Virginia Argus — Richmond, Va., 1807-06-20 00:00:00, page 2

gar■ “jit •
in a cause. But the proof furnished by
the vase is most conclusive that the speci
al statements of the affidavit were requir
ed solely on account of the continuance.
Although the counsel for the United
States considered the motion for an attach
ment merely an a mode of punishing for
contempt, the counsel for Smith and Og
den consideictl it as compulsory process^
to bring in a witness, and mov'd a conti*
nuance until they could have the benefit
of this process. 'I his continuance was to
arrest the ordinary course of justice, and
therefore the court required a special af
fidavit, shewing the materiality of ’he tes
timony before tins continuance could be
prnnted. Prima facie evidence could
not apply to the rase, and there v. as an ad
ditional reason for a special affidavit* The
objefil of this special statement was ex
press’v said to be for a continuance.
Coi.dkn proceeded. “ The present
application is to put oft" the cause on ac
count of the -iisence of witnesses, whose
testimony the rh fondant Pledges is ma
terial <er his defence* and V?hn have dig.
obeyed the ordinary process of he court.
In compliance with the intima’inn fiom
the bench veste’duv, thr dvfendart
has disclosed, by the affidavit which 1 have
just read, the punts to which he expects
the witnesses who have been summoned
will tcs’ifv.
“ If the court cannot, or will not issue
compulsory process to bring in the wit
nesses who aie the obje6\s,of this appli
cation, then the cause will not be postpon
ed.
“ Or if it appears to th** court that the
matter disclosed by the* affidavit nr eh l not
be given in evidence if the witnesses were
new her.e, then we cannot expect that our
motion w ill be successful. For it would
lie al.suid to suppose that the court will
„ postpone the trial on account of the ab
sence of witnesses whom they cannot com
pel to appear ; and of whose voluntary at
tendance Uitre is too much teuson lo des
pair, or on account of the absence of wit
nesses who if they were before the
court, could not be heard on the trial.”
(Page 12.)
This argument states unequivocally the
purpose for which a special affidavit was
required.
The counsel for the U. S. considered
the subject in the same light. After ex
hibiting an affidavit for the purpose of
shewing that the witnesses could not pro
bably possess any material information,
Mr. Sandford said “ It was decided by tbe
court yesteul.iy ilia' it was incumbent on
the defendant in order lo entitle himself to
a postponement ol ihe trial, on account of
the absence of these witnesses, if* shew in
what respect they are ma'crinl for his de
fence. It was the opinion of the cnu;t
that the general affidavit in common form
would not be sufficient for Ibis purpose;
but that the particular fafcls expelled from
the witnesses must be disclosed, in order
that the court might, upon those fatts,
judge of the propriety of granting the
postponement-”—(Page 27)
The court frequently treated the suh
je£l so as to show the opinion that the spe
cial affidavit was required only on account
ol the continuance ; but what is conclusive
on this point is, that after deciding the tes
timony ofthe witnesses to be Mich as could
not be offered to the jury, Judge Patter
son was of opinion' hat a rule to shew cause
why an attachment should not issue, ought
to he granted. He could not have requir
ed the materiality of the witnesses to be
shewn on a motion, the success of which
did not in his opinion in any degree de
pend on that materially; ard which he
granted alter deciding the testimony to be
such as the jury ought not to heat. 1; is
then most appaicnt that the opinion of
Judge Patterson has been misunderstood.
and that no inference call possibly be
drawn from it opposed to llie principle
svhich has been laid down by the court.
That principle will therefore be applied to
the present motion.
The first paper required is the letter of
Gen. Wilkinson, which was referred to in
the message of the president to congress.
The application ohbat letter to the case,
is shewn, by the terms in which the com
munication was made. It is a statement
of the comJut'* of the accused, made by the
person who is declared to be the essential
witness against him. The order for pro
ducing thii letter is opposed :
Irt : llecaute it is not material to the
defence.
!i is a principle universally acknowledg
ed that a patty has a right to oppose to
the testimony of any witness against him,
the declarations which that witness has
made at other times on the same sul>jr£t.
Jl lie possesses this right, he must bring
forwaid preof of those fleclarairns. This
proof must be obtained before l.e knows
positively what the witness will soy, lor
if be waits until the witness has been
he; rd at ‘he trial, i» is too late to meet him
with his former declarations/' Tho«e for
mer declarations therefore, cotstitute a
mas* ol testimony winch a patty has n
right to obtain by way of precaution, etu! \
the positive necessity of which, can only
be deeded at the trial.
It is with serre surprise an argument i
Wes braid Irnm the bar, insinuating that’
the award ol a subpoena on this ground,
gave the countenance of thr court to sus
p.ciors, affecting the veracity ofa witness
svhn is to appear on the part of the United
States. This observation could not have
been c on side red. In contests of this de
scription the court talus no part;<he
court has no right to take n pa.t. Every
person may give in evidence, testimony
such as is stated in this case. Wh
would be the feelings of the f rosecutofj «
• I in this case the uccusi l should pi educe i
• witness completely exculpating himself,:
and the attorney for the U. States should
he arrested in hia attempt to prove what '
the same witness had said upon a former
occasion, by a declaration from the bench,
that such an attempt could not be pet mil* •
ted, because it would imply a suspicion •
on the court that the witness had not spo
ken the truth ? Uespc€\ing *»• unjustifia
ble an intei pos/tion Lot cue opinion would
be formed
The 2d obj*6Vion is, that the letter con
tains matter wii.ch ought not lobe dis- I
closed.
'1 hat there may be matter, the prndttc- j
tion of which the court would not re- !
‘fire, is cer.ain ; but that in a capital 1
case, the accused miehl not, in some form,
to have the benefit ol it, if it was really
essential to hia defence, is a position
which the court would very reluctantly
. deny. It ought not not to be believed, j
i that the department which superintends
j prosecutions in criminal cases, would be
'inclined to withhold it. What ought to
ibe done under such circumstances pre
sents a delicate question, ihe dissu sion ,
of which, it is hoped, w;|l revet be re
dt red necessary ill hs country. At pre- j
sent it need only be said, that the ques
tion dors not occur at this time. There
iv c rtainly nothing before the court which
shows, that the letter in question con- j
i ta ns any mutter, 'he disclosure of which
; would endanger the public safety. If it
! docs contain such matter, the fact may ;
J appear before the disclosure is made. If
it does contain any matter which it would
he imprudent to disclose, wh'ch it is not
the wish ot the executive to disclose, if it
he not immediately und essentially anpli
cable to the point, will, of course, he sup
pressed. It is not easy to conceive that
so much of the letter as relates to the < on
duct of the accused, can he a subject of de
licacy with the President. Rverv thing of
this kind, however, will have its due con
sideration on the return of the subpoena.
Idly, It has been alledged that a copy
may be received instead of the original,
and the act of Congress has been cited in i
: support of this proposition.
! 1 ills argument pie-supposcs that the j
letter required is a document filed in the j
department of state, the reverse of which !
may be and most probably is the fact. Let- )
ters addressed to the President arc most u
suallv retained by himself. They do not '
belong to any of the departments. But
were the fact otherwise, a copy' might
not answer the purpose. The cony would
not be superior to the original, and the o
riginal itself would not be admitted if de
nied, without proof that it was in the hand
writing of the witness. Suppose the case 1
put at the bar, of aa indictment on this le - ]
ter for a libel, and on its production should ,
it appear not to be in the hand writing of:
the person indicted. Would its being de- i
posited in the department of state make '
it his writing or subject him to the j
consequence of having written it ? Cer- I
tainly not. For the purpose then of show- |
ing the letter to have been written by a 1
particular person, the original must he pro
duced and a copy could not be admitted.
On the con fid entai nature of this letter,
much has been said at the bar, and au- 1
I thorities have been produced, which ap- j
pear to lie conclusive. Had its contents
been orally communicated, the person !
to whom the communications were made j
could not have excused him*elf from de
tailing them so far as they might lie deem- \
ed essential in the defence. Their being in :
j writing gives no additional sanctity, the :
Only difference produced by that circum
stance is, that the contents of the paper
. must be proved by the paper itself, not by
the recollection of the witness.
Much has bten ‘Oil about the disre
spect to the chief magistrate, which is
implied by this motion and by such a de*
j c.sion of it as the law is b^lifcved to re
quire.
These observations will be verv truly 1
; answered by the declaration that this
i court feels many, perhans oeculiar mo. I
i lives, lor manifesting as guarded a res.
I peel for the chi f magistrate of the uni
! on, as is compatible with its official du
; ties. To go beyond these would exhibit
a conduct which would dese ve some i ther
j np|>clItition than the term tespect.
It is not for the court to anticipate the
event of the present prosecution, should
it terminate as is expected on the part of
the United States. All those who arc j
concerned in it would certain!* r» grel
that a paper which the accused believed
to be essential to his defence, which may
for slight that now appears, be essential,
had been withheld from him. I will not <-ay
that tliis circumstance would in any degri e
tarnish the reputation of the government 1
but 1 will say that it would justly tarnish {
•he reputation of the court w hich had giv- j
cn its sanction to its being withheld.—
Might I be permitted to utter one srnti- j
ment with respictto myself, it would be |
to deplore most earnestly, the Occasion i
which should compel me 10 look buck on
any part of my official conduct with so j
much self-ieproarh as I should feel, could
I declare on the informal ion now posses
sed, that the accused is not entitled to the
letter in question, if it should be really
in.p' riant la hint.
The p'opriety of requiring the answer*
to this letter is more questionable. It is .
wllcdged that it most probably enmmuni- i
• ates orders showing (he situation of (his ;
country with Spam, which will he impor ’
tant on the misdemeanor. If it contains ;
matter not essential to the defence and
the disclokure is unpleasant to the Kxe* 1 i
cutive, it rertninly ought not to he dis* ‘
closed This is a point which will ap. 1
pear on the return. •
i’he demand of ihe orders which have *
been issued, and which have been, as is \
alledged, published in the Na'chej? da
idle, is by no means unusual, bucli do* }
tumenls nave often been produced in the
murid ol the U. Stales and the courts of
Lugland. If they contain matter intcresl
r,K the naiion, the concealment of
ivhich is required hy the public safety,
.hat matter will appear upon the return.
It they do not and are material, they may
jtt exhibited.
It is said they cannot be material be*
:ausc they cannot justify any unlawful re*
iistance winch may have been employed
ar meditated by the accused.
Wtte this admitted, and were it also
Admitted that such resistance would a*
mount to treason, the orders might still
be material because they might tend to
weaken the endeavor to connect such o
vert act with any overt aa of which this
cou.- may take c rgnizanee*
The court, however, is rather inclined
to the opinion that the subpxna in such
cise ought to be directed to the head of
the department in whose custody the or
ders arc, and the court must suppose that
the letter of the secretary of the navy
which has been stated by the attorney lor
the L'. S. to reftr the counsel for the pri
soner to hia legal remedy for the copies
he desired, alluded to such a motion as is
•i«i* made.
1 he affidavit on which the motion is
grounded has not been noticed. It is be
I eved that such a subpoena as is asked
ought to issue if there oust any .cason
lor supposing that die testimony may be
material and ought lobe admitted. It is
only because the subpoena is addressed
to those who administer the government
ol this country, th^i such an affidavit was
required as wouid furnish probable cause
to believe that the testimony wasdccired
f-*r the real purposes of defence, and not
lor such as this court will forever discoun
tenance.
Debate on the n otion for a ivrit of sub
Jioenu duces tecum continued.
Thursday, June 11,1807.
Mr. Hay began with addressing the
court as follows—
1 AM happy the court has recommend
ed to the counsel on both sides to adhere
more strictly to the subjects in debate.
Their admonition will be followed by me,
and I wish they would cause it be followed
by others. I regret indeed that it was not
made somewhat sooner. Perhaps, if it had
been, wc might have been spared the pain
ot hearing many remarks as unauthorized
in point of principle and fact as thrv are ir
relevant ; remarks which, as a public pro
secutor, as a friend of my country, and a
supporter of its constitution, government
and la', s, I heard with surprize and re
gret, and with a sentiment which I will
not name. 1 will not imitate this example
of my opponents, but endeavor to confine
my observations exclusively to the questi
on now in discussion. I am really doubt
ful however, whether I should not be de
parting in some degree from this declara
tion in noticing one argument ti ed by the
gentleman who last spoke, (Mr. Wick
ham.) Language so strange, a charge so
unjust, 1 hope, however, I may be permit
ted to repel
l lie gentleman with atone of voice cal
culated to excite irritation, and intended
for the multitude, charged us with conced
ing point after point! He insinuates that
we have been catching at every thing to
hear down the accused ; that we inconsi
derately contend for any doctrine however
absurd which might have the effect of in
juring him, and afterwards arc obliged to
abandon the ground we have too precipi
tately taken. I will ask if any occurrence
has shewn that we are actuated by this
spirit ? No, sir. The gentleman knows the
charge is unjust. But even if it had been
true that we had made concessions, it ought
to have been considered as a proof of our
candor ami liberality, in giving up ground
as soon as we tho’t it untenable, Sc not as a
matter of reproach. But, sir, it is not cor
rect. We have conceded no point that wc
ever maintained We admitted ihat the
President might be subpoenaed as a wit
ness because we alwavs thought so. We
never clothed him with those attributes of
divinity which gentlemen have accused us
of ascribing to him. We know the Presi
dent is hut a man, though among the first
o» men ; lie is but a citizen, though the first
of citizens. 1 he President too knows that
like the great Cato he ought to pay obedi
ence to the laws of his country and obey
the commands of its courts of justice. Ail
this wc have uniformly admitted, hut have
i.enied, and deny now that a Hub/torna Hu.
cm treum ought to be issued to the Presi
dent.
Mr. Hay moreover observed that the ob
jection made the d.,y I e ore to the prisoner's
right to make the motion in thepresentstage
the prosecution was not waved ; and that,
in opposing the motion, he was influenced
solely bv a desire to keep the accused and
his counsel within legal limits; because he
had endeavored to procure for them the
very evidence they requested—Tic procee
ded to argue the question upon its merits.
It having been admitted that this was a
motion addressed only to the discretion of
the court, it followed that it ought to lie
granted only when substantial justice re
quired it ; that it is tobe granted to a per
son accused because his defence when pro.
pcrly conducted requires it. Hut the ac
i used himself in this case docs not say
these papers are material in his defence.
I lisaffidavit is drawn with great caution.
[Je only says that the papers may ht ma
terial. 1 his is nothing more than the
mere expression of an opinion which may
'se correct or incorrect. Mr. Hay asked
:he counsel for f o], Hurr, and more espe*
:ially Mr. Martin, if in the course of their
ong experience they had ever known
inch an affidavit ? Its language is unpre
‘edented, designedly vague, Rndlequivora1.'
Phc letter may hr material !—This may
lepernl upon the use intended to he made
>f ft. The object of demanding it may he
o give his counsel an opportunity to speak
is they have done before ; to charge the
government with illegal and barbarous
lersecution, and with endeavoring to crush
tndoverwhelm the accused. All this may
: W said tint! no doubt \vill be said, and rtiav
j be a very considerable help to Col. Burr.
J The affidavit is truly farcical, because
from any tiling expressed in it the letter
| of Oen. Wilkinson may, or may not be ma
terial. Suppose those words ‘‘or may not”
j had been inserted would it then have been
j regarded ? The absurdity would then have
j been t*o evident—And is it not the same
I thing in substance as it now stands? If
such an affidavit as this is sufficient, and
mere curiosity is to be indulged, the Pre
sident might be required to produce all
our csrrcspondcnce with the Spaniards a
bnut our disputed territories ; in short, all
the papers of government would lie laid
open to the inspection of Burr. But the
court ought not to issue process on specu
lation only ; it ought not to subject the public
officers, to inconvenience and the national
archives to derangement, unless in a case
where justice plainly requires it.
But the affidavit would not have been
sufficient if he had said, what he dared not
sav, that the papers arc material. It should
appear hot!) they are material. The na
ture of the evidence ought to be specially
stated that the court may judge of it. Will
the court rely on the judgment of the par
ty in this case ? Misled as he is by his feel
ings, his judgment ought not to fie trusted.
liven in ordinary cases the court will
enquire as to the contents of papers on a
motion for a continuance—which doctrine
is recognized in 2 Bl. ltcp 514. Thetame
thing was done in the case of the U. S. ks.
Smith and Ogden, in which almost as much
clamor was excited as in this. There, the
evidence of Mr. Madison and others was
sworn to lie material, but the coart requir
, ed a specification of its substance, and de
cided that it was not admissablc. The pa
pers required in the present case would
probably fie so decided, if they were here.
I have a knowledge of the orders and think
so with respect to them. The letter I
know nothing about. Mr. Wickham’s ar
gument that tlie court did right in Smith
and ms#*, hrrnnvp it tunc nr'min
facie presumable that the evidence would
not be admissable, turns against him here ;
for, certainly, it is prima facie presuma
ble that gen. Wilkinson’s letter cannot
make in burr’s favor, since the orders to
intercept him on his passage to the seat or
his empire were founded on the informa
tion received from that letter.
i'he conduct of the gentlemen proves
! that they feel us to be right. Their inve
j luntary conviction of this is evinced by
) their endeavoring to supply the defect in
the affidavit, and to specify the purposes
for which the papers are wanted. The
accused lias not ventured to swear that
they are material, but they asseit it and
attempt to shew it by argument,
j First, as to the letter;—Mr. Wickham
says, that Wilkinson has written other let
j tecs to other persons differing from this.
I We deny the fact. If it be true, why is it
j not sworn to? But suppose C»en. Wilkin
son had dene so, what is the inference ? Is
j his evidence before the Jury not to be re
j garded ? It is strange indeed that the gen
I tlemen say they have never seen this let
ter and only guess at its contents, vet say
! that letters containing different statements
! have been written ! Surely such efforts as
i these are deplorable ; for, whether the as
j sertion be true or not, it is not known to
be true.
They next contend that the orders are
material because they were illegal, arbi
trary, unconstitutional, oppressive and un
just ; that Burr’s acts were merely acts of
self-defence against tyranny and usurpati
on, and. of course, were justifiable.
Many strange positions have been mid
down, but this is monstrous. Mr. Martin
will e::cuse me for saying that 1 expected
sounder doctrines from his age and expe
rience. These principles were not le rut
by him in Maryland, nor arc they the doc
trines of this place. Considering that he
has come all the way from Maryland toen
I lighten us inferior lawyers of the Virginia
bar by his great talents and erudition, 1
• hoped lie would not have advanced a doc
; trine which would have been abhorred e
i yen in the most turbulent period of the
• French revolution, by the Jacobins of 179.5 1
j It is the duty of the President to cull out
j the militia to suppress combinations aga nst
. the laws--(see L. U. S. vol. 3, pa. 180.)
and particularly to prevent enterprises a
gainst foreign nations in amitv with the tr
States (ib. p. 92.) \et it is contended,
that lus orders for such purposes arc ille
gal, and may lie resisted by force of anna I
I will not say it is treason to advance or a
misdemeanor to believe such doctrines
but deplorable is the cause which depends
I on such means for support.
Suppose, hnwevt r, the President was
: misled ; and that Mr. Iiurr was peaceably
engaged in the project of settling his
Washita lands ; will it be contended that
:he had a right to resist the President’* or
) ders to stop him i I say this would be trea
; son. If Congress were to pass an arhitru
rv or oppressive act, Init not unconstituti
j wall (such a* the excise law for example,)
it lias been decided that an armed combi
nation to resist it would be treason. Of
course resistance to the execution of the
statute under which the President Was act
ing would be treason. The President rc
| ceive* information that a law of the IJ. S.
is about to be violated ; be issues orders to
enforce the law in the way prescribed by
it*elf. Is not opposition by violence trea
son? Will the gentlemen, after seriously
reflecting, s'ill contend that Burr had a
right to resist? This doctrmc is not the
growth of this country, nor is it the doc
tiine of the real friends of human liberty
But this is a new-born zeal of romr of the
gentlemen in defence of the rights or man.
| No wonder, therefore, they are not so well
| acquainted with the subject a» those, who
have always, and always will contend for
But jnlfiiii their inference correct;
that Burr had a right to resist an illegal
order; (which I utterly deny;) will the
court issue a subpoena founded on that sup
position ? Will you in;4*l* the executive In
saying that its orders were illegal, and
ought on that account to be produced as e
videnco? especially after you have your
self said that there was probable cause for
committing Col. liuir on the charge ot, a
misdemeanor ?
Mr Hau proceeded to argue another
po nt that the court ought not only to be sa
tisfii d that the letter was material, but
that it was a fiublie /m/icr. lie said, if it
was a public document, the right to a co
py of it was admitted, unless there should
be something in it which, in the opinion of
the President, the public good forbade to
be disclosed. Put lie denied that the let
ter was a public paper merely becapscad
dressedtothe President ofthe United States.
It had been observed that the President had
made it so by referring to it in ids message
to Congress. If this argument is correct,
only so much is public as is referred
to. (Here Mr. Hav read a part of ihe Pre
sident’s communication to Congress.) He
contended that there might have been a
great deal more in that letter than what
related to the discovery of Burr’s plans,
that there might have been information of
a private nature, accounts of the uispositi
j on of the people in the Western C untry
j towards the government, and U>-n Y\
| son’s thoughts on many important subjects.
: Will the court say that all these things
j shall be made known i It a copy was re—
J ceiveil, such parts only could be extracted
as ought to be made: but if the original
should be granted, the whole would bes.cn
and inspected bv the court, !>v the counsel
on both sides, ai -'by the public. lie said
that the court ought also to be satisfied that
the President has the custody of this letter.
Ihe subpoena ought to be addressed to the
person who has it in his custody, it is said
to be a public document: if no, it is in the
oHice of the Secretary of State (see L. U. S.
1 vol. 32 5c 110. '
It is absurd then as well as indecorous
t« summon the President of'the United States
to bring a paper Which lie has not. The
same observations applied to the copies of
orders. 1 he original orders were lodged
with the Secretary of Stale, and conies
were sent by him to the Secretaries of
. *r» antl of the Navy. To the Secretary
ni State, therefore, the subpoena ought to
be issued, if at all
1 he court ought also to be satisfied that
t.ie arty could net obtain without a moti
I nn tlio m» .1__j .
- r — vMuus mnv required.
I he accused ought therefore to shew that
! ‘!e luis demanded copies : hut he has not
done so. he asked indeed, a copy from
t ic Secretary ot the Navy; and because
• c jc.used, process is to he issued against
the 1 resident of the United States, though
he was never applied to.
T/:r Chief Juat ce asked Mr Hav what
was the legal way of getting the paper
'•hic.i the Secretary of the Navy refused ?
lie ans"orcc!, «hv application to the Se
cretary of State for copies.”
Mr. Hay made manv other observations
which the limits of this sketch will not per
mit us to insert. In opposition to the ar
! Cement that tron. Wilkinson might deny
I any recollection of his letter if u copy only
was produced, he said it was mere ore
■ sumption and a preposterous supposition ;
I '* .would be immaterial whether he
| denied it or not, since the copy is evidence
! ar^ Congress ITe vindicated Gcii.
j \\ ilkinson from the attacks which were
.wantonly made upon him, saying it was
; policy o! Col. Burr and his counsel to
endeavor to tear down his character bC
i ^(lre arrived, and that every principle
| of propriety was violated by such conduct.
! *lc asked if it was right that a man high in
; tlie confidence of government and of his
j country, should he thus attacked ! and de
• dared he should he sorry for the charac
ter of his fellow-citizens if the nftuse lavish
ed on him by the accused should have the
slightest effect on the event of the trial.
Mr. M'Rae said it was plainly to be in
ferred from the President’s message to
Congress, that the letter in question v as
confidential. It appears that the Presi
sident furnished extracts of Home of the
letters he received relative to Col. Rurr.
His not furnishing Congress with a copy of
*. or of any |>a t of it is presumptive
evidence that it ought not to lie made public.
Mr. Randoi/i/i,—Mav it please your
honors—To the Observations I shall make,
I have no preface or apology. 1 beg leave
to appropriate to niyurr.cnt the time
which falls to mv lot in the discussion of
the present motion. I did rot believe
bir, that to day there would have hern
a resurrection of the discussion which
td k place yesterday ; hut since the at
torney on the pu t of the prosecution has
thought proper to introduce it, I shall net
; shrink from it but meet it. I make nonp
: peal to tin- multitude, it is not mv desire
<.j-i.ho u,e sympathy or reuse ltnproper
, lv the feedings of tlie bv-statoders. I shall
simply stale the proposition. Why is Col.
burr not entitled to ask the court to issue
a suhpix-na for the production of those pa- *
] Pcrs ? Is Col. Burr not now before the
I court ? Is he not here upon his recogni
zance.? Has he not been here a conside
: i able time on the tinter book of expectafi
j on, that when Gent ral Wilkinson, that
i P,cat accomplishcr of all thing* arrives,
that an indictment will he preferred a
gainst him ? But has lie mi that account
resigned the rights of defence ? Is he to
be.tongue tied and hands tied without the
privilege of defending himself? ITe. can
not he properly defended without the pi«
I ,luct,°" nf ‘hese papers, and on tliat ac
j c ount lie now demands the interposition of
I the court ; hut say the counsel forth? pro
I ; or lit: on, lie is not entitled to this privilege
j until the grand jury find a true bill and tn
| indictment is preferred. Whv did %vr n« t
; hear this objection when the grand juiy
I wrr? cmpanncllcd ? It was proved yes
| terdayby several law authorities ; it‘was
proved sir by invariable practier, 8c it was
I proved by a wish of ail our souls, that the
Accused ought to have this privilege from
, tlic very commencement of the prosecuti
I on—\\ herefore then sir, are we to be vex
ed and perplexed again with this objecti
on . \\ herefore do they say, it is nrtma
ture on the part of mv client ? I see a
corps of worthies around mo, to justifv
wliat I say—F.very man 1 avert, whoup.
poars oil the grounds of a recognizance,
stands in the same condition as one on bin
U ni-\ re von toshuta man out for evi
dr-nre, because he i*nd\ armsrd. because
hiK life only ran be forfeited ? There is a
harshness in this-Then is R t „ ri v in
this sr ntiment which, hi wr t r, m vn Able
It mav be With this principles of lew. I
tavc .to tli:>nk God, has never Inn' my
practice. The principle* to whi'-h Jim\?
-oen accustomed, hat e aiwaj * agreed will*
truth end the sacred books of the ‘crii
tu!?. No bill is jct found, and t uu*t noi.c