the principle is the same here. Gentlemen have no right to introduce testimony when we apply for the rule, but after it is granted, and they come forward to show cause against issuing the attachment; then they have an undoubted right to adduce what testimony they think proper, to show that it ought not to issue. But gentlemen say, that granting the rule may possibly tarnish the reputation of general Wilkinson. He may, on showing cause against the attachment, come forward in vindication of his character. We have no right to bring testimony in our exculpation before the grand jury, where indictments and accusations, committing our character and as materially injuring us as he can be by this motion, are exhibited. Were we to attempt it, their answer to us would be, “ You are irregular; you can introduce no evidence before the grand jury, and if they find any bill against you, you can wipe off the impression made by their finding, in the usual and regular manner." As this is the way in which we wipe off the impression of what is before the grand jury, so he can wipe off the effect of granting the rule, on showing cause.

Mr. BURR.-It is not my wish to prevent gentlemen from producing testimony in behalf of general Wilkinson, or to prevent his witnesses from being heard; but this can be done by introducing their affidavits. I object only to the innovation of examining them personally on collateral motions like this, instead of reading their affidavits.

Mr. HAY.-It seems to be conceded that general Wilkinson may produce testimony in his part. He has been three hours before the grand jury, and in a very short time he may be discharged and appear in court. It is singular that we should, by their own concession, have the right to appear and interrogate witnesses after the rule is made, and yet not at this stage of the proceedings, when we are present to contest it. The party on whom such a rule is usually made, is absent; and the object of it is, to bring him forward and to show cause, if he can, why he should not be attached for his supposed misconduct. No opposition is usually made, because the party happens to be at a distance; yet if he be on the spot, as in the present case, there could be no sort of reason or justice in preventing him from showing at once that the charges against him are perfectly visionary and groundless.

Mr. WICKHAM stated the importance of immediately proceeding with the motion; and that, according to law and practice, there was no just ground of opposing it; but that if the counsel on the other side would name a particular hour in the course of this day, when the motion would be made, they would waive their right of going on with it now.

Mr. MARTIN hoped, that the court would express in its order, that this postponement was not in consequence of the right of the gentlemen to demand it, but of the consent of his friend.

CHIEF JUSTICE said, that it was unnecessary to do so. He stated what the law and practice were, and observed, that if the motion were to be postponed till Monday, and the witnesses on both sides were then heard, it would answer every purpose; and it might be considered then as a motion for an attachment, not for a rule to show cause. This would prevent disputes and delay. Mr. RANDOLPH.-We shall move then immediately for an attachment.

Mr. MAC RAE observed, that they only wished the motion delayed till general Wilkinson could be permitted to attend. Mr. HAY wished, that in order to save time, gentlemen would prepare their interrogatories, by reducing them to writing.

Mr. MARTIN said, that this could not be done till it was determined that an attachment would go; but that there would be no delay on that account.

The examination was then postponed till Monday; and the court adjourned till that day, at eleven o'clock.

MONDAY, June 22d, 1807.

The court met according to adjournment.

Mr. RANDOLPH, having directed James Knox and Chandler Lindsley to be called, was proceeding to open the motion which he had introduced on Saturday

Mr. MAC RAE had understood that this motion was to be postponed till general Wilkinson could be present; and that the moment he was discharged from the grand jury, they should notify the opposite counsel of it.

CHIEF JUSTICE said, that as this was a motion for an attachment against general Wilkinson, he ought to be heard in his defence.

Here a desultory discussion took place.

Mr. BOTTS observed, that from a spirit of accommodation, they had agreed on Saturday, to postpone their motion till this day; but it was in certain expectation that general Wilkinson would be here to-day, and that their motion would be no longer delayed; that if they consented to further delay, it might take several days before the general would be discharged from the grand jury; that though he was not present himself, he was ably represented by counsel, and that considering the hardships and inconvenience imposed on colonel Burr, by such delays, he hoped VOL. I. 2 L

that they would now be permitted to proceed in their motion for an attachment, or a rule to show cause.

Colonel BURR enforced the same principle. He was unwilling to contravene the opinion or wishes of the court; but the subject required a few remarks. On Saturday, he had waived his rights; he had consented to vary the motion, to give general Wilkinson an opportunity to be present, under an expectation that he would be here on this day, and that the motion would certainly be made; but he asked, whether his consent was to be indefinitely extended to any period? It was then in his power to vary the form of the motion once more: but notwithstanding the inconvenience it would occasion to himself, he was ready to waive his motion for the present, if they would but name a certain time to-morrow, when they would be certainly ready.

Mr. WIRT declared that it was impossible for them to say, when the grand jury would finish the examination of general Wilkinson; before which time he could not come into court. We would have thanked gentlemen for the accommodating spirit which they had manifested, if they had not completely wiped away the obligation, by converting it into a topic of reproach. If the rule were granted, general Wilkinson would still be before the grand jury, who would not spare him to the court.

The CHIEF JUSTICE said, that the court would have conceiv ed itself bound to hear the motion for the rule, as it was a motion of course; but now it was varied, partaking of a motion for a rule to show cause, and of one for an attachment. That if general Wilkinson should be in court to-morrow, the motion might go on; that it was not certain that he would be present; but that the testimony of colonel Burr could not be delayed longer than till to-morrow; and that general Wilkinson could cross examine those witnesses when he came into court.

Mr. HAY stated, that this was the very circumstance which they wished to avoid; that those witnesses were brought hither to accuse general Wilkinson, and that he ought to be present to shape his inquiries according to their evidence, and to expose their fallacy.

CHIEF JUSTICE.-General Wilkinson cannot cross examine them till colonel Burr have done with them.

Mr. HAY.-How can general Wilkinson know what questions to put, if he know not what testimony has been given by those witnesses?

CHIEF JUSTICE.-All the questions put to them, and their answers, will be reduced to writing.

Mr. HAY was unwilling that gentlemen should believe that he wished to waive the discussion for a single moment. Perhaps

the grand jury would spare him for an hour. He understood that he was then employed in decyphering a letter before them. He suggested that a messenger should be sent up to the grand jury, requesting them to spare him for an hour, if it were compatible with their arrangements.

The marshal was accordingly sent to deliver the message, who returned and informed the court, that general Wilkinson was at that moment under examination. The motion was accordingly postponed till to-morrow, when it was understood that it would certainly be made.

The CHIEF JUSTICE observed, that the attorney for the United States might state to general Wilkinson, the facts which were charged in the affidavit, and which would agree in all the most material points with the interrogatories that would be proposed to the witnesses.

The court adjourned to the usual hour of adjournment.

TUESDAY, June 23d, 1807.

The court met according to adjournment.

General Wilkinson appeared in court, and took his seat among the counsel for the United States.

Mr. BURR rose and observed to the court, that as general Wilkinson was then present, he would proceed with his inquiry. He would have it, however, distinctly understood, that if the charge could not be brought home to general Wilkinson himself, so as to support the motion against him, yet it must attach according to the testimony, to any of his subordinate officers, as Mr. Gaines, or any other.

Mr. HAY objected to this extension of the motion, which he had understood to be confined to general Wilkinson alone; particularly as they had not given any intimation of such an intention before: As no other person had notice of this intended motion, but general Wilkinson, the inquiry should be restricted to him alone.

Mr. RANDOLPH insisted that the evidence to be introduced in support of their motion, must attach to general Wilkinson, or any of his subordinate officers, or any other person, according to what the witnesses should prove. Before the witnesses were examined, he stated briefly the nature of their motion and the substance of the testimony by which he expected to support it. That the charge against general Wilkinson was, that he had, in conjunction with others, used unlawful and oppressive means, under colour and in abuse of the process of this court, to bring James Knox and Chandler Lindsley from New-Orleans to this city; and thus had obstructed the free course of testimony, and the fair and regular administration of justice; and he hoped, that if the evidence would prove the facts as he expected, the court

would punish him, his associates, dependents, or others, according to the degree of their misconduct.

The witnesses were then introduced. James Knox was first sworn. His testimony was as followeth:

He says, that he went to New-Orleans some time in March; soon after his arrival, he received a note from general Wilkinson, making some inquiry concerning serjeant Dunbaugh. He waited on the general, who received and treated him handsomely, took him by the hand, and asked him if he were not afraid after what had happened, and what had been said about him. He told him he was not afraid. He asked him, whether he were at liberty to reveal what occurred in coming down the river? The witness said he was at liberty to reveal what he knew; but did not wish to do so. He inquired whether the witness were a freemason? He then began to take notes. The witness stopped him from taking down, and told him it was not his wish to have what he said taken down. He complained of distress; expected to be ruined. Said that there was a great force coming down the river. He asked the witness his circumstances; what money was due to him for his services in coming down? He answered, one hundred and fifty dollars. Asked him if he were in want of money, and offered to supply him, which the witness refused. He said he was very unhappy; had lost his wife; but all that was nothing to his trouble on account of the state of the country. The witness said that a subpœna had been served on him about the 12th of May, by Mr. Gaines, to attend this court; that he told him he was not prepared to come round then, but he expected to get money in ten or twelve days, and would then be ready. He went to Gaines's office about four days afterwards; was taken by a sheriff on Sunday evening, who took him to judge Hall's. The judge was from home. He went again, and was told by the judge that he must give his deposition, or go round to Richmond. He answered, that he had no objection to going to Richmond; but having no counsel, would not give his deposition, lest he should commit himself. No person but the sheriff was present. The governor desired the sheriff to take his word, if the judge could not be found: saw the judge, and was bailed until eleven o'clock; gave two securities, bound in five hundred dollars each, to avoid being put in gaol. When he appeared, the judge had before him a number of printed interrogatories. The witness asked the liberty of reading them. He permitted him to do so. The judge asked him if he would answer. The witness refused until he had counsel; but offered to be placed in confinement until he could procure counsel. He afterwards saw, as his counsel, Mr. Carr, who informed him that the judge had no right to demand such answers. The judge still persisted to interrogate him, to some of which interrogatories he answered, in order to save trouble. The witness then related every thing that passed,