought material; that there was no reason at all, why Aaron Burr

should enjoy greater privileges than any other man, or why he should rake up all the old, musty and absurd doctrines of antiquity, and have them enlisted in his service; and that he stood on the very same ground as any other man. That perhaps all the propositions on Mr. Burr's list would not be wanting at all; or if there should be any necessity for them, that these questions might be discussed as they successively arose; that these discussions would necessarily consume much of his own time, as well as the time of the court, which might probably be devoted to more useful purposes; and after all, the grand jury might refuse any instructions, and in that case, how could they be controlled by the court? If the grand jury determined to pay no regard to it, of what avail would be the recommendation of the court? (for it was in fact no more). And if they were to find according to their own opinions, and in the old way, how could the court know of this variation, and how could they rectify it?

Mr. BOTTS replied. He stated that the gentleman had demanded precedents; and yet it was but the other day when that very gentleman had inquired, why we so constantly resorted to precedents, and why we did not sometimes consult the principles of common sense: that the grand jury were not that lawless mob, which the gentleman had seemed to represent them; and that they would not certainly act against the law, when it was properly expounded to them by the court; that although the chief justice's charge was extremely able, yet it was impossible that it could be so comprehensive as it might now be made, from the information which has since occurred; and that the very necessity of giving any charge at all, showed the propriety of perfecting it; that it was not colonel Burr's desire to consume much time, as it was his most earnest wish to end at once the bonds of recognisance and the public prejudice which surrounded him; and that they were even willing to limit their share of the discussion to a particular time.

The CHIEF JUSTICE said, that it was usual and the best course for the court to charge the jury generally, at the commencement of the term, and to give their opinion on incidental points as they arose, when the grand jury themselves should apply to them for information; that it was manifestly improper to commit the opinion of the court on points which might come before them, to be decided on the trial in chief; that he had generally confined his charges to a few general points, without launching into many details; one reason was, that some of the detailed points might never arise during the session of the grand jury, and any instruction on them, would of course, be unnecessary; another was, that some of these points might

Be extremely difficult to be decided, and would require an argument of counsel; because there was no judge or man, who would not often find the solitary meditations of his closet very much assisted by the discussions of others: that he would have had no difficulty, however, in expanding his charge, if he had been particularly requested to do it, or if he could have anticipated any necessity for it, and that he would have no difficulty in giving his opinions at this time on certain points, on which he could obtain a discussion by the counsel, provided he did not thereby commit his opinion on the trial in chief.

Mr. BURR then requested him to inspect the list of propositions, and the authorities referred to in support of them, which he had prepared; he might then determine which of those points would admit of the delivery of his opinion, and which would not. The court then adjourned till to-morrow.

SATURDAY, June 13th, 1807.

The court met according to adjournment.

Mr. BURR thought proper to mention that his counsel had understood, that a supplemental charge had been written by the court, and put into the hands of the attorney of the United States, and that it was to be shown to his counsel before it was delivered. That for want of time, or some other cause, it had not yet been submitted to them. The court had yesterday requested and obtained a copy of his propositions, that they might judge of their application, and if satisfied on that point, that they might give additional instructions to the grand jury. Though the court might not at first have perceived the necessity of a supplemental charge, yet it must now appear, that each of his propositions. must come before the grand jury. If the court were satisfied that they ought, they would have such additional instructions as were necessary; and if they had doubts, they would require an argument. He was ready to demonstrate the truth of every one of them. That he was ready to argue three weeks ago, and was desirous to save time, and would support them by written or oral arguments, as the court might think proper.

The CHIEF JUSTICE stated that he had drawn up a supplemental charge, which he had submitted to the attorney for the United States; with a request that it should also be put into the hands of colonel Burr's counsel; that Mr. Hay had however informed him, in the conversation which he had just had with him, that he had been too much occupied himself, to inspect the charge with attention, and deliver it to the opposite counsel; but another reason was, that there was one point in the charge which he did not fully approve. He should not, therefore, deliver his charge