the time the letter was received, rendered obvious, by the state of preparation.

Thus was the officer of the United States, whose duty it was. to institute prosecutions for breaches of the laws, left in the dark, to grope his way, in a case threatening the peace, and even the rupture of the government. While he had leisure to set himself down, and make the following inferences:

1st. The president has been duly informed of this brooding conspiracy to disturb the peace, if not to affect the integrity of the United States. He has had the names of the ostensible projectors and promoters of it; he has taken no visible measure to check its progress; while it has become an object with public journalists-but I will not impute to him, a positive

connivance.

2d. He has withheld from me both information and instruction-leaving me thus under every discouragement, to take my own measures, at the hazard of his displeasure and the loss of my office: so far, however, I feel conscious that I have discharged my duty to my country, be the consequence as it may.

3d. It does not appear that the president has, by the agency of any other, instituted any means to acquire information, if mine did not satisfy him; although it has been published and proclaimed that the expedition would commence on the Ohio, about the middle of November. Not even a proclamation, the usual mode of warning, has yet been made public: it is now late in October. Is it intended when Burr is gone to send a hue and cry after him? But I will not perplex myself by endless conjectures: the November session of the court is approach. ing, thought he, I will at least make an attempt to explode the treasonous project, by getting the ringleader arrested, at its very opening.

Such had been the reflections of the attorney, before his ar rival at Frankfort the 1st of November. He was confirmed in his purpose, by finding that the governor had received no communication from the president, and was as to any purpose of impeding Burr's progress, perfectly listless. The attorney,

had also ascertained, that in the neighbourhood of Louisville preparations for the expedition were in considerable forwardness. His essay in court and its result have been narrated.

The 16th of the month, he transmitted an account of his preceedings to Mr. Madison, secretary of state for the United States; and still kept on his post of duty; seeing that events were ripening the crisis which was soon to unfold itself to every body's view.

Having ascertained that Mr. Floyd had returned home, and that his attendance, as well as that of other persons whose evidence he wanted, could be procured, the attorney, under strong impressions of the guilt of Colonel Burr, and the approaching readiness of his project for execution, repeated, on the 25th of the month, his motion for a grand jury, and subpœnas; grounding it on his former affidavit.

The motion was granted; and the 2d of December fixed for the appearance in court. Accordingly the grand jury ap peared, were empannelled, sworn, and charged. Without considering it very material to discriminate the days, it may suffice to state, that on calling the witnesses, it appeared that General John Adair was absent, as also Mr. Luckett. attorney was again under the necessity, in his judgment, of asking for a postponement. Alleging that the absentees were important witnesses for the prosecution, and especially General Adair, without whose testimony, he could not safely go into the trial.

The

Colonel Burr, attended by his former counsel, was in court. Mr. Clay now rose on the part of his client, objected to the delay and suspense proposed-said, that Colonel Burr, who knew himself innocent, and for whose honour, and innocence, he could pledge his own, was alone apprehensive of delay. That he had expected to have left Kentucky ere this; that his business called him away, while delay was likely to be injurious to him. That it could but be painful to Colonel Burr, to have to dance attendance on the attorney's motions and mock prosecutions, from time to time, without knowing when

he would be ready, or that he ever would be ready. How, indeed, should he be ready for trial, when he had nothing to investigate. He should be compelled to proceed, or dismiss and abandon the prosecution.

The attorney for the United States, replied, that Colonel Burr had not yet been cited, that his attendance was voluntary; that the proceeding was solely on the part of the United States, and that the colonel, not yet a party, was rather an intruder; that until indictment found, there was no party to be arraigned, consequently no defendant to be heard; that he was in the discharge of a high and important duty to the United States; that he had the control of the subject in its present stage, and that he ought not to be interrupted by gentlemen, who anticipated their occupation. That when Colonel Burr was indicted, it would be time enough for him and his counsel to appear. That the process had been executed on the witnesses, they had not attended; that he was the person to judge of their materiality, and he thought them material; that there had not been time, nor a complete failure, on which to ground the process of attachment. That if the process of the court did not compel their attendance, it was not for him to do it; but that it was for him to determine whether he could go on or not. That indeed it rested in the sound discretion of the court, whether the grand jury should be kept together or not; and he had requested that they should be kept empannelled. He would like to know, also, if he was to be interrupted and catechised by gentlemen, styling themselves counsel for Colonel Burr.

The gentlemen replied successively. Mr. Allin remarked, that he was an attorney in the court; that he had a tongue, and the right to use it; that he cared not in what character he was viewed, whether as counsel, friend, or foe of Colonel Burr; he hoped he yet had the liberty of speech, and he did not know that he could use it in a better cause, than in reducing the pretensions of the United States' attorney, to their just limits. That he had yet to learn whence he derived the right of accusing a man to his face, and then denying that he was

in court: of taking what time he pleased to find an indictment against him, which may be dissipated with a breath, when he is allowed to speak, and yet denying him the right to speak, lest it should prevent its being found a true bill.

Why, sir, to some men, the finding of such a charge as the affidavit makes out, would be thought no trivial matter: to Colonel Burr, the affidavit itself may be thought a charge, and produce a desire to see it repelled. No charge, no party, no defendant! until an indictment found! He had not thought the gentleman willing to admit so much, until he heard it from himself. And even now, he thought him mistaken. Of one thing he was sure, and that was, that Colonel Burr was as much in court as if he had been brought there by process; and as much entitled to counsel. That it mattered not whether he was retained by Colonel Burr, or not; he had a right to volunteer for who he pleased, and the bench would not undertake to direct the bar, for whom they should, or when they should appear. If the gentleman, who would prosecute, if he could get witnesses to prove his allegations, has so much leisure on his hands, as to find all times convenient, it may not be the case with all others; and it certainly is not with Colonel Burr, nor myself. It is, therefore submitted to the court whether the attorney has made out sufficient cause for continuing the grand jury, unless he will proceed with his case.

Mr. Clay demanded, if this proceeding was in an American court of justice? in a Kentucky court? where men were free, and where the liberty of speech, as well as that of self defence, was yet the common right of all, and held sacred? where gag laws were proscribed, and alien and sedition bills execrated? What! said he, does the attorney for the United States think all law and all right with him? Whence did he derive such an idea? Let me assert, that others have rights; that men are here upon an equality; that if a prosecutor has rights, so has the prosecuted. There is no one clothed with exclusive privileges here. Any man, and every man, has a right to be in court; and none is obliged to sit by in silence while his name is used, and see the trap set, or the net spread, for his liberty

or his life, or any personal convenience whatever. The gen tleman says, when an indictment is preferred, we may answer; that until then we have no right to interfere, or as he insinuates, obtrude ourselves upon him, in the discharge of his high duties. He is mistaken: we are not intruders; we have duties as high and as honourable as his to discharge. If he prosecutes, we defend; and we assert a right to be heard, at every stage of his proceedings.

Having, may it please the court, said this much for the right to speak, (said Mr. Clay,) I will now add a few remarks, as to the motion of the gentleman. Since he cannot tell when his witnesses will attend, or that they ever will, it is perfectly unreasonable to keep the grand jury in waiting, and Colonel Burr in suspense. He has business, they all have business which requires their attention. If the witnesses mean to attend, they will be here to-morrow. What we contend for, is, that there shall not be a distant or indefinite postponement, without discharging the grand jury. It is hoped and expected, that the gentleman will proceed, or at once abandon the prosecution. And as he desires the opinion of your honour, whether we are intruders or not, so if you think it right to silence us, I expect you will let us know it.

Upon the latter point, the judge refused to interfere.

The attorney finding himself not supported by the court, in his ex parte idea, and that he should have the full weight of the colonel and his counsel to encounter, replied with some animation, to the following effect. This, said he, is indeed a land. of liberty! extravagant as it may be in theory, ever outrun in practice, bordering upon licentiousness. A land, where men not only say what they please, but do as they please. A land prone to intrigue, and the refuge of intriguers. A land, where the laws may be violated with impunity, since there is not time to bring the culprit to trial, and to justice. Yes, I well understand Colonel Burr's business, and its urgency. He has good cause for requiring despatch; especially for an indict ment, in the absence of witnesses, if he cannot coerce a discharge of the grand jury; and a final abandonment of the pro