at present, but should reserve it until Monday. In the mean time colonel Burr's counsel have an opportunity of inspecting it; and an argument might be held on the points which had pro duced an objection from the attorney for the United States.

Mr. E. RANDOLPH.-Is it the wish of the court that the argument should be carried on orally or in writing?

CHIEF JUSTICE.-I am willing to see the remarks on both sides, in writing.

Mr. HAY objected to this method from the excessive labour which it would impose upon them either way.

The CHIEF JUSTICE declared that it was perfectly indifferent to him.

Mr. MARTIN assured the court that it was perfectly convenient to him to argue the point either orally or in writing.

Mr. WICKHAM stated, that the attorney for the United States wished to object to certain propositions which colonel Burr had submitted to the court; that he was ready to go into the discussion immediately; that the attorney for the United States preferred an argument before the court to one in writing; and that this was in fact, the very course which colonel Burr's counsel had first recommended. Mr. Wickham hoped that this supplemental charge would be given to the jury, before the witnesses were sent up; that the counsel for the prosecution preferred the contrary, but which was, in fact, the most improper course.

The CHIEF JUSTICE observed, that the court would also have wished that the charge should have been delivered, before the witnesses were sent up: but that it was almost indifferent to him, whether the testimony was submitted to the grand jury before or after the delivery of the charge; that it was often the custom for the petit jury itself to hear the testimony before the law was expounded, and the same practice might extend to the grand jury; for it was extremely easy for them, after they had heard the testimony, to apply the instructions of the court, and distinguish those parts which were admissible from those that were not so. It was not, for instance, absolutely necessary for them to know, previous to the delivery of the charge, that two witnesses were necessary to prove the overt act. When the charge had been delivered, that principle would apply to the testimony which they had actually heard; and that it was desirable that though the charge should precede the testimony, yet it was not so essential as to interrupt the proceedings.

Mr. RANDOLPH conceived it far more important to give the supplemental charge before than after the exhibition of the tes

timony: that with one set of principles on their mind, the grand jury would frequently ask questions in one point of view, which they would not under other impressions; and that the supplemental, like the original, charge ought to precede the evidence.

Mr. MARTIN observed, that there was this considerable difference between a grand and a petit jury, that when any doubt arose about the propriety of testimony before the petit jury, the court would be present and ready to decide; but the grand jury has not the same aid of the judgment of the court in selecting the testimony.

The CHIEF JUSTICE said, that the necessity of giving a supplemental charge, at this time, was not so manifest; as, in his original charge, he had expressed his ideas on the nature of treason. That he stated this crime to consist in an actual "levying of war," and that of course, the grand jury would have to inquire into the existence of overt acts: that, from this statement, it would readily occur to the jury, that no matter what suspicions were entertained, what plans had been formed, what enterprizes had been projected, there could be no treason without an overt act; and without some overt act, no crime of treason had been committed.

The discussion of this question was at length waived, when the CHIEF JUSTICE delivered the following opinion on the motion to issue a subpœna duces tecum directed to the president of the United States:

The object of the motion, now to be decided, is to obtain copies of certain orders, understood to have been issued to the land and naval officers of the United States for the apprehension of the accused, and an original letter from general Wilkinson to the president in relation to the accused, with the answer of the president to that letter, which papers are supposed to be material to the defence. As the legal mode of effecting this object, a motion is made for a subpœna duces tecum, to be directed to the president of the United States.

In opposition to this motion, a preliminary point has been made by the counsel for the prosecution. It has been insisted by them, that, until the grand jury shall have found a true bill, the party accused is not entitled to subpanas nor to the aid of the court to obtain his testimony.

It will not be said, that this opinion is now, for the first time, advanced in the United States; but certainly, it is now, for the first time, advanced in Virginia. So far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country has been, to permit any individual, who was charged with any crime, to prepare for his defence, and to obtain the VOL. I.

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 com mencement 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.

process of the court, for the purpose of enabling him so to do. This practice is as convenient, and as consonant to justice, as it is to humanity. It prevents, in a great measure, those delays which are never desirable, which frequently occasion the loss of testimony, and which are often oppressive. That would be the inevitable consequence of withholding from a prisoner the process of the court, until the indictment against him was found by the grand jury. The right of an accused person to the process of the court, to compel the attendance of witnesses, seems to follow, necessarily, from the right to examine those witnesses; and, wherever the right exists, it would be reasonable that it should be accompanied with the means of rendering it effectual. It is not doubted, that a person, who appears before a court under a recognisance, must expect that a bill will be preferred against him, or that a question, concerning the continuance of the recognisance, will be brought before the court. In the first event, he has the right, and it is perhaps his duty, to prepare for his defence at the trial. In the second event, it will not be denied, that he possesses the right to examine witnesses on the question of continuing his recognisance. In either case, it would seem reasonable, that he should be entitled to the process of the court, to procure the attendance of his witnesses. The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial; and they consequently allow to the accused the right of preparing the means to secure such a trial. The objection, that the attorney may refuse to proceed at this time, and that no day is fixed for the trial, if he should proceed, presents no real difficulty. It would be a very insufficient excuse to a prisoner, who had failed to prepare for his trial, to say, that he was not certain the attorney would proceed against him. Had the indictment been found at the first term, it would have been in some measure uncertain, whether there would have been a trial at this, and still more uncertain on what day that trial would take place; yet, subpoenas would have issued returnable to the first day of the term; and if, after its commencement, other subpoenas had been required, they would have issued returnable as the court might direct. In fact, all process, to which the law has affixed no certain return day, is made returnable at the discretion of the court.

General principles, then, and general practice are in favour of the right of every accused person, so soon as his case is in court, to prepare for his defence, and to receive the aid of the process of the court to compel the attendance of his witnesses.

The constitution and laws of the United States will now be considered, for the purpose of ascertaining how they bear upon the question. The eighth amendment to the constitution gives to the accused," in all criminal prosecutions, a right to a speedy