tronized by the government. By a familiarity of our rulers with such hate.ful practices the people would be demoralized. I claim from the counsel for the United States, as patriots, their aid to sanction my propositions, and join me in arraigning an act, which will disgrace all who had any agency in it. It must be a dreadful state of society, in which such an offence should be made the means of assisting to prove another. The principal of the government, if here, would join in the denunciation. If it behoove the government to suppress a paper thus unconstitutionally, clandestinely, and illegally obtained, if they cannot use the end without sanctifying the means, I wish, for the honour of the government, that the paper may be suppressed. I hope that in the dignity and generous spirit of Chatham, they will renounce it as unworthy of their use. It will do more mischief than the treason could, were it real.

I come now to the abstract question of law. The question put to Willie is, Do you understand that the original of this letter was written by colonel Burr?

Mr. MAC RAE.-That is not the question last put. It is, Do you understand that part of the letter which is in cypher? Mr. BOTTS.-Very well. The gentlemen charge that this letter contains treasonable matter.

Mr. HAY denied it.

Mr. BOTTS.-Either the letter contains treasonable matter or it does not. If the latter, it is irrelevant and improper for discussion. If treasonable matter be contained in it, the question goes to criminate the witness. If he answer "Yes," he is infamous. The rule is, that you shall not make the witness answer a question which may tend to implicate him in moral or legal turpitude. The witness himself is the judge, how far his answer may affect him. If he were obliged to answer, that the court may judge of its tendency, he would be surrendering his protection in the means of securing it. If the answer should tend to make a single link in the chain of testimony necessary to involve him in suspicion, he has a right to decline it. The link cannot be perceived by the judges to belong to the chain, without an exposure of every other part of it. Suppose another question were put to him, How do you understand it? He must answer it, as he is to tell the whole truth. Half of the truth is not to be told. Gilbert's Law of Evidence, p. 134. 9 State Trials, 434. Another authority from an able and impartial court, which has been already referred to, shows, that although a question may be apparently innocent, yet a witness is not bound to answer it, if he think that it tends to criminate him. The question was, "What profession are you of?" The

witness was a Roman Catholic priest, and the answer would have subjected him to penalties. The cour t did not know what the question would be, or how it would affect him, but the witness did know. His right to decline the answer was sustained. What question could, on its face, be more harmless than that resisted by that witness? Un less the witness be made the sole judge of answering, the benefit of the rule is lost to him.

If, as I have already observed, the contents of the letter be not of a treasonable nature, it is irrelevar at: we know not the contents of it. Suppose the letter were written by an amorous young fellow to his sweetheart, would it be a proper subject of discussion in this case?

I shall conclude with an admonition, or an humble request, that gentlemen will give us a better op portunity to prepare ourselves for the defence of our rights, by possessing the court with any papers they intend to exhibit and letting us see them. It is a matter of right, that when a paper is offered for any purpose, it should be deposited with the clerk. Heretofore we have been prevented from getting a sight of any paper till the moment of discussion, and then obt ained it, not without difficulty.

Mr. WILLIAMS, counsel for Mr. Wi llie.-I lay down two propositions which I deem incontrovertible: first, that a witness is not bound to criminate himself: secondly, that a witness is from necessity the best judge of the tendency of his

answers.

To support the first proposition, I re fer the court to 1 Mac Nally, 256, 7, 8., Douglas, 590., Goosely's case, in this court, where, I understand, both points for which I contend were established. If a witness admit that he k nows the contents, he is guilty of misprision of treason, and if it only tend to produce that result, he is not bound to answer.

Second, The witness is to be the judge how far he ought to answer. The reason of the rule supp orts this position. It is given for his benefit; it is a privilege for his protection. The other rule of examining witnesses or the voir dire' before they are sworn in chief, is explanatory of this rule. A witness is asked whether he is interested in tl le event of the cause, before he is admitted to give evidence relative to the matter in issue. If the opinion of the person of fered as a witness be, that he is interested, he is rejected as an incompetent witness. If his opinion be to exclude him in civil cases, a fortiori, ought it to exempt him from giving testimony in a criminal prosecution where his personal safety may be in danger? The witness only knows, what will be the answer to the question. The court

cannot know it. It may discharge or criminate him. The witness must tell the court, what his answer will be, before they know it. A bystander who hears him, may be called on to fix guilt on him by his declaration. The interest of the United States cannot deprive him of his right. His saying that he cannot answer without criminating himself is on oath, and if he were to perjure himself upon that point, he would be equally ready to perjure himself on every other point. Whether public justice require an answer, is not the question; but whether the witness ought to be compelled to answer, when he believes it it would criminate or endanger him? To compel him would be a violation of a great and valuable principle of law and justice. No case can be produced wherein it has been adjudged, that a witness is first to say what he does know, and that the court is then to judge of its tendency, whether it will endanger him or not. A man is not bound to produce evidence against himself. 1 Bl. Rep. 37.

Mr. MARTIN. The answer must be, "I do or I do not." Mr. Willie has been considered a secretary of colonel Burr. If he confess that he knew the contents of this letter, and they should prove to be treasonable, his continuing in the service of colonel Burr, will make him a principal in the treason. He may have written to others; the post-offices have been put in requisition.

Mr. HAY-Insinuations ought not to be thrown out against the government without evidence to support them. I am willing to communicate all that I know about that letter. It was transmitted by general Wilkinson, through the hands of Mr. Minnikin, who accompanied Mr. Willie to this place, and it was attached to an affidavit obtained from judge Toulmin. I know not whether Willie ever saw it or not.

Mr. MARTIN. I do not charge general Wilkinson with plundering this letter, but we will hereafter prove, that they have laid violent hands upon the post-office of New-Orleans. They have a paper and know not how they have come by it. The post-office mark on it, is a presumptive proof of the violation of the post-office. Never will I mince the matter. They would not get Willie to decypher this letter if he could; but other witnesses may be used to decypher it, and it may then be evidence against him, if he acknowledge now that he understands its contents. Do gentlemen produce this letter to criminate doctor Bollman? Let him decypher this letter. If other letters are hereafter found, in the same cypher, his acknowledgment, that he can decypher the one, will make him equally responsible for the rest. By this contrivance, he and

doctor Bollman may be made the instruments of their own crimination: the one being used against the other. If a witness refuse to be sworn, he is liable to be committed for a contempt of the court. Salkeld, 270. But there is no instance to be found where the court has committed a witness for a contempt, for refusing to answer a question, which he supposed would criminate himself. Mac Nally, 837. 2 State Trials, 124.

Mr. BOTTS.-It is important to know how the letter was obtained. I wish Minnikin to be examined.

CHIEF JUSTICE.-That is foreign to the present discussion.

Mr. MAC RAE.-The question proposed to the witness is, "Do you understand the contents of this letter?" But, before I proceed to demand the answer, I hope we may congratulate ourselves on the situation in which we are placed. The proceedings clearly evince, that it is not our wish to withhold from the accused any, the slightest means of defending himself; and yet, the present is a spectacle very rarely exhibited in a court of justice. The counsel of the accused aiding the counsel of the witness to prevent him from being examined! I am glad, sir, that counsel is employed for the witnesses, if thereby the accused can be benefited. I am pleased that they have united in his defence. But I have endeavoured, in vain, to discover, whether any thing, which they have advanced, bears upon the point before the court. These gentlemen have widely wandered from it, and I feel deep regret, that they will not confine themselves to the point of law. Henceforth, I hope that they will do so, and abandon this species of warfare, and address the judgment of the court, instead of the prejudices of the multitude around.

Great part of Mr. Botts's remarks are foreign to the point. Instead of reasoning on the subject, and referring to authors in support of his assertions, he has made some strange conjectures, as to what may happen hereafter to Willie, even if the letter were innocent. That his acknowledging, that he had copied it, though its contents be innocent, may expose him, at some future day, to persecution in some distant territory; or, perhaps, doom him to be thrown into confinement into the hold of a vessel. Is not this mere declamation? can it be called argument? Does it bear at all upon the question? His remarks were certainly improper; and, perhaps, it may be improper to answer them. His observations about a distant territory are irrelevant, as are also all he has said about the manner of obtaining the letter. What connexion has this subject with Louisiana or the manner of obtaining this letter?

As to the robbing of the mail, it is all conjecture. Why has VOL. I.

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he not specified the name of the post-office, and the name of the officer? A custom prevails in those post-offices to affix upon a letter the name of the office, printed or written. This impression would have been sufficient to have led to the discovery: but there is none such on the back of that letter. The nonobservance of the custom, in this case, repels their insinuations. As to the figures "25," they occur very frequently on the face of the letter. On the back of it, they may be a cyphered direction or caution to the person for whom it was intended: and this conjecture is as good as theirs.

Mr. Botts says, that the letter must be fraught with treason, or it is not; and that if it be not, it is perfectly irrelevant to the present case. But ought not the fact to be ascertained? Is it not material to the present inquiry that it should? But, says Mr. Botts, "if the letter be material, and Willie confess that he copied it, he will fix a crime on himself." That is not granted, sir. Willie must also understand it. Even if it be treasonable, it was no offence to copy it, unless he understood its contents. He can neither be accused nor punished for it. All that could be said against him would be, that he had ignorantly done an act, injurious to the public, with an intention to benefit an individual.

The authority in Gilbert, 134, cited by Mr. Botts, would apply, if the question were about the credibility of a witness. But that is not the case, and the authority is inapplicable.

They have also quoted a case from 9 State Trials, where a popish priest was permitted to elude a question without answering it. According to the English laws, the witness, if he confessed that he was a roman catholic, was liable to certain disabilities. There it was known to the court, as well as to the witness, that there was such a law, and that by such a confession he would subject himself to its operation. The court, therefore, did not press him for an answer. But here, it is contended, that the witness is alone the judge of the law and the fact; whether he ought to answer or not: for both the law and fact are included in the privilege, which they claim for the witness. In the cases cited by them, the court did understand the subject, and saw the danger of the witness: but here, the subject is not understood by the court; and the right of judging, whether the witness be in danger or not, is denied them. Mr. Martin cited authority in support of this principle: that courts had punished a witness for a contempt in not taking the oath, but never where he refused to answer in cases in which he might criminate himself. A court has always a right to understand the ground on which a witness refuses to answer, and every man is liable to give testimony, unless he come within certain exceptions; and in those cases, he must show some law or authority to jus