he begged them to recollect the extreme importance of the present trial, and that it would, perhaps, be the last time that they were to be placed in this situation.

The CHIEF JUSTICE presumed, that the mail from Norfolk would not arrive here until the day after to-morrow.

Mr. HAY said that it had arrived the day before.

Mr. MARTIN. I have an extract from another Norfolk paper, one day later than the one quoted by the attorney, which conveys in substance, the same information. The ship news, in the same paper state, that the Hannah had left New-Orleans twenty-seven days before.

Mr. HAY.-These may be different vessels.

Mr. MARTIN.-The same vessel, sir.

Mr. HAY.-These vessels may convey some intelligence to Washington respecting general Wilkinson, which may conse quently reach ourselves.

Mr. BURR.-I hope, sir, it will not be understood, from the observations of my friend, Mr. Martin, that I mean to take any part in this business. I shall certainly not interfere with the grand jury in this stage of the affair. The proposition of the gentleman has my cordial concurrence.

The CHIEF JUSTICE observed, that if the jury were adjourned till Thursday, some passenger might, perhaps, arrive in the next Norfolk mail, with some intelligence about general Wilkinson.

Mr. HAY presumed, that the jury would not probably be wanting before Saturday.

Mr. BURR hoped the jury would be adjourned for as short a time as possible; at all events, not longer than Thursday,

CHIEF JUSTICE.-This is Tuesday; the attorney for the United States cannot probably expect general Wilkinson before Thursday, if he comes by water.

Mr. HAY knew not how he was to come; if by water, he certainly could not be expected before that time; and if by land, he would certainly require one day to recover from the fatigue of travelling.

The CHIEF JUSTICE then observed to the grand jury, that they were adjourned till Thursday, ten o'clock.

Mr. BURR then addressed the court. There was a proposition which he wished to submit to them. In the president's communication to congress, he speaks of a letter and other papers which he had received from Mr. Wilkinson, under date of 21st of October. Circumstances had now rendered it material, that the VOL. I.

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whole of this letter should be produced in court; and further, it has already appeared to the court, in the course of different examinations, that the government have attempted to infer certain intentions on my part, from certain transactions. It becomes necessary, therefore, that these transactions should be accurately stated. It was, therefore, material to show, in what circumstances I was placed in the Mississippi Territory; and of course, to obtain certain orders of the army and the navy which were issued respecting me. I have seen the order of the navy in print; and one of the officers of the navy had assured me, that this transcript was correct. The instructions in this order were, to destroy my person and my property in descending the Mississippi. Now I wish, if possible, to authenticate this statement; and it was for this purpose, when I passed through Washington lately, that I addressed myself to Mr. Robert Smith. That gentleman seemed to admit the propriety of my application, but objected to my course. He informed me, thatif I would apply to him through one of my counsel, there could be no difficulty in granting the object of my application. I have since applied in this manner to Mr. Smith, but without success. Hence I feel it necessary to resort to the authority of this court, to call upon them to issue a subpoena to the president of the United States, with a clause, requiring him to produce certain papers; or in other words, to issue the subpoena duces tecum. The attorney for the United States will, however, save the time of this court, if he will consent to produce the letter of the 21st October, with the accompanying papers, and also authentic orders of the navy and war departments.

Mr. RANDOLPH observed, that he knew not whether it was necessary for him to support colonel Burr's motion: that he had been informed by him of his application, through a friend, to Mr. Smith, and of Mr. Smith's refusing to grant the application, unless it were made through one of his counsel: that he had himself, therefore, addressed a letter to Mr. Smith informing him of colonel Burr's statement. In answer to this he had received a letter, which seemed like a personal communication to himself; but as he had not requested him to withhold it from colonel Burr, and as it contained information material to him, he had shown it to colonel Burr.

Mr. Randolph regretted that he had not the letter then about him; but the substance of it was, that the order which had been alluded to was only for the officer to whom it had been addressed, and was to be seen only by him. He added, that he had written in reply to Mr. Smith, that he never would have applied to him for it, but for the two reasons, that it had already appeared in a Natchez Gazette, and that Mr. Van Ness, the friend of colonel Burr, had informed him of Mr. Smith's unconditional promise to furnish the order, if he was properly applied to for it.

Mr. BURR observed, that to avoid all possible misconception, he thought it proper to state, that Mr. Van Ness had assured him of Mr. Smith's positive and unqualified promise to furnish the answer, if applied for through counsel.

Mr. HAY declared that he knew not for what this information could be wanted; to what purpose such evidence could relate, and whether it was to be used on a motion for commitment, or on the trial in chief.

Mr. BURR, Mr. WICKHAM, and Mr. MARTIN observed, that perhaps on both: according as circumstances might require.

Mr. HAY.-I suppose this court will not proceed but upon facts. Now, a letter of the 21st of October is spoken of; but has this letter been yet identified? He hoped that the court would not issue the subpoena duces tecum, until they were satisfied that they had the authority to issue it, and that the information required was material in the present case.

Mr. WICKHAM observed, that the present was simply intended as a notice of a motion to be brought before the court; which motion might be discussed either to day or to-morrow.

Mr. HAY declared, that all delay was unnecessary; but he pledged himself, if possible, to obtain the papers which were wanted; and not only those, but every paper which might be necessary to the elucidation of the case.

CHIEF JUSTICE observed, that all delay was obviously improper; that if the papers were wanted, they ought to be obtained as soon as possible, and not, perhaps, delay the ulterior stages of the prosecution.

Mr. HAY stated, that he had already received a communication from Mr. Wickham on this subject, and intended to have informed him that he would write for all the papers which were wanted, (and he had no doubt he should obtain them) if the court judged them material. The fact was, that he had already in his possession Mr. Randolph's correspondence with Mr. Smith, and the order from the navy department; but in his own opinion, they no more related to the present prosecution than the first paragraph of the first page of the acts of congress.

CHIEF JUSTICE inquired whether the Natchez Gazette was not in court.

Mr. BURR.-No, sir, but I have already seen the same order in other papers; and have no doubt that almost every person has. At Natchez it was a subject of surprise, that such an order had ever found its way into a public print.

Mr. HAY repeated, that if the gentleman would furnish him with a list of such papers as they wanted, he would attempt to obtain them, if the court thought them material. Of what use were they? Were they too to be laid before the grand jury, to distract their attention, and to present, under another point of view, another subject for their consideration? He had supposed, that the mass of matter to be laid before them was large enough already.

CHIEF JUSTICE observed, that it was impossible to determine their use, without hearing them. He would much rather that the counsel on both sides should make an arrangement with each other suitable to them both; and that the court itself was not now disposed to make any arrangement; but if the parties could not come to any agreement, he should then wish to hear some argument on the subject to satisfy him, whether the court had the right to issue a subpoena duces tecum.

Mr. BURR observed, that he had been told it was the constant practice in this state to issue such subpoenas upon the application of a party.

CHIEF JUSTICE had no doubt it was the custom to do it, where there was no great inconvenience to the party summoned; that it seldom occurred; but that he was inclined to think, where great inconveniences would result to the party summoned, that the materiality of his testimony should be fully shown. If papers are to be obtained from a clerk's office, such a subpoena may be issued, and though not upon affidavit, yet where there has been good cause shown.

Mr. MARTIN said, that there would be no inconvenience, as the president might just transmit the papers wanted by mail.

Mr. HAY observed, that Mr. Martin's remark superseded any further proceeding. Why apply to the court to issue a subpœna to the president, unless perhaps it was the necessary form for obtaining the papers.

CHIEF JUSTICE.-The reason is, that in case of a refusal to send the papers, the officer himself may be present to show cause. This subpoena is issued only where fears of this sort are enter

tained.

Mr. HAY said, that no application had yet been made to the secretary of state, for general Wilkinson's letter; nor to the department of war, for its order.

Mr. MARTIN.-If one department refuses, we may presume that the others will.

Mr. BURR.-If the gentleman grants our demand, he may propose any alteration in its form that he pleases.

Mr. RANDOLPH.-If any arrangement can be made to obtain these papers, we would rather that it should be a voluntary act on the part of the government.

Mr. HAY.-I will attempt to obtain these papers; any, in fact, that gentlemen may want, if the court will but say they are material.

Mr. WICKHAM.-Colonel Burr's counsel know little of the importance of these papers, but from himself; and from that, they are fully persuaded of their great importance. The attorney for the United States says, that so far as his personal exertions will go, he will attempt to obtain them, and firmly believes that his application will be successful. But, sir, at Washington they may entertain very different views from himself. Under such circum, stances, it is better to encounter the delay of three or four days, to obtain the authority of this court, than trust to an expedient, which may be unavailing. But I see no necessity for any such delay, as the order may at once issue, by consent of parties. As to the order from the navy department, a copy may be sufficient; the original is already gone out. As to Wilkinson's letter, we wish to see itself here; and surely it may be trusted in the hands of the attorney for the United States.

Mr. HAY.-It seems then, that the copies of papers from the government of the United States will not be received. They are not to be trusted. After such an observation, sir, I retract every thing that I have promised: let gentlemen, sir, take their own

course.

Here some warm desultory conversation took place at the bar, when,

Mr. WICKHAM observed, that as the unfortunate expression fell from him, he thought it proper to explain. He had intended no insinuation against the fairness of the conduct of the government: that the distinction he had drawn between an ori- . ginal and a copy, simply resulted from his anxiety to obtain the highest possible degree of evidence; hence he preferred the original to the copy: that if Wilkinson was here it would be necessary to meet him with his own letter; perhaps in no other way. Mr. HAY.-That explanation removes the difficulty.

Mr. WICKHAM.-We wish to confront him with his own letter.

Mr. HAY.-Perhaps they may not be able to remove the original, as it is already filed in the department of state.

Mr. MARTIN. We are ready to go on with the discussion. Mr. WICKHAM.-The president's message mentioned, that this was a letter to himself.

Mr. HAY.-I hope the court will remember that remark. The letter these gentlemen then want is addressed to Thomas Jefferson. Have they a right to demand any but public letters