he had no control over this vessel at this time. It was natural that general Wilkinson should have offered a passage to the witnesses, if they chose to come in the same vessel that he came in himself. He manifested the same disposition when he came to Hampton. He got a vessel for their accommodation and its cheapness. It only proves his humanity and his disposition to oblige them, and make their passage as comfortable as possible. Yet, said Mr. Randolph, with an increased emotion, and elevation of voice, that would have surprised me if I had not known his object, "why were subpoenas sent to him, if not to be used with military authority?" Suppose it was correct, that the attorney general had sent a number of subpoenas with a view to be used with military authority, and that the commander in chief receives them. What does he do? What would any man suppose he would do, or had done, if he were to form his opinion from what has been said of his character here? He would suppose that he had called about him his janizaries and his mamelukes; that he had sent one detachment to one part, and another to another, through the whole country, to search for, and seize all persons, who had the misfortune to be witnesses; that this military despot had sent out his myrmidons and military men, and without any regard to law or justice, had seized, confined, and transported as many as his arbitrary caprice required. This, and worse he would have done, if his character were such as it has been depicted. But what did this mighty lord of the west do, with all these witnesses? He gave the subpoenas to Mr. Gaines to serve them, and told him, that if there should be any difficulty, to apply to a lawyer for advice how to act. And this is the mighty complaint against Wilkinson and Gaines!

Do gentlemen think that they make a favourable impression on the public mind, when things in themselves so innocent, are represented as acts of the highest enormity? When things so white are thus discoloured? If they do, they are mistaken in all their calculations.

But sir, general Wilkinson is guilty again, because he ventured to ask Knox, if he were not afraid after what had happened. After what? "After I have arbitrarily seized and sent people to a great distance." What right had Mr. Randolph to put these things in his mind, or these words into his mouth? I will venture to say, that they do not express his real intention. It is obvious that his meaning was, "Are you, who are an associate of Burr, and have been of his party, not afraid to appear before me?" I will ask, whether it be right to ascribe to general Wilkinson sentiments which are not his own, and then to condemn him for the sentiments thus improperly imputed to him? Yet, this is the deplorable necessity to which gentlemen are driven!

Mr. Randolph says, that Burr and Wilkinson are antipodes to one another. Indeed they are; but in what sense they are so is a consideration which I need not mention.

But, says Mr. Randolph, " it is the intention of Wilkinson to ruin Burr. He must perish unless the other fall." We were charged with going too far, in drawing unauthorised conclusions and inferences; but Mr. Randolph has gone much further than any of us, and has substituted assertion for proof. He has stated, what is an unsupported assumption, that the reputation of Wilkinson depends on the destruction of Burr. I will not retort the charge; but I will say, that it is more important to Burr to destroy Wilkinson's reputation. He knows how important it is to the accused to batter down the reputation of general Wilkinson. The accused knows it, and professes it by his conduct; because, from the commencement of the prosecution till this time, the object of every step taken, and motion made, was to beat down the character of general Wilkinson: but if they were to accomplish it, it would be the same to their client; it could not save him. But they would say, that if it would not be victory, it would at least be revenge. The argu. ments of Mr. Randolph are so irrelevant, and the cases he adduced so inapplicable, though plain and not denied by us, that I shall not take up time to worry myself and the court, in proving points which are too plain to admit of controversy; but I will trouble the court with a few more observations, without noticing his law authorities. I shall boldly contend, that there was not only not a single precedent among them, but that there was not even the least justification for the present motion; that they have no real bearing on the subject. They were either general principles, which are not denied, but which do not apply to this subject, or relate to the conduct of the officers of the court, in serving criminal and other process. But he stated with great solemnity, that "any force to swerve a witness from the right statement of facts, was illegal and improper." In order to apply this, he is obliged to put down his own witness. The objection is, to the taking testimony from the witness. But the witness said, that there was no coercion used in taking his evidence; on the contrary, that he was treated with courtesy. The objection operates equally against them; for they have taken his affidavit in this city. Admitting there was no degree of terror or force used. This has no sort of application.

But Mr. Randolph says, that "no force is to be used in getting a witness to attend." This is not law. If the accused had been committed in the same district where the witness resided, and the judge had sent forward the accused, he would have been authorised to compel the witness to come, and if he did

not enter into a recognisance, he would have put him in gaol. The spirit of the law is, that a witness who is material, and refuses to enter into a recognisance, may be removed by force. These are the provisions of the act of congress. Force may be and is used. The law directs that it shall be used. But the po sition, if it were correct, does not apply to general Wilkinson, because he did not bring the witness.

It was said by Mr. Randolph, that it was a "most dangerous power in any government, to extort testimony ex parte." Is general Wilkinson responsible for all illegalities committed in the western country? Mr. Jackson, they say, has been guilty of great impropriety in taking evidence. But notwithstanding this blame, which they so eagerly attempt to attach to general Wilkinson, he has not taken any evidence at all. All he did, was, to make inquiry and take notes of Knox's evidence. But they ask why were these notes taken? To satisfy his own mind, that he was a material witness.

But there was one observation which Mr. Randolph used, with great warmth and solemnity, that "a citizen of the United States was thrown into gaol by corporal force, and transported for the crime of being a witness." Is it not surprising, that they take such ground as this? Is it not strange to hear gentlemen of great experience, who have been intrusted with the management of important business, gravely speaking in this way? to hear Mr. Randolph say, that "a citizen has been thrown into gaol and transported?" These are sounding and imposing words. Does not the court know, that these are things that may be done by law? The court well knows, that under the law of congress it is the business of a judge to recognise witnesses, and if they refuse to enter into a recognisance, or fail to attend, to commit them and transport them by land or water, as may be most convenient, to the place of trial. Is not this power expressly given by the words "it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute a warrant for the removal of the offender and the witnesses or either of them, as the case may be to the district in which the trial is to be had?"

Mr. Randolph, without a single tittle of evidence, and without any principle of law to support him, prays in vain for a favourable decision. All the authorities which he introduced are extremely vague; they do not show, in the smallest degree, that the facts alleged, if proved, would amount to a contempt of the court. Superadded to all this long catalogue of black crimes, you are told, with great solemnity, that a citizen of a free country has been transported by military authority; not for a violation of the laws of his country, but because he was a wit

ness. Sir, I will not animadvert on his mode of conducting a cause; I will only remark, that those observations, when made, were introduced with the utmost solemnity, expressed with the strongest and most forcible voice, heard by every person within the walls of this house, and were certainly intended by the speaker to excite indignation against general Wilkinson, and sympathy for the accused; and after all, it amounts only to this, that a witness may be compelled to attend, if he do not do it voluntarily.

The next observation was urged with precisely the same view. He seems to tremble when he fancies, that he sees the prostration of all our rights and of our independence; when with uplifted hands and eyes, and elevated voice, he tells you of the military sporting with the rights of the citizens! If it were mere sport, he need not be so much alarmed. But what was this military sport, against which he so loudly declaimed? It was simply this, that a captain, with the permission of his general, and after a deputation by the marshal, served a subpœna on a witness, and brought him with him, being himself a witness and obliged to come! I am not surprised, that gentlemen wander from the point, because otherwise there would be very little ground for them to stand upon.

He talks of the robbery and plunder of the post-offices. For what purpose? Suppose the fact to be as it is assumed without the slightest proof. Let general Wilkinson, or any other person, who has committed the act, be prosecuted according to law. Let the parties injured apply to the law, and the parties who are guilty be punished. But though the acts thus ascribed to general Wilkinson were clearly proved, they could not be considered as a contempt of the court. Every thing is ascribed to general Wilkinson, in order to furnish a sort of pretext for denouncing him to the world.

Being fatigued myself, and believing the court to be so also,. I shall not trouble it with any further observations. I trust that the court will render a correct judgment, according to the evidence and law.

While Mr. Hay was speaking, the grand jury entered, and their foreman, Mr. Randolph, addressed the court to the following effect:

May it please the court:

The grand jury have been informed, that there is in the session of Aaron Burr a certain letter, with the post mark of May 13th, from James Wilkinson, in cyphers, which they deem to be material to certain inquiries now pending before them. The grand jury are perfectly aware, that they have no right to demand any evidence from the prisoner under prosecution,

which may tend to criminate himself. But the grand jury have thought proper to appear in court to ask its assistance, if it think proper to grant it, to obtain the letter with his consent.

Mr. BURR rose, and asked whether the court were about to give an opinion?

The CHIEF JUSTICE stated, that the court was about to say, that the grand jury were perfectly right in the opinion, that no man can be forced to furnish evidence against himself: he presumed that the grand jury wished also to know, whether the person under prosecution, could be examined on other questions, not criminating himself?

Mr. BURR declared, that it would be impossible for him, under certain circumstances, to expose any letter which had been communicated to him confidentially; how far the extremity of circumstances might impel him to such a conduct, he was not prepared to decide; but it was impossible for him even to deliberate on the proposition to deliver up any thing which had been confided to his honour; unless it were extorted from him by law.

Mr. RANDOLPH.-We will withdraw to our chamber, and when the court has decided upon the question, it will announce it to the grand jury.

The CHIEF JUSTICE knew not that there was any objection to the grand jury calling before them and examining any man as a witness, who laid under an indictment.

Mr. MARTIN said there could be no objection.

that

Mr. RANDOLPH said, he was afraid that the object of the grand jury had been misunderstood by the court. The grand jury had not appeared before the court to apply for the person of Aaron Burr, to obtain evidence from him, but for a certain paper, which might or might not be in his possession; and upon paper being or not being in his possession, and upon its being possible or not possible to identify that paper, it might depend, whether Aaron Burr himself were or were not a material evidence before them. And then the grand jury withdrew.

When Mr. HAY had concluded his argument, Mr. MAC RAE addressed the court. He was solicitous, he said, to lay a communication before it, on a circumstance, which had lately transpired. The grand jury had asked for a certain letter in cyphers, which was supposed to have been addressed by general Wilkinson to the accused. The court had understood the ground on which the accused had refused to put it in their possession; to be an apprehension lest his honour should be wounded, by his thus betraying matters of confidence. I have seen general Wilkinson, sir, since this declaration was made. I have informed him of the communication which has thus been made; and the