SATURDAY, June 20th, 1807.

The court met according to adjournment. Present, the same judges as yesterday.

Mr. Randolph rose to proceed with his motion, when he was interrupted by Mr. HAY, who spoke to this effect:

I have a communication to make to the court, and to the counsel of the accused. The court will recollect the answer which I received from the president, to my letter respecting certain papers. He stated in that letter, that general Wilkinson's letter of the 21st October had been delivered to Mr. Rodney, the attorney-general, from whom he would endeavour to obtain it. By the last mail I have received this letter from the president on the same subject.

SIR,

Washington, June 17th, 1807.

In answering your letter of the 9th, which desired a communication of one to me from general Wilkinson, specified by its date, I informed you in mine of the 12th, that I had delivered it, with all other papers respecting the charges against Aaron Burr, to the attorney-general when he went to Richmond; that I had supposed he had left them in your possession, but would immediately write to him, if he had not, to forward that particular letter without delay. I wrote to him accordingly on the same day, but having no answer, I know not whether he has forwarded the letter. I stated in the same letter, that I had desired the secretary at war to examine his office, in order to comply with your further request to furnish copies of the or ders which had been given respecting Aaron Burr and his property; and, in a subsequent letter of the same day, I forwarded to you copies of two letters from the secretary at war, which appeared to be within the description expressed in your letter. The order from the secretary of the navy, you said you were in possession of. The receipt of these papers has, I presume, so far anticipated, and others this day forwarded, will have substantially fulfilled the object of a subpoena from the district court of Richmond, requiring that those officers and myself should attend the court in Richmond, with the letter of general Wilkinson, the answer to that letter, and the orders of the department of war and the navy therein generally described. No answer to general Wilkinson's letter, other than a mere acknowledgment of its receipt in a letter written for a different purpose, was ever written by myself or any other. To these communications of papers, I will add, that if the defendant suppose there are any facts within the knowledge of the heads of departments, or of myself, which can be useful for his

defence, from a desire of doing any thing our situation will permit in furtherance of justice, we shall be ready to give him the benefit of it, by way of deposition through any persons whom the court shall authorise to take our testimony at this place. I know indeed that this cannot be done but by consent of parties, and I therefore authorise you to give consent on the part of the United States. Mr. Burr's consent will be given of course, if he suppose the testimony useful.

As to our personal attendance at Richmond, I am persuaded the court is sensible, that paramount duties to the nation at large, control the obligation of compliance with its summons in this case, as it would, should we receive a similar one to attend the trials of Blannerhasset and others in the Mississippi Territory, those instituted at St. Louis, and other places on the western waters, or at any place other than the seat of government. To comply with such calls, would leave the nation without an executive branch, whose agency nevertheless is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not, then, intend that it should be withdrawn from its station by any co-ordinate authority.

With respect to papers, there is certainly a public and private side to our offices. To the former belong grants of lands, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary, that, for the advantageous conduct of their affairs, some of these proceedings at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interest will permit publication. Hence under our constitution, in requests of papers from the legislative to the executive branch, our exception is carefully expressed, "as to those which he may deem the public welfare may require not to be disclosed," as you will see in the inclosed resolution of the house of representatives, which produced the message of January 22d, respecting this case. The respect mutually due between the constituted authorities in their official intercourse, as well as sincere dispositions to do for every one what is just, will always insure from the executive, in exercising the duty of discrimination confided to him, the same candour and integrity, to which the nation has in like manner trusted in the disposal of its judiciary authorities. Considering you as the organ for communicating these sentiments to the court, I address them to you for that purpose, and salute you with esteem and respect.

TH: JEFFERSON.

Accompanying this letter is a copy of the resolution of the house of representatives, containing the exception to which the president refers. I have also received a letter from Mr. Smith, secretary of the navy, containing an authentic copy of the order which was wanted, precisely corresponding with the unauthenticated copy in my possession.

Mr. WICKHAM.-I presume that these must be considered and noted as the return to the "subpoena duces tecum."

Mr. HAY.-So far as they go. When we receive general Wilkinson's letter, the return will be complete. I have also received a letter from the secretary at war, which contains all the orders of his department relative to Aaron Burr. All which papers I shall deposit with the clerk of this court.

The following is the order of the navy department:

I certify that the annexed is a true copy from the records in the office of the department of the navy of the United States, of the letter from the secretary of the navy, to captain John Shaw, dated 20th December, 1806.

In faith whereof, I Robert Smith, secretary of the navy of the United States of America, have signed these presents, and caused the seal of my office to be affixed hereto, at the city of Washington, this 17th day of June, anno Domini, 1807; and in the 31st year of the independence of the said States.

(Registered,)

Ch. W. Goldsborough,

Ch. Clk. N. D.

SIR,

(Copy)

RT. SMITH. Secretary of the Navy.

Navy Department, 20th December, 1806.

A military expedition formed on the Western waters by colonel Burr, will soon proceed down the Mississippi, and by the time you receive this letter, will probably be near New-Orleans. You will by all the means in your power, aid the army and militia in suppressing this enterprize. You will with your boats take the best position to intercept and to take, and if necessary, to destroy the boats descending under the command of colonel Burr, or of any person holding an appointment under him. There is great reliance on your vigilance and exertions. I have the honour to be, sir, your most obedient, RT. SMITH:

Captain John Shaw,

(Signed)

or the Commanding Naval Officer,

at New-Orleans.

Mr. RANDOLPH.-May it please your honours:

I am now about to commit to your attention the motion of which we gave notice some days past. The general purport of it will be, to award a rule against general Wilkinson, to show cause, why an attachment should not issue against him for attempting to obstruct the free administration of justice. Whether we shall be again charged with an intention to inflame the public mind against general Wilkinson, or to defame him, I know not; but of one thing I am conscious, that my object is essentially different. We do not proceed on mere general surmise; but on plain facts. We shall endeavour to remove all the prejudices which have been excited, and shall rely on plain facts only. We hope to guard the public mind against erroneous impressions, by depending on correct evidence alone; and that it will be manifest to all, that every effort to obstruct the free will of a witness should be punished. If general Wilkinson's character should be incidentally affected, it will not be our fault. If he must take upon himself the legal consequences of his own improper conduct; if he must submit to legal doctrines; he cannot complain. It is due to the United States, to the witnesses themselves, and to the persons accused, that obstructions to the free administration of justice should not pass with impunity. Sir, we shall attach general Wilkinson on specific allegations, and by specific facts. It is his duty, if he can, to repel these by legal evidence; not by illegal testimony, or the protestations of his counsel, that they believe him to be innocent, and an Israelite without guile. I prefer this course, that there may be no more waste of time in passing eulogies on general Wilkinson. There will be a future occasion which will require the concentration of all his lustre, and it will be as well that the beams of his glory should not be dissipated till we make the attack that will strike home.

The ground on which we make the motion is this, that general Wilkinson, who is now before the court, in a case depending between the United States and Mr. Burr, deliberately abused the process of the law relative to a witness who has been summoned in this case. He contrived, on his own affidavit, and by his own power, to obstruct the free course of legal testimony, and to intimidate, and coercively bring to this court, a witness, by the abuse of military authority. For this illegal proceeding it is the duty of the court to take notice of general Wilkinson. As the cases ought to be kept distinct, I speak of him only; but it may be necessary to carry the principle into immediate execution as to other persons. The grounds of this accusation are the depositions of James Knox and Chandler Lindsley, which will be read to the court. 2 K

VOL. I.

Mr. HAY objected to the introduction of these affidavits, because he understood that they had been written and dictated by the counsel of colonel Burr. He did not pretend to say, that they contained any thing which they did not believe to be true, nor did he know their contents; but he understood, that they were introduced for the purpose of strengthening some testimony concerning general Wilkinson, or of showing improper conduct on his part; that he understood, that those witnesses had voluntarily gone and given information to the counsel, upon which the counsel had written or dictated the terms of those affidavits; that his idea was, that when affidavits are taken by the opposite counsel, though the court may be perfectly satisfied with the conduct of the counsel in taking them, yet according to universal practice the court would not permit them to be read; that the legal authorities showed, that a court would never issue an attachment founded on affidavits taken by the agent or attorney of the party applying for it; that this court would admit of no exceptions to this rule; the court of king's bench determined that "it was invariable and founded on the wisest and most obvious principles." Mr. Hay here cited the case of the King v. Wallace, in 3 Term Rep. p. 403., where the court had set aside an affidavit that had been sworn to before the attorney for the prosecution, and refused to grant an attachment; that the present case was stronger than that. The objection in that case was, that it was sworn to before the counsel; the objection here is, that it is penned by the counsel, and is therefore stronger and more within the scope of that policy on which the principle of the law is founded; that however he did not mean to reproach gentlemen for the course pursued in this instance; that he was sure that nothing like impropriety was thought of by them, and that perhaps he would have done the same thing in their situation.

Mr. BAKER. May it please the court. I shall not undertake to say, what Mr. Hay would have done in our situation, nor do I feel much interested in knowing; but I rise solely for the purpose of correcting a mistake, which he has committed. He says, that these affidavits were originally written by colonel Burr's counsel. As to the affidavit of Knox, I know I can say nothing; but as to the affidavit of Lindsley, it was written by himself. The facts are simply these: He called upon me with his affidavit already written, (I had never seen him before) to know whether it were correctly written or not. I read it, corrected some inaccuracies in the style, and wrote it over again: it was not sworn to when brought to me. After I had corrected those grammatical errors, and submitted it to Mr. Lindsley's inspection, he said that the statement was perfectly correct.