mistaken his meaning; have misunderstood what he said, or not have heard all that he said; or have substituted his own inferences for the words of the speaker. Blackstone and Foster have characterised it to be the most dangerous species of evidence, ever liable to misconstruction and abuse. But if the constitution has proscribed it, why now question its exclusion? If the confessions of the accused, out of court, could not be evidence, against him, could the confessions of real accomplices be evidences against him? Yet the evidence of Wilkinson relates, in part, to the confession of pretended accomplices, no way proved to have been authorised by colonel Burr to say or to do any thing.

But why, it may be asked, is colonel Burr afraid to hear illegal evidence, if he is consciously innocent?

We see witnesses from different and distant parts of the United States, whose names, faces and characters, are alike unknown to colonel Burr. He cannot ascertain upon what parts of his life or conduct they are expected to speak, or upon what information their evidence may rest. His character has long been on public torture; and wherever that happens, with either a good or a bad man, the impulses to false testimony are numerous. Sometimes men emerge from the sinks of vice and obscurity into patronage and distinction by circulating interesting tales, as all those of the marvelous kind are. Others, from expectations of office and reward, volunteer; while timidity, in a third class, seeks to guard against the apprehended danger, by magnifying trifling stories of alarm. These works of exaggeration and propagation are frequently the subjects of idle amusement. The authors, until they commit themselves, have no just conception of the mischiefs they are hatching; but when they are afterwards called to give testimony, perjury will not appal them, if it be necessary to save their reputations for consistency or veracity. If the evidence be restricted within the legal limits, the purest of characters, under accusation of treason, will have hazard enough to run. A judge, whose experience of these dangers was great, thus speaks on the subject: "The rule of rejecting all manner of evidence in criminal prosecutions, that is foreign to the point in issue, is founded on sound sense and common justice. For no man is bound, at the peril of life or liberty, fortune or reputation, to answer, at once, and unprepared, for every action of his life." Few, even of the best of men, would choose to be put to it. And had not those concerned in the state prosecutions, out of their zeal for the public service, sometimes stepped over this rule in the case of treason, it would, perhaps, have been needless to have made an express provision against it in that case. Foster's

C. L. 246.

Mr. WICKHAM regretted that so much time had been consumed; but hoped the court would acquit them of any intention to waste it. When any illegal motion was introduced by the opposite counsel, he felt it as a serious duty due to his client to resist it with firmness. That for his own part he should not forget that he was before the circuit court of the United States, nor should he so far lose his respect for their discernment as to bring forward motions, which he believed to be illegal, only to waste the time of the court; that he hoped none but legal evidence would be suffered to be introduced; none but competent witnesses to be heard; and if this rule was not rigidly adhered to, what was to prevent the counsel on the other side from producing any and every kind of evidence that they pleased?

It cannot be supposed, said Mr. Wickham, that we are afraid, of this affidavit. What is in it, which has not been already known and scattered in every loose sheet of a newspaper throughout the United States? It is not that we resist it in point of fact; but on the ground of principle. We wish two points to be settled: are affidavits to be read at all on such a motion, and at such a crisis of the prosecution as this? and if so, ought they to be read if the witnesses themselves were present? Would it be right, if they were in the next street or the next county? Would it in fact be right if there was time enough to produce the viva voce' testimony itself? Mr. Burr had a right to be confronted with general Wilkinson. He had a right to crossquestion and examine him on all the statements which he has made. The government had power to bring him here. Why is he not here? Ought not some satisfactory excuse to be made for him? He is an officer of this government; and the government might have procured his attendance, as well by a special order as by a civil process. Has any subpoena been taken out, inquired Mr, Wickham, addressing himself to the clerk?

The clerk replied, that no subpoena filled up with general Wilkinson's name had issued from his office; but that blank subpoenas had been taken out.

Mr. Wickham.-No one knows, sir. There was time enough to have him here. The mail travels from Washington to NewOrleans in seventeen days. He might have come; but if he has not, why is not some satisfactory excuse brought forward? We want, sir, to see this gentleman crossexamined. We want to see him confronted with other witnesses. This is one ground on which we object to the production of this affidavit.

Another ground is, that according to the decision of the supreme court of the United States, this affidavit does not bear

upon the present motion. Mr. Swartwout, who was said to be connected with colonel Burr, was discharged by them, because this affidavit did not apply to the charge of treason. Are counsel then to be suffered to produce testimony on any subject that they please? A third objection is, that general Wilkinson does not relate a single act, committed in the district of Virginia. In Virginia? no, nor any where else. The attorney for the United States says, that he will prove the overt act hereafter. But, sir, I repeat it, that the rules of evidence apply not only to the admissibility of evidence, but to the order in which it is to be produced. Let them first prove an overt act, if they can; and then they are at full liberty to prove the colour of it.

Again, sir, this deposition is not the best evidence which could be produced, and which the laws require. General Wilkinson speaks of a cyphered letter, and of its contents, as well as he can make them out. Now, sir, where is this letter; and where is the key to it? Why are they not here? Why are they not produced before you? For these reasons, Mr. Wickham hoped, that the court would not suffer the affidavit to be read in evidence.

Mr. HAY.-We shall not, sir, be carried from our course by speeches, however long or animated they may be. But, sir, permit me to give those gentlemen a little information. Why talk of the affidavit before you? Do these gentlemen know, that we can positively prove the astonishment, the regret, and the denunciation which escaped from Mr. Burr, when he first heard of the publication of his cyphered letter! Let them first know what we can prove, before they abandon themselves to their triumph. General Wilkinson's affidavit is the first in the series of our proofs, and it is for this reason that we wish to commence with it."

Mr. EDMUND RANDOLPH.-Sir, we do not know what those gentlemen expect to prove; but we do object to the production of general Wilkinson's affidavit from what is already known: we know it to be perfectly inapplicable to the present question. Sir, this species of evidence is directly in the face of our bill of rights, and of the constitution of the United States. "In all cri"minal prosecutions, the accused shall enjoy the right to a speedy "and public trial, by an impartial jury of the state and district "wherein the crime shall have been committed; which district "shall have been previously ascertained by law; and to be in"formed of the nature and cause of the accusation; to be con"fronted with the witnesses against him, &c." Colonel Burr, then, sir, has a general constitutional right to be confronted with the witnesses against him. Let gentlemen show any exception to it, if they can. And what have they done? Why, they have shown here an obsolete, an evaporated affidavit, for which there

is no necessity and no law. The law positively declares, that the best evidence is always to be had; that when a witness is attainable, his affidavit is not to be admitted as testimony. We stand, therefore, sir, upon the bill of rights. Gentlemen may, indeed, attempt to evade its provisions by saying, that they can hereafter prove the material act; but I hope that this court will never countenance such illegal proceedings.

The CHIEF JUSTICE stated, that the supreme court of the United States had already decided, that an affidavit might be admitted under certain circumstances; but they had also determined, that general Wilkinson's affidavit did not contain any proof of an overt act; that he was certainly extremely willing to permit the attorney for the United States to pursue his own course in the order of drawing out his evidence, under a full confidence that he would not waste the time of the court by producing any extraneous matter; but where was the necessity of producing general Wilkinson's affidavit first? If there was no other evidence to prove the overt act, Wilkinson's affidavit goes for nothing; for so the supreme court of the United States have already decided; and by that decision he should have conceived himself bound, even if he had dissented from it. Why then produce this affidavit?

Mr. HAY observed, that there was a great difference between the course prescribed by the court, and the one which he would himself have pursued; and that he seriously believed, if he had been left to himself, he would at least have satisfied the court itself that his own course was the best. That as to general Wilkinson's affidavit, it might even now be confronted with witnesses; as Messrs. Bollman and Swartwout were present, and would say whether such and such conversations were ever held, as are detailed in this affidavit. That he was now before an examining court, and not before the petit jury: why then the same strictness of evidence now as would be required on the trial in chief? That he really believed it was the intention of the opposite counsel, by dint of long speeches, to attempt to drive him into their course: but that they ought to know he never consulted the counsel opposed to him; and that they would be the last persons in the world, whose opinions he would consult on the present occasion. That he seriously believed, that the evidence which he possessed, would, beyond the possibility of a doubt, convince the mind of the court, not only of the existence of a traitorous design, but of an overt act; and that all that he asked, was the liberty of producing this evidence in the order which he thought best. Is no part of this deposition, then, admissible? Not a word?

The CHIEF JUSTICE observed, that he thought no part of it admissible at this time; that general Wilkinson's affidavit either

contained proof of the treasonable design, which was no proof of the overt act, or it related to conversations, which, however strongly they might bear upon those who held them, did not bear upon colonel Burr.*

Mr. HAY asked, how the court was to be satisfied of the contents of any paper, before it was read to them. An affidavit might contain both the proof of the overt act, and a traitorous design. Was such a paper as this to be read under the decision of the court? or how was the court to know, whether a paper might not contain some proof of the overt act satisfactory to them, unless they had an opportunity of inspecting that paper?

Mr. WICKHAM.-These gentlemen talk of delay; and yet they would produce to this court whole masses of evidence that are perfectly irrelevant to the present question. They declare that they will not pursue our advice; and that we are the last persons whom they would take for counsellors. Sir, we do not ask them; all that we want is, that they would pursue the strict principles of law and legal evidence. One of the best rules of evidence is the order of evidence. If a man is charged with a crime, must not the deed itself exist before any testimony is produced as to the intention with which it is done? I hope that no testimony will be suffered to be introduced before the act itself shall be produced; and I call upon this court to inforce the strict order of evidence.

Mr. BURR observed, that in point of fact, it was very immaterial to him, whether this affidavit was read or not; that what he particularly wanted, was, that the great principles of evidence should be laid down, which would be equally applicable to this, and to all other affidavits. He consented that the court might have this deposition read, if they thought proper.

Mr. HAY.-This deposition will prove that it was one of Aaron Burr's objects to seize upon Mexico. Then, if we can prove by some other evidence, that this object was connected with an attack upon the United States, is not this deposition of material importance in that point of view? If both must be proved, does it make any difference which we begin with? If a conspiracy has been planned of a misdemeanor and of treason so strongly combined that they are made to go on together, and the accomplishment of the one facilitates the accomplishment of the other, is it not of material consequence to prove the misde

The chief justice observed, in a subsequent stage of this business, that an idea had since struck his mind, which he thought it material to state; that he had not recollected that these conversations were said to be held by persons who were said to be authorised by colonel Burr; and of course that their conversations would bear upon him.