general has expressed his wishes to me, and requested me to express those wishes, that the whole of the correspondence between Aaron Burr and himself, may be exhibited before the court. The accused has now therefore a fair opportunity of producing this letter: he is absolved from all possible imputation; his honour is perfectly safe. Mr. BURR.-The court will probably expect from me some reply. The communication which I made to the court, has led, it seems, to the present invitation. I have only to say, sir, that this letter will not be produced. The letter is not at this time in my possession, and general Wilkinson knows it. Mr. MAC RAE hoped that notice of his communication would be sent to the grand jury. Mr. MARTIN hoped that colonel Burr's communication also would go along with it. The CHIEF JUSTICE was unwilling to make the court the medium of such communications. Mr. MAC RAE hoped that the court would notify his communication to the grand jury, and for an obvious reason. When the grand jury came into court to ask for the paper, what did the accused say? Did he declare that it was not in his possession? No: he merely said that honour forbade him to disclose it. The inference undoubtedly was, that he had the paper, but could not persuade himself to disclose it. And what then must have been the impression of the grand jury? A cloud of suspicions must have fastened itself upon their minds; suspicions unjustly injurious to the character of general Wilkinson; and which the present communication may at once disperse. It is but justice, therefore, to general Wilkinson, to whom the inquiries of the grand jury may at present relate, to give them the benefit of this information. Mr. BURR.-General Wilkinson, sir, is extremely welcome to all the eclat which he may expect to derive from this challenge; but as it is a challenge from him, it is a sufficient reason why I should not accept it. But as the remarks of the last gentleman seem to convey some reproach against me, (which no man who knows me can believe me to deserve) it may be proper to say, that I did voluntarily, and in the presence of a witness, put the letter out of my hands, with the express view, that it should not be used improperly against any one. I wished, sir, to disable any person, even myself, from laying it before the grand jury. General Wilkinson knows this fact. The CHIEF JUSTICE then reduced these communications to writing, and transmitted them to the grand jury. Mr. BURR.-Let it be understood, that I did not put this letter out of my possession, because I expected the grand jury would take up this subject; but from a supposition that they might do so. Mr. WICKHAM, about to speak, was interrupted by the entrance of the grand jury; when Mr. Randolph their foreman, informed the court, that they had agreed upon some presentments; which he then delivered into the hands of the clerk. The clerk read as follows: The grand inquest of the United States, for the district of Virginia, upon their oaths, present, that Jonathan Dayton, late a senator in the congress of the United States, from the state of New-Jersey; John Smith, a senator in the congress of the United States, from the state of Ohio; Comfort Tyler, late of the state of New-York; Israel Smith, late of the state of NewYork; and Davis Floyd, late of the territory of Indiana, are guilty of treason against the United States, in levying war against the same; to wit, at Blannerhasset's island, in the county of Wood, and state of Virginia, on the 13th day of December, 1806, Upon the information of William Eaton, Samuel Moxley, Benjamin H. Latrobe, Erick Bollman, James Kinney, JOHN RANDOLPH, foreman. The grand jury, continued Mr. Randolph, have no farther presentments to make. He then delivered two papers which they had received from the court. The one was a cyphered letter, addressed to H. Winbourn; the other was the letter to colonel Morgan. CHIEF JUSTICE.-Mr. attorney, have you any thing more for the grand jury? Mr. HAY.-I can have all the indictments ready to be laid before them to-morrow. Mr. Taylor (from Norfolk). Is it not customary for the attorney to file informations upon these presentments? Is there any necessity for detaining the jury? Some objection was made. Mr. Randolph. May not the bills be laid before another grand jury, as the parties presented are not now in custody? Mr. HAY.-That course would be productive of great inconvenience. All the witnesses are now here; and they will not, perhaps, appear before another grand jury, and the present jury are already in possession of all the evidence. Mr. Randolph had hoped, that they would be discharged. He was not anxious on his own account, but there was one of the jury peculiarly and delicately situated; who wished to return to his family. Mr. Taylor observed to the court, that a very afflicting circumstance, of a domestic nature, made him peculiarly anxious to return home. Mr. HAY was extremely sorry that he could not gratify the wishes of the jury; but the interest of the United States forbade him. He would have the indictments ready at any hour in the morning, that the jury would name. Nine o'clock was mentioned, and the jury were then adjourned to that hour. Mr. WICKHAM then addressed the court to the following effect: I should envy the gentleman, last up, the peculiar felicity of never being in the wrong; and that happy ductility of judgment, which enables him to apply other gentlemen's arguments to suit his own purposes, and to view every thing on his own side as perfectly clear. The praise of general Wilkinson is his great object. His pure virtue and disinterested patriotism constantly excite his utmost zeal, and form the theme of his finest eulogies. Of this object he has never lost sight; but his own argument did not make much impression on his own mind: the farther he went on, the weaker it was. Whether this were produced by some supervening doubts on the subject, or because what is deemed clear requires no argument, I will not undertake to determine. It would however save much time if the gentleman would introduce a short formula, referring to his former arguments in praise of general Wilkinson, instead of perpetually repeating them. On what ground has the gentleman on the other side gone to argue so elaborately and zealously, if he think the case so perfectly plain? If it were so perfectly clear as he affects to consider it, why did he address so long an argument to the court? Did he believe so much labour necessary to satisfy the minds of your honours that the case was so very plain? But, waiving all these considerations, I mean to confine myself to the point. It is to the court and the court alone, that I mean to address myself. The gentleman on the other side insists, that we have made no specific charge against general Wilkinson. We cannot help it if he do not understand us; but we have stated a specific charge in terms as plain, as any in the English language. If he do not comprehend it, perhaps it is because our arguments have not as much weight with him as his own. It is extremely difficult to conquer prejudice. Our charge is, that there have been acts in the highest degree illegal, done by general Wilkinson, under colour of the process of this court; that a citizen has been dragged by military force one thousand two hundred miles, for the crime of being a witness,and having a subpoena served on him. We contend, that this is a direct invasion of the liberty of the citizen; an abuse of the process, and a contempt, of the court; and deserves a most severe punishment, if we can bring it home to general Wilkinson, of which we have no doubt. We have supposed, that the judge's warrant was merely a void act; because it was illegal. We have supposed, that calling on the judge, an officer without authority, to make out a warrant, which was neither legal in form nor substance, but a mere attempt to give the semblance of legality to what they knew to be illegal, was an aggravation of the offence. Gentlemen say, that it was only a judicial act, in which a judge may be mistaken, without being liable for his mistake. Will the gentlemen contend, that an illegal warrant, issued by a magistrate having no authority to act, can have any effect? Whatever he does, without having jurisdiction, is void, and has not the least validity: if he err, his mistakes are not excused. But if he have jurisdiction, and a right to act on the subject, he is not responsible for errors of judgment. There is nothing better settled, than that distinction between cases where a magistrate has authority to act, and cases where he has not. In the former, his mistakes of judgment are excused; but in the latter, he is personally responsible for his acts, and his misconception of the law does not in the least excuse him. Another observation is, that in the lowest as well as in the highest offences, all are principals. Every person concerned in an illegal act is equally guilty, in the eye of the law, with the person most active. The question then arising on this particular case, is, whether this act of violence, this abuse of the process of this court, were procured or aided by general Wilkinson, or were assented to by him; either before or after the imprisonment complained of? If he acquiesced in the mischief done, or assisted in it, he is as guilty as if he had first contrived it. Every person who assents to, or aids in, the completion of an illegal act, is a trespasser ab initio. Instead of wandering into the wide field of declamation, to palliate or justify those illegal acts, gentlemen ought candidly to have said, "We admit the guilt of those inferior agents, by whom the acts were committed, but we insist that general Wilkinson is innocent." No sir, not choosing to rely on his innocence, they undertake to show, that the act itself, if not innocent and justifiable, is at least excusable; and they censure us for making this motion, as if we had no interest in it. They tell us, that "the United States have not been injured, and make no motion." Sir, if the officer of the United States do not choose to resent this indignity to the court, which goes to sap the foundation of justice, is that a reason why the party injured should not lay it before the court? This is the cause of the United States; it is the cause of every man who comes forward as plaintiff or defendant. Every man feels an interest to keep the fountain of justice pure and uninterrupted. They ask, was the witness brought here to speak truth?" I hope this man did say the truth. I am sure he did say the truth; because the witnesses they relied upon, to exculpate general Wilkinson, proved, that every thing he said was true. They confirmed not only all he said, but supplied every omission in his chain of evidence. But sir, has fear no effect? Has it no operation on the human mind? If this man had nerves strong enough to bear such treatment, are we sure that the fortitude of others will not be shaken? If the court sanction the practice of bringing witnesses to the bar as criminals, will it not have the practical effect, in many instances, of preventing impartial evidence? Can we expect from a man dragged as a felon, that manly disclosure of facts, which distinguishes a firm and independent mind; and which neither the fear of offending, nor the hope of pleasing any party, however powerful, can prevent from exculpating or criminating according to truth and justice? Was not hope as well as fear used? On one side you have a sum of money and other emoluments; on the other, ruin and disgrace. On the one hand you have every prospect of advantage; on the other of being dragged in chains! Can it be doubted, that if this practice be tolerated, a witness, allured by hope on one side, and alarmed by fear on the other, will deviate from the truth? If there be a deviation, it is on the side of the prosecution; for which way they wish it cannot be doubted. The man who avows maxims of this sort, for the attainment of any end, will not be scrupulous as to the means which he employs to secure it. But another view in which this subject ought to be placed is this: Colonel Burr in justice and law stands on an |