The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-06-20


therefore, is compelable by law to. dIclofe a
faa which would form neceGary and eGeu-
tiai part of this crime. If the letter in queIion
contain evidence of treaion, which is a fact
not dependant on the teGiuouy of the witnefs
before the court, ard therefore may be proved
without the aid of his teGirnony, and if the
witnefs was acquainted with that ,rcaioa when
the letter was written, he may probably be
guilty of mifprilion of treafou, and therefore
the court ought not To compel him TO aniwer
any quefion, the anfwer 10 which might diE-
cofe his former knowledge of the conteuts of
that letter.
But if the letter lhould relate TO the mfde.
meanor and MOTTO the treaion, the court is not
apPrized that a knowledge and concealmeut of
the rnifdemeanor would rSPofe the wtnefs to
any Profecution whatever. On this account
the court was at firf diipofed to enquire, whe'-
Their the letter could be decyphered, in order
to determine from its contents, how far the
witnefs could be examined refps Cling it.. The
courtwas inclined to this courie from conf
dering the queitiou as one, which might re-
quire diicloiure of the knowledge which the
wituefs might have had of the contents of this
letter when 1t was put in CIPHER or when it
was copied by hinfelf, findeed fuch was the
tael. But on hearing the queniOn more par.
ticularly and precifsly itated, .-and finding that
1t refers only to the preient knowledge of the
cypher, it appears TO the court, that the csei.
ton may be anfwercd wtbou, duplicating the
wi,nefs, becaufe his preient knowledge would
not, 1T is believed, in criminal profecuton,
juftify the inference that his Knowledge was ac-
CURED previous to this trial, or afford the means
of proving that fact.
The court is, therefore, of opinion that the
witnefs may aEfwer the quetion now pro-
pounded.
The gentlemen of the bar will underfand
the rule laid down by the court to be this:
1t rs the province of tie court to Judge, whe-
ther auy direct anfwcr to the Gueftion, which
may be propofed, will furniih evidence again(t
the witreis.
IF fuch anfwer may difclofe faa, which
forms niece Gary and eiIents link in the chain
of teG imony, which would be iufficent to con-
via him of any crime, he is not bound to an-
fwer it 70 as to furniih matter for that convic-
ton.
In fuch a cafe the witnefs nult himfslf Judge,
what his anfwer will be, and if he fays on oath
that he cannot anfwer without acculing him
fell, he cannot be compelled to aufwer.
MIR. Wiiiian5 (Counte for Mr.. Willie Gated
that he had misunderstood him the other day
in Court, and in a fubfequent conversation had
obtained more accurate information. He does
underttand part of that letter.
MIR. Hay requeaed that Mr.. Willie fhould be
Sd"eu mo Sou'i. Wbeh nc appeared, Nr.
Hay Intercepted him. Do you underhand the
contents of that letter MIR. U?Zfe. A part
ofit.-Mr. Hay. Was this letter written by
the hand or the direction of A. Burr. Mr.
TlsAham ohje6ted to the quehion. c.. Tngiee.
The witnefs and his council will coafult MIR.
Hay repeated the queftion. Mr.. Ir7ihe. Yes.
Mr.. Hay. Which? BY his hand or his direc-
tions Mr.. Willie. By his direction. II was
copied from paper written by himfelf.
bdr. Hay. with this paper to- be carried
10 the G. jury. l prefume there can be no
ohjestion.-Mr. Bolts. No objeSionl We
ailupon you to fhow the materially of that
letter.-Mr. Hay. deny the necefiity of a.
ny tuch thing. Until this letter is decy phered,
II r'ill be perfectly uniu,esblc to me and to
the @. Jury. II is no more than blank piece
OF papcr,--Mr. Hick5ani. had always under
food before, that the teftimony which is laid
before a Grand Jury, muit not ONLY be legal
in itielf but proved TO be niateria.--Mr. I'M.
famI begged leave 10 Interrupt the gentleman.
Mr.. Willie is anxious to be particularly under.
Rood. He fays that this cyphercd letter was
f'it written by Col. 3. and afterwards copied.
But 1t is the cypher only, which has been CO.
pied from Col. B's original--Mr. Hay. 1t is
quite fufjcient, FIR. Ii Col. B. wrote the cy-
phered part, he will be conhdered AS the su.
thor or the whole.-Mr. Hickman. The rem
tleman has ftarted a curious proportion in
deed had always undsIttood before, that
the whole included the part but it Teens now,
iAat the part is TO comprehend the whole
Mr.. Hay. The remark of the gentleman may
DC good wit, fir, but he certainty knows, that
1t IS not !sw.-C. 7. Can you get this let.
ter decyphered mir. Hay. Is Erick Bol!man
in court with him 20 be caiIed.-T'hsfs gen
tlemen demand proof of the maieriality of this
letter. is this quthion about which the court
will interfere {! Can the court think it proper
to require the materiality of this cyphered let
ter before it is fent up to the Grand Jury?
We naytu,n the very favourte argument of
gentlemen againf themfrlyes. This letter il
either material to the prefent cafe or i, is not.
1t 1t be material, how can they Object 10 it's
production And if it be perfectly inmate.
rial, what injuronV consequences can refuIt
from-its being TENT up to the G. J.. Mr.. Botts.
never fuPPoled, that i, could be auefion,
whether an immaterial paper could be exhibit.
ed before the G. Jury. This queGlou has fire.
queutly been decided in the negative. On the
Trial of Smith and Ogden, Judge Patterlon To-
Iemnly decided aganR fuch proceeding
Were papers permitted TO be laid before
Grand or Petit Jury, before their materiality
wac proved, it would produce an endlefs con-
faG0R, and waite of time. In Wafhnston's
Reports there is cafe, where the court of AID.
peaIs inferred error, becaufe an inferior court
bad permitted the Introduction of an immateri-
= paper and this too, was in civil cafe
Even If the @. J. have called for it, it ought
not 10 be isnt TO them, before lis materiality has