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TRIAL OF COLON’LL BURR. J'r.ui.RAL Coußtf—hn imiznd, Tumrluv, Srfit.29. MO TION 1 JK COMMIT Mi NT. EVIDENCE OF (X .. WILKINSON. Cr\\X INC V.D. I thin'; ! did mention to :Ucm tlie propriety r>f going ii tli-; iii i cos private ciiizens, to elude the vi uar.oc of Burr’s spies, many of whom “ere in New-Orlcans, and would give him tioitce of then departure lion, (hat place. It was also prudent .0 send them in that matiiier, that the jealousy ol the Spaniards, through v.iiotc tenitoiics they hud to pass, might not be exci'rd. They were sent privately, for the surer ss of <hc enterptize depended upon it. Mi. link/mm. Did yoti give them w:itten or oral instructions? v, Both. Q. Have von copiisofthe written instructions ? A. Not here. Q. Will you lin - nsh copies ? [Mr. 11 . y objected to the pro tin don of those orders H>- said that they had 11 right to impeach Tie credibility of the witness, but not to compel him to disclose the orders given to those under his command.J Q Were those orders to seize colonel Butr wherever they could find him ? A They were sent on that service expressly. 1 tliink the orders were conlincd to Natchez; information having been icccivcd tliat colonel Burr had taken up his quarters there. (}. Were there any orders to seize him even in court ? A. I cannot say, hut presume there were not. Q- W ere any private soldiers sent to this service ? A No. Q Were any soldiers sent to licit Jones’s gtin-boais ? .A. Infantry wcie furnished to supply the place ol marines in all the gun-boats. Q. Were any inslrue ions suit by you, that the men in lieut. Jones's gun-boats should act ? A 1 gave lieut. Jones no orders ; as he was not under my com mand. Q Was commodore Shaw considered under your authority ? A. He was rather con- Bideicd co-operating with me ; but he had a discretion of his own Q. Was there a rccom- Tiitmu.tion to commodore Shaw to give direc tions to liculenal Jol.es to take any measures to apprehend colonel Bun ? A. I think the : orders rct|tiii eij him to do so. Q What ortlci s I were given forth:: disposal of colonel Burr ? A. ‘ I’hc orders were, that he should he pul on boaid 1 a vessel and sent by the way ol New-Orleans to the city of Washington. Q Were these or- I tiers written? A. I belie,e tliey were. Q What orders have you from die government, or did you do it on yom own authority ? [(ien eral Wilkinson took time till to-morrow to con sider the subject and examine his papers.]) Q. When you were at Ncw-Orleans, were no: Id le-s, addressed *0 other persons, frequently r'lght to you fro 1 the post-office; by whose ciders were they delivered to you; were they opened, and with what view? [Mr. Hay llio’t that they had no right to ask such a ques tion. It light he important between the U. St ites and general Wilkinson But it does not appear to be proper to interrogate him as to his Conduct any where, unless it has some bearing on the cause ; nor can a witness he asked any question, the answering of which might sub ject him to a prosecution. If we had intro duced evidence on th.it point, they had a right to cross-ex.l.nine him. Mr. Wi khtim. We may suppose, without impeaching the credit of gen eral Wilkinson, that he will give as favorable an account of his conduct, as any man standing tn nis situation may he disposed to do (ienei iil Wilkinson has detailed a number of facts to account fortnc conduct of < oloncl Burr; he has taken very strong ground. We wish to shew tlt.it the general has the strongest possible mo tives to eliminate colonel Burr. We weie permitted to ask him about sending officers in disguise to seize colonel Burr: we wish now to prove some other seizures. This evidence lias a direct reference to the case of col. Biiit II general Wilkinson took all these incasivcs. Jt will surely have a tendency to weaken his testimony. Mr. Martin. We mean to shew that general Wilkinson is identified wi.h the government; and the government hud declar ed they would justify him. We have . wit ness to prove the express declarations of hs sec retary at war, that general Wilkinson stood low with the government, till his energetic measures at New-Orlcans had raised him i the estimation of the president. They can only justify his acts by shewing an impropriety in the conduct of colonel Burr. The more we shew that the constitution has been trampled e i and the lights of the citizens invaded, the more they will endeavor to shew the impro priety of the conduct of colonel Bun in order to Mr. Hay. Mr. Martin has avow ed the motives of colonel Burr’s counsel to be. to identify general Wilkjnsi n wilt the gov ernment. Admitting that general Dearborn had made the declarations ascribed to him ; •admitting, that the president had formed tli it opinion of general Wilkinson, how cut his an tjwer to the question propounded, have any bearing on this case ? Suppose general Wii kinspn should say, that in consequence of the expected arrival of colonel Burr, the agitated state of the country, and a know ledge that he was surrounded by the accomplices and parti i .tis of Buit in New-Orlcans, he had taken let ters from the post-office (and he would only have done what he ought) how tonld it affect the present case ? It is manifest that the an swer of general Wilkinson must leave the ques tion between the United states and colonel Burr exactly where it was before. Mr. Wickham W hen these questions were asked Mr. urrav before, they were thought proper, and he was even cross-examined bv the counsel for the prosecution. The gentlemen had ascribed to colonel Burr improper acts. Now, to impeach general Wilkinson’s credibility, vc shew that lie has been gt ctv7oLf.t iftA f*. bf nht m* tcicstcd to shew the conauct of colonel Burr to be improper, in oidei to justify his own ? Air. hiker. Suppose, says Mi. Ilay, this de lac ,lion of general Dearborn to be ti uc ; uppose that general Wilkinson did not deserve to amid high in tlie conlidence of the government; would it not have any bearing on the cause, would it not leave the question between the United States and col. Bun- exactly where it was belore iAt one time the counsel on the other tide seem willing to give the geneiul up. -vow they stand ioiwaickas the champions ol the vvoitliy general. Suppose it be proved, that he has llnust his hand, or ui.eaed others to doit, into the post-office and pillaged ictleis.— Suppose it be proved that he has made era suk s m ictieis and then sworn that translations ct them were true copies, which were as much like the originals as any other thing ; arid that he has sworn to this, that and the other, whe ther true or luise, will not ail these tilings tit led his credibility ? Mr. Wickham said that it was a question entirely ior the consideration ot general Wilkinson himself. If be thought proper to answer the question, it was not trie business of the prosecution to lntei sere. Tlie Chiel Justice alter mentioning some rcmaiks on the nature ot ihc question, absolved, that general Wilkinson was not bound to answer any question that might criminate himself. Some observations were made as to the extent of the opinion of the court. Air. Wirt suppo sed, from die decision of the court in the case ot Wyliic, that general Wilkinson could nol be bound to answer die question. Mr. YV ick ham thought directly die reverse Mr. Wi.kham to general Wilkin tart. You have heard die opinion oi the court. Were or were noi letters addressed n>other-persons fre quently sent from the post office to you; by whose orders, and were they opened, and with what view i Can you answer tint question \yith oui criminating youisell ? A 1 shall not an swer that question. Mr. Wukhum. YVereoi ders sent to sop and examine travellers ( A I'hcte were. 1 hese weie the joint orders ol governor Claiborne and myself. At that lime colonel Burr was daily expected at Natchez witli zuoo men. and 1 wished to cat oil all com munication between that place and Ncw-Ur leaus, in order to prevent bin. from receiving information from his adherents, and to gain time lor strengthening our defence. The im pel ions circumstances which justified thismea suic, I will relate. A general panic had seized the friends of government in New-Orleans. [Here general vY ilkinson was interrupted by me lOunsei ol colonel Burr, who objected to hi's slating the motives which governed him. Air. W irt sud, ilia; it die witness were called on to accuse lumseif of arbitrary acts, he ought to ex plain the motive with which those ads were committed. Mr. Wickham said it was then wish to goon with the cause, without being in len uptcd with the explanation of tire witness ; and after they had gone through, the counsel for the prosecution might ask for any further explanation But it was well known that the proceedings ol each day are published ; and it is important to the teclings oi the witness, that nc should state tue grounds on which he pro ceeded. Mi. Martin, i tic proceedings have hei etoforc. been published without regard to tlie feelings ol cotonei Bun.] ir. I. tckliam to gen. II ilkinson. \\ neu did general Adair arrive in ew-l>rleaoa ? On die 14th of January Mi’ W ‘irkn.nn. Has your conduct in seizing Adair, Ogden, Sw.u tvvout and others, been ap proved or disapproved by the government ? Have you received any communications from die go'-ernineiu on ih.-.t subject? Mr. Hay. It has been the constant etlori ol the counsel on the o'he i side to niemiiy general Wilkinson with the government. We have heat'd of the plundering ot post-oflices, violating oaths, and prostrating private rights. Now it is asked il the govern icni approved of these acts. Is i. decorous is it proper to pursue this course : 1 hey may usg questions lo implicate general Wilkinson; but is it propel to endeavour to cast an imputation upon the government ? 1 .eel no solicitude on the subject ; for when all the circumstances a:e considered, and the real situation of that country understood, tho’ 1 win not say that the measures were strictly lawful, yet 1 will say the exigencies of the times called hii them ; and'hat the person who held the high and responsible situation of general Wilk inson, was bound to pursue the course which he did. General Wilkinson still letains the com mand of the artny. II the gentlemen wish to infer from that circumstance, that the govern ment approved ol his conduct, let them do so. Mr. IVickham. It is not our object to criminate the government, but to obtain the truth. We hope that general Wilkinson will not sav that his conduct has been approved by the govern ment. Is this a state secret ?—'i’he Chid Jus tice said that he should be sor-y to require an answer which would state the opinions of the government. He was rorry that an objection hud been made to answering the question. Mr. Hty said, he hedeved that the government knew i othing about it, and rttherthan it should he supposed that the administration directed measures which they were unwilling to avow ; —let them goon. He was willing that tlity should go on ; and instead of making this all enquiry into the conduct of Burr and his accom plices, let it lie solely, as it seemed to be, an enquiry into the conduct of the government j Mr. \\ ickhatu repeated the same question to general Wilkinson, whether his conduct, in seizing general Adair, Ogden, Swartwout and othet s, had been approved or disapproved by the government, and whether he had received any communication from the government on the subject ? Ceneral Wilkinson said he had no objection to answering the question except so far as the answty might be a dhs ffcsure of tvhat mlgf.t be deemed private in structions, lathe first instance, said general Wilkinson, I acted on my ovvy responsibility. I have said that 1 was left six months without ot dot s, ilut 1 seized no man under the orders of die president. Thursday, October 1. Gen. Wilkinson was alrout to explain more fully some ot the interrogatories put to him at his last examination—when he was interrupted by Mr. \Vickhunt, who declared that he fell no disposition to interfere with the explanations of the witness, but was vet y anxious to go on with the cause. With respect to the motives with which any act was (’one, he knew nothing and cared nothing. ‘1 lie Chief Jt lice declared tliui general \\ ilkinson had a right to explain any interrogatories ; and again repeated the substance of the opinion which lie had before given. General \\ ilkinson proceeded—i have been asked whe her in October 1806. I did not expect immediate hostilities with the bpan i.utls ? I was required to account lor the cause of the sudden change of position of the Spanish army? I was interrogated as to the conven tion wi h the Spanish command t t, and with peculiar delicacy I was asked rv her any mo ney was received as a condition ? ..Iso whether I tiad not posted guards on the hi /ways about New-Oi leans to interrupt travcllei v ? To these interrogatories, quite unexpected I made such replies as I was then enabled \o uo from me mory. By referring to my papers, they will shew that 1 did expect a war with Spain so ear ly as September 1806. (Here the general re fer) ed to an extract of his letter of the Bth of September, and his letter of the 4th of October 1806, to the Secretary at War, which were read —see notes’ M. ,\.) On my advance to taka the command of the barrier post, l passed Fort Adams on the 12th of September. There I found two letters from colonel Cushing* detail ing his correspondence with the Spanish com mander. I was then asked fora eopv oftnc convention. lam now about to do that lor which my country and gentlemen of my p, b tession may perhaps condemn me. But under the charges and insinuations by which my cha racter bus been assailed, I flatter mysell, ,hat shoitid I be guilty of any impropriety, the cir cumstances m which 1 an- placed will excuse me.—llcte are ail the papers relative to that convention. (General Wiikinson produced a number of letters, containing the correspon dence between him anil theJdpanisli command ants about the time the troops of that nadon re ciossetl the Sabine. Mr. Martin said, tt.ev wished to have the papers, and hoped the court would have no objection. The Chief Justice observed, that he had no objection, but wished it to be distinctly understood, that he would not coerce the production of any paper which re luted to a negotiation between this country and any foreign government. Mr. Martin said, that would depend upon circumstances. lie held it a sacred principle that il the government thought proper to pro secute a citizen, they were bound to produce every paper which might be necessary for his defence, or to give up the prosecution. Mr. Hay thought it would ire improper to read the papers ; because they related to a negociation with a foreign government, and because they itatl no relation to the subject before the court. General \\ ilkinson had, indeed, from the insi nuations which had been made, been induced to produce those papei3 ; but it was evidently done with a considerable degree of embarrass ment ; and would not justify the reading of them, if it were otherwise improper. Mr. Wickham. I have asked for the convention with the Spanish commandant, but am told that it is a state secret. I concur with Mr. Martin, that when an individual,is prosecuted by the government, no state secrets should pre vent the production of every paper necessary for his delencc. General Wilkinson said he wished it to be understood that these were very imperfect translations of t lie letters from the ori ginal Spanish, and therefore, that he could not deliver them but under the stipulation that they should be accurately translated before publica tion ; as he had discovered governor Cordero and governor Harrara to be officers of polished education, from his orrespondence with them. He had made this stipulation as a duty which military men owe to one another throughout the world. These letters contain the conven tion ; a convention without an article. [ The Chief Justice said that he would not compel the production of the convention unless its bear ing on the case be shewn. Mr. Martin. We have a right to it—l hope it will be noted that wc have made a solemn demand of these pa pers.] General Wilkinson proceeded. The next question which was asked was, whether 1 had not made private communications to lieu tenant Jones. I have said that 1 gave no or ders to lieutenant Jones ; but if I had, here are documents to shew, if not a justification of my conduct in all the measures I presumed, at least an extenuation. [Here general Wil kinson presented several papers shewing the agitated state of New-Orleans, and the dangers with which it was threatened. They were not read. See notes, O. P. Q R.] Mr. Wickham to general Wilkn'.son. Do you recollect the last question I put to you ? Has your conduct in seizing Swartwoot, Bellman, Ogden and Adair, been approved or disapproved by the government; and have you received any com munications from the government on this sub ject ? General Wilkinson said he must refer to his honor to know whether he was bound to answer that question. [The Chief justice de clared that it might be answered under the re - trictions already laid down General It - kin son. I can say that three of those pi . son ;. perhaps four, were seized on mv own respon sibility, without ati v orders from the govern ment, Mr. Wickham, Which three ?A. tollman, Swartwout, Cgtier., and perhaps Adair. Mr. liukham. iluu you any orders then, or afterwards to seize them ; hail jou any orders with respect to tl.e seizure ot colo nel Buir by military force ? A. No ; not at that time. Q. Had you any afterwards i Ge neral Wtlkinson. That is a question of vety great delicacy with me. (Addtessing the judge) can a question be fairly put and a an swer coerced which may destroy a man’s hon or ? [Mr. Wickham said there was no rule of law which pretented a witness from giving an answer unless it subjected him to a criminal prosecution. Merc sympathies were no cause of refusal. How ever unpleasant these ques tions might be to general Wilkinson, it would be a shameful dereliction ol duly in the counsel of colonel burr not to put them. He saiu that lie had not experienced any sympathies to wards his client.] General Wilkinton to the Judge. Is a trial before a court martial similar to a criminal prosecution ? I might be subjec ted 10 military punishment, to as severe pun ishment as could be inflicted by a civil tribunal, for revealing my orders, l ire Chief Justice said that lie was not sure that general Wilkin* soli could be required to answer that question. [Mr. Wickham contended that there could be no articles of war which could punish a man for disclosing what he is called upon to declare in a court of justice. The court had a right to require the disclosure, and would enforce its own authority. Mr. M‘Rae contended that w hen the answer required would lead to the discovery of a fact w liich might subject a man to punishment, it was always deemed a good reason to withhold it. He understood the an swer which might be given by geneial W il kinson to be of this nature. The question was calculated to extract from him a fact, the dis* clo .m'e of which might tend to subject him to punishficM. He could not say what would be done before a military tribunal ; but it was possible that lie might be punished if he should answer in a particular way. Suppose he should say that the government did not authorise him to seizs the persons of Burr and his accompli ces ; did that he acted upon lbs own responsi bility ; or suppose lie should 1 e acting under the authority of government, but upon examin ing his powers, should find that he had trans cended them ; would not a disclosure of this fact civ mate him, and subject him to prose* culir n? The Chief Justice said that th r ques tion dkl not lead to the fact of seizing those persons, but to the authority with which it was done. If general Wilkinson had con : itted the act with authority, be must shew his decs. Mr. -Wickham said he did nor believe that any thing which general Wilkinson could say would be legal evidence in the cause It was not that kind of evidence which was ad missible in prosecutions of this nature. Bi.t it was importantrto know what orders the go vernment had given, and whether he had ex-, ceecied those orders. Mr. Martin. We wish* to know the conduct and character of the go vernment on this occasion. We wish to know whether any, and what orders were given by the government. Is there to be one rule, as to the prosecution, who wish to uike the life of a man away, and another rule as to the man whose life they seek to take ? Mr. Hay had no objec tion to an answer from general Wilkinson as to the conduct of the government throughout. He said that Mr. Martin had disclosed his real object to be, to try the government and not the accused. Will this ascertain the innocence or guilt of colonel Burr ? The object evidently was to arraign the government before the bar of the public; but he was perfectly satisfied that when the conduct of the government should be kno ■ n, the people of the United States would think that the government had done exactly what it ought to have der.e. Mr. Wickham. In commenting on the evidence we sh til endeavor toshew that a number of witnes ses have been brought forward by the govern ment who have taken a most decided part in the prosecutton; and that their real object has been to render themselves acceptable to the govern ment. General Wilkinson. I had an order Itom the government. Mr. Wickham, from what de partment? A. From the administration. Q. From whom? A. From Mr. Jefferson Q. Have you any written order? A. I have among my papers, but I will net produce it. I had rather go to jail. Mr. IFiekham demanded the production of the order; but said, that if general W ilkinson requited time to consider of the consequences of a refusal, he hajl no objection to allowing it to him. General* MV/. kina on (addressed the judge, you are, from pro fessional experience, mot e competent to decide on the propriety of revealing my orders, than I possibly can be. Ihe letter which conveys the particular order alluded to, may embrace a variety of other matter, many parts of which it would be highly criminal in me to divulge. I conceive I should forfeit my honor and the confidence of all military men, if I were to re veal my correspondence with the government, without the command of my superior. (Mr. Hay had no doubt but the order was in strict conformity with law; but if there be piivate and confidential communications in the letter, it would not be required of general Wilkinson to produce it. Chief Jus ice. If the otdet bo mingled with other things, private and te nfi. ■ dcntial, the court will not require its ptoriitc* I tlon.) Mr. , Wickham to general Wilkinson. ’ Did you, by letter or otherwise, request .un person not of the army to seize colonel Butr, 1 and put him on board a vessel * A. I gave In structions to a gentleman who is now here, Silas Dinsmore, esq. and who is not of the flr mv. Q. Did you give such orders u>. others ? A. 1 recollect Dr. Carmichael ■ but no other person exrept the officers ofthear* my. q. Do you recoiled expressing to a;t^