He was still surprised at the gentleman's proceedings, because the very principle which he supports as to the papers, would go to prevent the introduction of witnesses before the grand jury. Papers, he admits, are not proper to go before the jury; and therefore, if witnesses are to carry them, they themselves ought not to go. If Mr. Hay were called before the jury, he would produce no papers but what had passed through the court. But Mr. Hay is not the only prosecutor in this business. There is another equally active, and more deeply concerned. Mr. Hay admits, that this zealous prosecutor may produce his papers before the jury. If he merely produce papers to refresh his memory, any instruction which may go from the court, will be perfectly innocent in its effects; but it is possible that such an instruction may be necessary to repress the introduction of very improper papers, which he might hope to convey to the multitude abroad, through the channel of the grand jury. We are asked, why we suppose, that improper papers will be carried to the grand jury? There was a particular reason to recommend this vigilance. It was understood that a species of plunder had been permitted; that the post-offices had been robbed; and that letters thus improperly obtained, ought not to be laid before the grand jury, without being first examined by the court. It was, in fact, impossible that any papers, obtained by such means, could be legal evidence. Mr. Botts here read as an authority, from the eighth volume of the American Museum, judge Grimpkie's charge to the grand jury, to show that written evidence ought not to be heard by a grand jury; it being a well established principle, that a grand jury ought not to hear such evidence, till it is examined, and declared to be authentic, by the court.

CHIEF JUSTICE.-Neither affidavits nor papers, containing distinct substantive testimony against the accused, ought to be sent to the grand jury.

Mr. MARTIN. Mr. attorney has conceded this in substance; and we admit that any witness may refer to papers to refresh his memory.

Mr. HAY.-I am willing to adhere, in form and substance, to my promise. I know not what papers general Wilkinson may produce. I was with him yesterday, and saw him in possession of a great many. But which of them he may choose to refer to, I cannot possibly say. If gentlemen wish to know the object of my visit to him, I will tell them.

Mr. MARTIN.-It is unnecessary.

Mr. HAY.-I had said before in this court, that I would not undertake to defend general Wilkinson; but the result of my conversation with him yesterday is, that it is my duty to defend

him; because I am well satisfied that he is an honest man, and a patriot. All my suspicions, imbibed from the mysterious circumstances in the case, have completely vanished; and being convinced of his unsullied integrity, I shall defend him with the most perfect sincerity.

Mr. MARTIN.-The gentleman has taken a good way to remove his unfavourable impressions, if that can be called a good one, which consists in hearing but one side of a cause. He has heard Wilkinson's own story. I wish he would hear colonel Burr's story; perhaps his impressions against him might also be removed.

Mr. HAY.-I have heard his story from his counsel; but they have strengthened my conviction against him.

Mr. WIRT said, that he had perused the authority quoted by Mr. Botts, and that he was satisfied, that the papers referred to by judge Grimpkie, were only affidavits. [Mr. Wirt read quotations to prove his position.] That the distinction was, that where a piece of written testimony was distinct and substantive, it was not admissible as evidence before a grand jury; but where it was explanatory of viva voce evidence, it was proper and admissible. That it was sometimes necessary to resort to written papers as the very best testimony. For example, said he, suppose general Wilkinson should state, that on such a day he received a letter from Burr, by the hands of Bollman or Swartwout: would not Burr's letters, in such case, with Wilkinson's oath, that they were the hand writing of Burr, be evidence even before a petit jury, and of course before a grand jury? Such letters are the best evidence of their own contents. If he were to make a verbal statement of their contents, would not the jury have a right to say to him, " Produce the original, we demand it as the best evidence?" Suppose general Wilkinson were to produce the cyphered letter, would it not be competent to the jury to say,, "Produce it; we shall receive it, and explanations of its contents?" This shows, that the objection, as made generally to all papers, is fallacious and cannot be supported by law or reason. There are many different links in the chain of evidence. It is manifest, that written documents are sometimes not only evidence, but the very best, which can, in the nature of things, be adduced.

Mr. WICKHAM.-The counsel said, that he would send up no papers. But it is contended that the witnesses may carry up papers to the grand jury. It is a distinction without a difference. The object is to prevent the admission of improper evidence; and it is precisely the same thing in substance to receive it from a witness who carries, as from the attorney who sends it. When a petit jury is empaneled, the court inspect the papers before the jury

are permitted to see them. The gentlemen have laid down a broad position, that any witness may have recourse to any papers to strengthen his recollection. This is certainly not correct. I beg leave to remind the court of a case (judge Chase's trial), which happened before the highest tribunal in this country, the senate of the United States, where it was decided, that a witness (Mr. Hay himself) was not permitted to read memoranda, even to refresh his memory. Mr. Wirt admits that an affidavit may not be read, but that a paper, not on oath, may be read.

Mr. WIRT.-The gentleman is uncandid. I wish he would understand me, and answer me candidly. He puts an absurdity into my mouth, which I disclaim. I wish the gentleman to state his argument against my argument as it was, and not according to his own deductions.

Mr. WICKHAM.-I agree that the gentleman did not state an absurdity in terms: but an absurdity inevitably follows from what he said. The court alone ought to determine what papers are evidence and proper to be at all heard by a grand jury.

Mr. HAY.-I beg leave to make one observation. I care not for the decision in Chase's trial; nor do I know that it was as now stated: but if it were, I assert, that those who made it, knew that it was contrary to law. In the trials of Hardy, Tooke and Thelwal, a contrary principle was determined. A witness, who was a spy of the government, had no memory or recollection of the circumstances he was to prove, but from his reference to written memoranda. Mr. Wickham knew this decision not to be law, but he mentioned it merely because I was the witness in that case.

Mr. BOTTS.-Mr. Hay's observation is the longest I ever heard. The senate did so decide, and perhaps unanimously; and it was composed of the ablest lawyers from all parts of the union.

Mr. HAY contested the fact of decision in that manner; but he was irritated, and did not recollect precisely how it was; but he was informed that it was not decided unanimously, though it might have been so pronounced.

Messrs. MARTIN and WICKHAM stated, that the decision was by eighteen senators against sixteen, (which was the fact).

Mr. BOTTS.-Mr. Hay and Mr. Wirt take different grounds. Mr. MARTIN Contended, that the court was to decide what evidence was to go to the grand jury. He cited Danby's case, where a witness gave a deposition under the statute of William and Mary; he prevaricated before the grand jury, and they sent for his deposition to confront him. The court decided that they should not have it, because it was improper for them to see it.

CHIEF JUSTICE.There is a difference between the grand and petit jury. The former are to make inquiry; they may send for witnesses; directions ought therefore to be given them in general terms. But I am not satisfied that a court ought to inspect the papers which form a part of a witness's testimony before he is sent to the grand jury. This would render it necessary to examine the witnesses in open court. The chief justice here delivered the opinion of the court, reduced to writing, in order to be laid before the grand jury. Its purport was, to instruct the grand jury not to inspect any papers but such as formed a part of the narrative of the witness, and proved to be the papers of the person against whom an indictment was exhibited.

Mr. HAY objected to this form of instruction. Suppose a paper from a person closely connected with the accused were adduced; as for instance, doctor Bollman. Such a paper may be important to prove to the jury the integrity and proper conduct of general Wilkinson. It may have had a material influence on his mind, even if not genuine.

CHIEF JUSTICE.-Your argument is, that the papers are to be admitted to justify the conduct of the witness; but they ought not to bear upon the accused.

Mr. HAY.-The prejudices in the western and other papers against general Wilkinson's character, representing him as connected with Aaron Burr, make it necessary that his reputation should be vindicated. He comes before the jury as a suspected person. The language of the cyphered letter seems to countenance the conjecture. It may be necessary to exhibit these papers to support the credit of the witness.

CHIEF JUSTICE.-The opinion may therefore be amended, by adding that such papers are also admissible as tend to justify the witness, but not to bear upon the prisoner.

Mr. WICKHAM.-General Wilkinson is not on his trial. Their object is not to vindicate Wilkinson, but to accuse Burr, who is on his trial. Wilkinson's oath is to be supported by proving papers by his oath; so that he is to support himself. This is not legal testimony, and ought not to be admitted. It is true, that these papers do not criminate colonel Burr directly, but they bear upon him by vindicating Wilkinson; and it is a sound rule of law, that what cannot be done directly shall not be permitted to be done indirectly.

Mr. WIRT.-The court does not contravene that doctrine. On Shaftsbury's trial, the grand jury wished to examine witnesses as to the credibility of a witness. Pemberton rejected such evidence, but that opinion has since been exploded. It is the

privilege and duty of the grand jury to judge of the credibility of witnesses. If they have doubts of the credibility of Wilkinson, they ought to inquire into, and be satisfied upon the point. They may call upon him for an explanation as to facts and cir cumstances, which he can afford by the production of his papers.

Mr. HAY proposed an amendment to the court's instructions; "that any paper might be exhibited which came from the accused, or any other person proved to be an accomplice of the accused, or that formed a part, or was explanatory of the witness's narrative."

Mr. MARTIN. The proposed alteration suits the gentleman's purpose. There is no paper under heaven, but what might be introduced as part of his narrative; even papers procured by breaking open letters from the post office, or seized by violence or robbery, might be so used under that general definition.

The CHIEF JUSTICE wished to send some specific instructions to the grand jury, to prevent the delay that might arise from their coming into court, when they had a particular paper before them, on which they would wish to obtain the instruction of the

court.

Mr. HAY contended, that the alteration he had suggested was proper; and quoted authority to show, that when a man was once proved to be an accomplice or connected with another, what was in proof against the other, was good proof against him: [which see hereafter].

CHIEF JUSTICE.-Is there any authority to show that papers communicated by an accomplice can be used as evidence?

Mr. HAY.-The doctrine is, that "where a man is proved to be an accomplice, his papers may be used against another." In Horne Tooke's trial, pages 86, 87, Erskine conceded, that where the prisoner's connection with a third person was proved, the letters or papers of that third person, relating to the question before the court, were testimony against him. 1 East's Crown Law, page 97.

Mr. WIRT added, that there was no difference between the words or writings of an accomplice as evidence; in support of which he referred to the trials of Hardy, Tooke and Thelwal, [which see hereafter], and to 6th Durnford & East's Reports, p. 527, where it was solemnly determined, on the trial of William Stone, for high treason, that "a letter sent by one of the conspirators in pursuance of the common design, with a view of reaching the enemy, was evidence against all persons engaged in the same conspiracy."