The Wilmington Gazette

              the wilmington gazette published every tuesday by allmand hall at three dollars a year payable ia advance or four dollars ii nox paid withiix a year nom^etsso wilmington jj ; . c tuesday ■ sei^ember 29 1807 '••./•' 11th ykar mr martin wifl you not adopt the same course us to the case of mr israel smith ? bnras it was admitted on all hands that he win not presrnt when the appearance of an expedition which ha been attempted to be proved was set on foot that is the assem blage of the four boau at bunnerhavset's ibund he should object to any evidence be ing given to connect him with that assem blage lore rogera now take t«ng««nco upon i wic columbine as if he had been the per*on fired at ? the lapse of a few days cannot vary the right cf resistance it he had it original ly lie has it still in a former paper we stated that on friday the c u itoni house had in the absence ol the hevenue cutter sent clown to the hook n pilot boat will the uniitil stales colour and officers ; she was therefore to ivs taken by lh british ships as the revenue cutui or she had all her authority . the pilot boat came to anchor near the columbine this furnish ed u pretext for additional insults the pi lut boat was oidered by the commander of the columbine to weigh anchor and remove further off or he would compel her to this order no attention was paid ; she con tinued where she was and no violence waft immediately offered but on satin day nium itlg under pretence oi having missefl a huud the pilot boat was boarded froni the colum bine by men armed with pistols cm lumen and blunderbusses who swore that the nun was concealed on board and thai ihcy would search every nook and corner lor him ac cordingly the hevenue cutler was searched dm not finding the hand whom iliey pnttarwu cd'.hey luumost the scare iilts insisted ilial h «..■. louceulcd among the ballast and threa tened 10 tear up the j»l.-.nk which covered it ! they were told that tin •>• rould do o if iluf rleirkcd bin that if tlic bulhut was disturbed the cutter would iiibiantly upset ui length i ivi!ii exhausted their vocabulary cf inso lencc h .: searchers desised u returned to t!e columbine on maturday afternoon tin t.uuim cunie up to this city perhaps deeming ilhuzitrdbuk to remain anv longer beiow u though in our own watett ! the jason's 6»rge which on saturday brought capt cochranelo hore returned to the stream oft the battery where she iwoi cd upon the signal of a gentleman who had a letter from the british consul which he held in his hand elevated the barge parted fnm her moorings and came towards the battery with eight hands a lieutenant and midshipman as she approached the nu merous and anxious spectators who had as sembled on the rattery crouded to the place for which she was making the officers of the bargd alarmed paused but on being told by the messenger that they would not be harmed they continue 4 their course on coming near the wharf to receive the ittter the commander cf the barge culled out ' fend dff fend off ' aye aye sir turd the men when as if by preconcert ami with the utmost quickness they placed ilic barge along the wharf when six of the men laid down their oars leapt on sixire and culled out • hook it mingled with the croud and made iheir escape the two poor fellows left behind iwoked anxiously at the six who had cs>c»ued a letter received at newburvport from st vincent dated july jyh tales that accounts ot the attack made by the leo pjrd on the chefapeake tiigate had re cently reached ihat place and that it was expected by many that war would take place between the two countries on the aoih july the governor t.f ihe ifland tent tor he american matters in the port to meet at his lioufeat 10 o'clock a m that agreeable to his requeo they re paired thither where they were received in a very tiieidly mam er by the govern or who obferved ihat as he fuppofed the late digigreeable news from america might induce them to haflen their depar ture from the iflanrj he thought proper to inform them that they need be under no ap|>rehenfions of difficulty and might finifb iheir buflnefs as ufual and when ready they might depart ; alluring them that whatever fliould happen between the two countries they flioutd meet w ith no detention — — — communication americans be on yofr cua bd ! the d.<mlh bovernment t the ifland of st thomas having prohibited tl.e ex portations of rcn ifi.>nf , hipping rt)t<(l expect actfaiu and heavy ipf-i on adven tures to that quarter the aclual confutpptiofl cf the i fl anil is trifling and if the prefer t retuiftiou continues in foice produce will in a little time be facrjficed there at lci than halt cod in the united state pb ilndelpbia pa fir for sale in store by the subscriber so puncheons high 4lh prooj l'.uus 38 hhds sugar 50 bbls st.croisdo 30 hhds molasses 6 hhds n e hum 28 bag coffee 10 crates crockery ware atiovitu 4 pipes urundy hanson kelly sept 22 4w mr hay acquiesced ai;ain mr martin i will mention the case of john smith of ohio would it not be better to save the expence of bringing him here as a prisoner by entering a nolle pros in ui in his case '. trial of col aaron burr saturday september 5 mr hay wished to extend the terms or the return which he made yesterday there was one passage in gen wilkinson's letter wihch he was certain the president himself would keep back mr mcrae as the president is now at monticello it it not practicable to send an express to him with a subpoena ducestecum ? it ia advantageous on every consideration to lave the trial completed at this term almost all the witnesses are present ; and perhaps i wtufm be impossible to collect them here a fttvi an express might perhaps return in four days from monticello ; and u it not for tetter to postpone the trial tor thai period than to the next term of the court ? mr hay here read the following " additional itturn : i hereby certify tha upon a more minute examination of the above mentioned i have observed other passages which are entirely of a public nature and which according to tay best judgment ought not to be di«closed ( ud which i conceive would not pa diiclo ed by the president himself if the return rcrc to be made by him geqftuk hay mr hay then observed that he d i not con reive himself at liberty to put this utter into he hands of the defendant ; but that he would immediately send an express to munlicello or instructions ; and that the return might irobably be made by tuesday evening chief jjutict is there any objection then o the court adjourning till tuesday ? mr martin uid he proposed to bring the m*e of israel smith before the court on men mr hay his case is not before the court mr bolts then requested the court to fix blauuerhasnct's bail for misdemeanor it wa already ascertained that he iu not rich thi chief justice determined that he should hhr,e the same as aaron hun ; 5000 dollars the same sum was also tixtd lor israel smith mr hay said he wished to sure as much time as pimihle k thera any objection to our going on to prove the descent of the party from buuinerhmiel'a island till they joined col burr and his taking command of the ex pedition afterwards mr bolts immediately rose and commenced an urgument in opposition to the introduction of any further testimony in the cause he laid down the following propositions : 1st that under the art of congress there can be no accessorial offender i e none arc within the points of the statute but such as are lic'.ing at the fact 3d if the first point be not sustainable no act of o»l burr out of the district can be given in evidence against him 3<l!y again if the first point be not sustain able no act of an accessorial agency can be given inevidence on this indictment charging the olfudcc of acting at the island and not specially that the indicted did the accettoriul act uuy that if the foregoing points be nm sustainame still no avklence of an accessorial agency could bt jjjiven till the itconl of the oaucuui u an uctor in the expedition be produced 5ililj that t!ie act on qlunnerhajset's island canikjl an mini lo u providing or i'c patina the means or a beginning ur setting on i ot i military expedition iliere this joint revolves itr.ell iuio nvo others itf til re was no military expedition in ntuturi y tlirrc 2dly if there wjs a military ex pedition in progress there it was not beftun or set on foot there nor were the means pro vided or prepared theieon in eiuiiiirin in to what constitutes tlir offence under the act if congress he contended that the act was so uncertain and ambiguous that it never could be carried into execution he instan ced many case which went to shew that ac cording to the rules of constructing penal statutes this act could not be enforced he argued that providing the means spoken of in the act of congress required the entire meant ihat the means must be not of an expedition merely but a military expe dition ; that to make it a military ex pedition it must have a military character the most essential means of a military expe dition is a military organisation ; that there must bo a military posture that the means must be adequate to the end ; tint no assem bly f men was engaged in this expedition nor was col burr ever present tt it ; that no intention could aid facts in furnishing the means of a military expedi'ion that war might be without military form but the means of a military expedition must have a military character and that hostile mean will dot do * he meuns must be military a 6th point w;is that no evidence of con versations said to have taken place between any other persons can be given in evidence against col burr unless he were present at the time the conversation passed on thursday mr botti concluded his ar gument he w »» followed by mr hay ; and the court adjourned at on early hour till the next day on account of mr vvirt's indispo sition on friday mr martin offered a few ad ditional authorities he was followed by mr m'rae ; and afterwards by mr wirt who spoke 2 hours mr randolph continued the argument for one hour on saturday mr randolph was to re sume the argument which is to be wound up by mr martin and on monday the judge was lo have pronounced his opinion nlw-york sept 7 fresh outrages — on thursday lust one of our gun-boats coining into port was fired at within the hook by the british armed brig columbine now within our waters in viola tion of the proclamation and the midshipman compelled to goon board where he was de tained interrogated and treated with the u sual insolence this outrage upon our national sovereignty is as gross wanton and flagrant as that which was committed upon the chesapeake the gun-boat is a national ship and when fired and brought to was within our jurisdic tion instead therefore of going on board the columbine by compulsion the comman der of the gun-boat should have struck her colours or have suffered her to have been sunk his having no powder on board as he has alleged is no adequate excuse for with powder he could have niude no effectual re sistance for every wrong there is a remedy this fresh attack could not have been contempla ted or anticipated by the proclamation which i»oei no further than to prohibit intercourse but the attack is upon rights so inherent that no law can abridge them nor add to their force does not this new offence authorise an ample punishment and cannot commo tuesday sept 8 no measure of importance was adopted this day mr hay informed the court that his mes senger had nut returned frou monticello mr israel smith appeared iu court and was hailed on the indictment of u charge of a misdemeanor ; himself in the sum of jooo dolium and hist securities john jl walton and john aleut k in 3500 dollars each wednesday sept 9 the pannclut ti.e jir.'y was jt length com pleted after having excused several oh ac count of their having formtd and delivered opinions unfavorable to ihu ucrustd the following were sworn to try the isnic orris i'uine jamo boot wight ol.acliah uuthright john murphcy ri.btrt mr.'kitn wilt'kto uciitiey vcumuiib smith curler h herkcley jcsste bowleti james peaui robert gordon thomas i.twis the clerk then read the indictment mr j.'uy produced the return of the pre sident to tho tiiipoetta duds leeiim requiring the exhibition of the letter of gen wilkin son lo him of the 12th of november 1806 which has before been noticed the return was annexed to a copy of the letter with the exception ot those parts which he deemed of a confidential nature and which he thought otnr'it not to be disclosed the parts exeep ted agree in substance and almost verbatim with those which mr tiny deemed it his duty to withhold the return is in the following words t on re-examination of a letter of nov 12th lrtof from general wilkinson to my self which having hern a considerable time ont of m ' ii now returned to me i find in it some passages entirely confiden tial pivrn fonny information in the discharge nf inv executive functions and which my duties and the public interest forbid me to make public i have therefore given above a correct copy of all those parts which i ought to peimit to make pubiifi those net communicated are in no wild material for the purposes of justice on the charges of trea son or misdemeanor depending against anron burr they aieon subjects hrelevent to any issuet which can arise out of those charges and could contribute nothing towards his ac quii tat or conviction the papers mentioned in the 1st and 3d paragraphs a enclosed in the letter being separated therefrom and not in my possession i am unable fiom memo ry to ■ what they were 1 presume they are in inv hands of the attorney for the u states tiff mr burr observed that some agreements might be made between hit counsel and the prosecution respecting the letter and that they might go o trial on monday on the application of mr win dr taze well wiuiaoikburg wa excused from ei ing on the jury on account ui the indupostiun of hi friends tile chief justice then observed that the epuit would meet on monday ; as some jc nilltemtnli might be in the mean time m.ijc respecting i he letter mr huy t can con tent to no arrangement but for me to furnish such parts of the letter only as i may deem material to the defence chief justice it there are any slate secrets in thut letter the court would be extremely unwilling to call for its production mr martin gentlamen need not be so ri'upiiloii >, sir upon this subject ; fur we run compel the jppearauce ot the president be fore thii court with that letter mr hay shall i furnish such parts in the mean lime n i am disposed 1 to iturrcnder i mr burr — yes ; under the reservation that such a step hie not impair my tight to dctnund the rt mdiwler the chief justice then observed that the court would meet a^ain at hall after 2 when he understood that col burr was to give bail on the trial for misdemeanor at 3 the court assembled when luther martin ojid thomas langburne were accepted as hi securities monday september 7 mr 3otu the court will recftllrct that when the order was moved for the continuance of the trial for misdemeanor we deprecated the serious inconveniences of delay . it is much to be re§rett«d that we should now he driven into the trial without the letter which we have required ; but as that letter may pro bably be received in the course of the trial we ace willing to enter into it mr hay observed that he should not wish tht trial to be gone into with such a declara tion on the pare of the accused ; that he hnd lent an express to monticelto ngrreumy to hi promise and that he expected him to rdturn by to-morrow 12 o'clock he there for did dot wbh the jut y to be fully sworn today the chief justice did not see any necessi ty for delay on that account the paper would probably be here by the timtl when it is wanted an it will not be requited until tire de-fence is-o|km>ed mr hay wished every preparation for the trml to be mud^to-(uy but hoped that the tri-al wrifl nttt'bi rotie into until to-morrow he expected some coininuniuiition-j from the preriderft which wuuw havu ci>n*ideri«l)le in fluence in htm with respect to his conduct on the trial at tliis moment ilerman imanncrli asset ap peareihit couft,wheh mi 1 . bottsoh^-rved thbt mr blannerheissut had attended fiir the pur pole of understanding his t;uie situation he could obtain iraiv lor the 1 misdemeanor and it was obviou that under the opinion of the court thtf indictment for tveiitoti could not be supported will you mr hay enter a naiu pmeqai to the ui'oiocutioti for rea son i mr hay acquiesced " liven under my hand this 7th d»y of september 1807 tn : jefferson " mr hay then in a concise anil perspicu ous adilre&s to ihe jury opened the case on the part of the prosecution he inferred to tin law of congress on the subject the iht count in the indictment charges the defendant with beginning a military expedi tion at hlanntrhasset's island to be carried on from thence against the dominions of the kin of spain with whom the united state are in a state of peace the snd charges him with setting on foot a military expedition against the territory of the king of spain the 3rd u the same s the last except that the province ot mexico in statad as the ter ritory of the king of spain agnin&t which the expedition is intended the 4th count charges the defendant with providing the means of a military expedi tion against the dominions of the king of spain the 5th i the same as the uh except that mexico is partic.llai'ly mentioned as the province njaimt v'hlcll the expedition is in tended the 6th is the same a the 4th except tlmt be foreign territory is said to be un known the 7th chorees liiin with scttinp on font • military design ogaiuftt the dominions of a foreign state to the jurors unknown richard ncalt was sworn he was pro needing with his evidence totute that iijiin nerhasset sent fnr him and asked him if he could keeps secret whun lie was interrupted by col burr who objected to any relation of conversations with otliei.'s not in his re»ciice tie said he was willfog to indulge tlw.gentle men with the examination of any testimony to prove a military expedition in this state ;