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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..e45e7d5 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #55073 (https://www.gutenberg.org/ebooks/55073) diff --git a/old/55073-0.txt b/old/55073-0.txt deleted file mode 100644 index 74d7654..0000000 --- a/old/55073-0.txt +++ /dev/null @@ -1,2071 +0,0 @@ -The Project Gutenberg EBook of The Trial of Aaron Burr, by Joseph P. Brady - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - - - -Title: The Trial of Aaron Burr - -Author: Joseph P. Brady - -Release Date: July 9, 2017 [EBook #55073] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE TRIAL OF AARON BURR *** - - - - -Charlie Howard and the Online Distributed Proofreading -Team at http://www.pgdp.net (This file was produced from -images generously made available by The Internet Archive) - - - - - - - - - -THE TRIAL OF AARON BURR - -[Illustration] - -[Illustration: CHIEF JUSTICE MARSHALL - - _Frontispiece_ -] - - - - - THE TRIAL - OF AARON BURR - - - BY - - JOSEPH P. BRADY - - _Clerk of the United States District Court for the - Eastern District of Virginia_ - - - [Illustration] - - - NEW YORK - THE NEALE PUBLISHING COMPANY - 1913 - - - - - Copyright, 1913, by - THE NEALE PUBLISHING COMPANY - - - - -PREFACE - - -Among the records of the United States Courts at Richmond, Virginia, -are the original papers in the case of the “United States versus Aaron -Burr, Indictment for Treason.” The tawny fingers of time have dealt -gently with these papers, and although more than a century old they are -still in a good state of preservation. - -The story of the trial of Aaron Burr has often been written, and there -is little new that can be added; but these old manuscripts and official -documents, so historic in their character, should at least in some -form survive the ravages of time. It is with this thought in mind, and -with the hope that possibly some fact not already recorded in history -might be disclosed by the original papers, that this brief history is -written. - - - - -LIST OF ILLUSTRATIONS - - - Chief Justice Marshall _Frontispiece_ - - FACING - PAGE - Warrant for arrest of Burr 20 - - Affidavit of Burr for subpœna _duces tecum_ for President - Jefferson 40 - - Subpœna _duces tecum_ for President Jefferson 50 - - Subpœna _duces tecum_ for President Jefferson (continued) 50 - - Findings of the Grand and Petit Juries 70 - - - - -THE TRIAL OF AARON BURR - - -On the evening of the 26th of March, 1807, Aaron Burr, attended by -a military guard of nine men, under the command of Major Nicholas -Perkins, who had been largely instrumental in his arrest, arrived -in the City of Richmond, Virginia. Immediately upon his arrival he -was lodged in the Eagle Tavern, the leading hostelry of its time in -that city, where he remained confined until March 30th, when he was -delivered to the civil authorities by virtue of a warrant issued by -Chief Justice Marshall. - -The preliminary examination of Burr was private. The warrant was -served on him in his apartment by Major Scott, the Marshal of the -Virginia District, who, after informing him of the object of his -visit, conducted him to another room, where he was brought before -the Chief Justice. The few persons present were Cæsar A. Rodney, -Attorney-General of the United States; George Hay, the United States -Attorney for the Virginia District; Edmund Randolph and John Wickham, -counsel for the prisoner; the United States Marshal and his two -deputies; and a few friends of the counsel for Burr. - -The evidence introduced on behalf of the prosecution was a copy of the -record in the case of Bollman and Swartout in the Supreme Court of the -United States, which contained the depositions of General Eaton and -General Wilkinson directly connecting Burr with the offense charged -against him. No verbal testimony was heard, except that of Major -Perkins, who told of the arrest of the prisoner and of his conveyance -of him to Richmond. - -At the conclusion of the evidence a motion in writing was submitted by -Mr. Hay for the commitment of the accused on two charges, viz:-- - -First. For a high misdemeanor, in setting on foot, within the United -States, a military expedition against the dominions of the King of -Spain, a foreign prince, with whom the United States, at the time of -the offense, were, and still are, at peace. - -Second. For treason in assembling an armed force, with a design to -seize the city of New Orleans, to revolutionize the territory attached -to it, and to separate the western from the Atlantic states. - -It soon developed that this motion would cause considerable discussion, -and as previously agreed upon by counsel, with the approval of the -Chief Justice, the further hearing of the case was adjourned to the -House of Delegates in the Capitol, where all subsequent proceedings -were had. - -The argument on the motion lasted two days. It was opened by Mr. Hay -for the United States. He was followed by Mr. Wickham and Mr. Randolph -for the accused. Colonel Burr spoke about ten minutes in his own -behalf, and Mr. Rodney, the Attorney-General of the United States, -closed the discussion. - -The third day of the trial, the Chief Justice delivered his written -opinion. “On an application of this kind,” says he, “I certainly -should not require that proof which would be necessary to convict the -person to be committed on a trial in chief; nor should I even require -that which should absolutely convince my own mind of the guilt of the -accused; but I ought to require, and I should require, that probable -cause be shown; and I understand probable cause to be a case made out -by proof furnishing good reason to believe that the crime alleged has -been committed by the person charged with having committed it.” The -Chief Justice then reviews the testimony of General Eaton and General -Wilkinson in the Swartout and Bollman case to show how far these -charges are supported by probable cause, and in conclusion delivers -himself as follows: “I shall not therefore insert in the commitment the -charge of high treason, since it will be entirely in the power of the -Attorney-General to prefer an indictment against the prisoner for high -treason should he be furnished with the necessary testimony.” - -Burr was now called upon to give bond, and the amount to be required -of him gave rise to much discussion. The Chief Justice stated, “that -he wished it to be neither too large to amount to oppression, nor -too small to defeat the objects of justice.” It had occurred to -him that the sum of ten thousand dollars would perhaps avoid both -these extremes. Mr. Hay earnestly insisted upon a larger amount, but -the amount was fixed at ten thousand. Burr was then bailed for his -appearance at the next term of the Circuit Court of the United States -to convene at Richmond on the 22d of May next, to answer the charge of -high misdemeanor. - -Aaron Burr was now at liberty. President Jefferson was enraged at the -result of the first trial. The feeling between the partisans of the -Administration and the Federalists, to which political party Marshall -belonged, was rampant. The friends of Jefferson charged Marshall -with having permitted his political bias and personal dislike of the -President to warp his judgment in favor of Burr throughout the trial, -and Jefferson in one of his letters to Senator Giles, written a few -days after Burr’s first examination at Richmond, refers to the _tricks_ -of the judges in hastening the trial so as to clear Burr. It was -evident that Jefferson was to be the real prosecutor of Burr, and had -made up his mind to convict him at whatever cost. - -The 22d of May, 1807, the United States Circuit Court for the Virginia -District convened in the House of Delegates in the City of Richmond, -Virginia, with Chief Justice Marshall and Cyrus Griffin, District -Judge, on the bench. - -Long before the hour the Court was to meet the hall and the entrances -to the Capitol were thronged with people. Not a few of them were -witnesses and persons summoned as grand jurors, while others were -attracted by the notoriety of the trial. There could be seen John -Randolph, of Roanoke, “the brilliant, eccentric leader of the Quids,” -in the House, and afterwards United States Senator from Virginia; -Andrew Jackson, who was loud in his denunciation of Jefferson and -his administration for “persecuting his innocent friend”; Winfield -Scott, then a young lawyer just admitted to practice; General Eaton, -with a grudge against the Government for its failure to pay his claim -for services and cash advanced while consul in Barbary, and with -whom Burr had talked with great freedom about his plans; Commodore -Truxton, another disgruntled officer of the Government in whom Burr -had confided; Col. Morgan, a valiant old campaigner from the West, -and his two stalwart sons, whose services Burr tried to enlist, but -whom Jefferson credited with giving him the first intimation of Burr’s -designs; John Graham, who had been sent out by the Administration to -the Mississippi territory as its confidential agent to circumvent -Burr and expose the conspiracy; Colonel Dupiester, one of the leading -spirits in the plot and Burr’s trusted friend and ally; Jonathan -Dayton, formerly speaker of the House of Representatives and Ex-Senator -from the State of New Jersey, and John Smith, lately a Senator from -Ohio, both friends of Burr and prominent in the conspiracy with him; -Dr. Erick Bollman, an educated German, who had recently distinguished -himself by a gallant but unsuccessful attempt to rescue Lafayette -from prison in the castle of Olmutz, Austria, and in whom Burr had -confided. Jefferson expected Bollman to give testimony that might -criminate himself, and during the trial sent through District Attorney -Hay a pardon for him, which Bollman indignantly refused to accept. And -thither also came Governor Alston of South Carolina, and his wife, the -beautiful and accomplished Theodosia, the only daughter of Aaron Burr; -who had fled to his side the moment she had heard of his arrest. - -The court was formally opened at half past twelve o’clock, and probably -there never was such an array of learning and legal attainments as -was present on that occasion. Foremost and overshadowing all was John -Marshall, the Chief Justice. “Gentlemen of the profession,” said -Parton, “who witnessed the trial, who saw the effective dignity with -which the judge presided over the court, who heard him read those -opinions, so elaborate and right, though necessarily prepared on the -spur of the moment, regarded it as the finest display of judicial skill -and judicial rectitude which they had ever beheld.” - -Seated at the bar and appearing in behalf of the United States were -Colonel George Hay, William Wirt and Alexander MacRae. - -Colonel Hay was a son-in-law of James Monroe, who was afterwards -President of the United States. He was a lawyer of great industry -and much ability, and bore the laboring oar in the trial. He was a -zealous partisan of Jefferson, and was assisted in the prosecution by -almost daily communications from him. Later he was appointed United -States judge for the Virginia district. Mr. Wirt was present at the -personal request of President Jefferson. He was the most eloquent and -accomplished advocate then at the Richmond bar. There was no one whose -rising to speak “so instantaneously hushed the spectators to silence.” -“A handsome, fortunate, brilliant, high-minded man was William Wirt,” -says Parton, “the toil of whose life it was to achieve those solid -attainments which alone make brilliancy of utterance endurable in a -court of justice.” Mr. MacRae, the third attorney for the government, -was then Lieutenant-Governor of Virginia, and while less able than -his two colleagues, was a lawyer of “respectable ability and a sharp -tongue.” - -On the side of the defense were the greatest lawyers of the time. -The best known of them was perhaps Edmund Randolph. Mr. Randolph had -been a delegate to the Continental Congress and to the Philadelphia -Constitutional Convention, Attorney-General and Governor of Virginia, -and Attorney-General and Secretary of State under Washington. He was -a man of great experience and learning. Associated with him from the -day of Burr’s arrival in Richmond was John Wickham, grandfather of -the late General W. C. Wickham and great-grandfather of Hon. Henry -T. Wickham, an eminent member of the present bar of Virginia. Mr. -Wickham was regarded by many as the ablest lawyer at the Virginia -bar. “The qualities,” says Mr. William Wirt in the _British Spy_, “by -which Mr. Wickham strikes the multitude are his ingenuity and his -wit. But those who look more closely into the anatomy of his mind, -disclose many properties of much higher dignity and importance. This -gentleman, in my opinion, unites in himself a greater diversity of -talents and acquirements than any other at the bar in Virginia.” -Another great lawyer of counsel for Burr, and probably the greatest -one of his day, was Luther Martin of Maryland. He and Burr had formed -a friendship about two years before in Washington, when Justice Chase -of the Supreme Court of the United States was impeached by the House -of Representatives and tried by the Senate for abuse of his office in -certain political trials. Burr was then Vice-President of the United -States, and presided over the Senate in that celebrated proceeding, -says a contemporary, “with the dignity and impartiality of an angel, -but with the rigor of a devil.” Martin was the leading counsel for -Justice Chase, and greatly distinguished himself. Conspicuous also -was Benjamin Botts, father of the distinguished John Minor Botts, who -although the youngest man on the side of the defense, had already -become eminent in his profession. - -The other counsel for Burr were Charles Lee, an Ex-Attorney-General -of the United States, and a lawyer of much learning; “Jack” Baker, -who was more of a “good fellow” than lawyer; and Washington Irving, -then attracting some attention in the field of letters, who to use his -own words, “went to Richmond on an informal retainer from one of the -friends of Col. Burr,” although, as he said, “his client had little -belief in his legal erudition, and did not look for any approach to a -professional debut, but thought he might in some way or other be of -service with his pen.” - -But of the defense _facile princeps_ was Burr himself. He was keenly -alive to every proceeding, and while the burden fell upon others, no -move was made, or point conceded, without his sanction. Mr. Robertson, -the reporter of the trial, says: “Among these stood Aaron Burr, proudly -pre-eminent in point of intelligence to his brethern of the bar, who -had been vice-president of the United States, and now accused of the -highest and darkest crime in the criminal code. Standing before the -Supreme tribunal of his country, and with the eyes of the nation -upon him, he was, in the opinion of many, already condemned. He had -the talent and tact, and the resources of the Government to contend -against, and every faculty of his mind was exerted in his own defense. -The magnitude of the charge, the number of persons involved, the former -high standing and extraordinary fortunes of the accused, had excited an -interest in the community such as never before had been known.” - -[Illustration: WARRANT FOR ARREST OF BURR - - _Facing p. 20_ -] - -The Marshal had summoned for service on the grand jury the most -intelligent and representative citizens of the Commonwealth. -Prominent among them was William B. Giles. He had served in both -branches of the Legislature of Virginia; had been Governor of the State -of Virginia; and representative and senator in the Congress of the -United States. Senator Giles was a partisan of Jefferson, a member of -what John Randolph called “the President’s back-stair cabinet.” He was -the leader of the republicans in the Senate, and had been foremost in -the assaults on the “last stronghold of Federalism--the Judiciary.” - -When Senator Giles was called on the _voir dire_ he was challenged -personally by Burr. Burr claimed the same right of challenging grand -jurors for favor that he had of challenging petit jurors, and was -sustained in his position by the Chief Justice. His objection to Giles -was that, on occasions in the Senate, he had pronounced his opinion on -certain documents sent to that body by President Jefferson attributing -to Burr treasonable designs, and upon such information advocating the -suspension of the writ of _habeas corpus_. He stated that he could -produce evidence, if necessary, of public utterances of Senator Giles -confirming these views. Senator Giles was stricken from the panel. - -Another former United States Senator, and afterwards Governor of -Virginia, summoned as a grand juror, was Wilson Cary Nicholas. He was -a personal enemy of Burr, and when his name was called Burr challenged -him. Colonel Nicholas had served three years in the Senate when Burr -presided over it, and had taken a very decided part in favor of the -election of his successor. He had freely expressed his suspicions, both -in correspondence and publicly, of Colonel Burr’s probable objects in -the west. He was rejected. - -Some of the other distinguished citizens of Virginia summoned by the -Marshal, and who served on the grand jury, were Littleton Waller -Tazewell and James Pleasants, both afterwards United States Senators -and Governors of Virginia; Joseph C. Cabell, one of the founders with -Jefferson of the University of Virginia; William Daniel, father of -the late Judge William Daniel of the Court of Appeals of Virginia, -and grandfather of John Warwick Daniel, the lamented senator from -Virginia; and Colonel James Barbour, afterwards Governor of Virginia, -United States Senator, Secretary of War under John Quincy Adams, and -Minister to England. - -The general belief in the guilt of the accused was manifested at -the very beginning of the trial. The proclamations and the special -messages of President Jefferson to Congress, and the depositions -of Generals Eaton and Wilkinson had had their effect on the public -mind. A number of citizens summoned for service on the grand jury -frankly admitted they had prejudged the case, and in consequence of -such disqualifications and excuses the original panel was reduced to -fourteen. - -The court, being now without a legal grand jury in attendance, directed -the Marshal to summon from the bystanders two additional persons. -The Marshal summoned and returned John Randolph and William Foushee. -Mr. Randolph was named as foreman, but upon being asked to take the -oath, requested to be excused from serving. He had formed an opinion -concerning the nature and tendency of certain transactions imputed to -Mr. Burr. He had a strong prepossession, but thought he could divest -himself of it upon evidence. Mr. Burr observed that he was afraid they -would be unable to find any man without this prepossession. “The rule -is,” said the Chief Justice, “that a man must not only have formed, but -declared an opinion, in order to exclude him from serving on the jury.” -Mr. Randolph replied that he had no recollection of having declared -one, and he was thereupon sworn as foreman. - -Dr. Foushee when called to be sworn was found to be disqualified, and -was permitted to withdraw. Colonel James Barbour was called in his -stead and accepted. - -The selection of the grand jury having been completed, the grand jury -was duly sworn by the clerk. It was composed of the following citizens: - -John Randolph, Foreman, Joseph Eggleston, Joseph C. Cabell, Littleton -W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, -William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford -Beverly, John Ambler, Thomas Harrison, Alexander Shephard and James -Barbour. - -The Chief Justice promptly delivered an appropriate charge to the -grand jury. He dwelt more particularly upon the definition and nature -of treason, and the testimony requisite to prove it. He said in part: -“To you by the Constitution and laws of our country is confided the -important right of accusing those whose offenses shall have rendered -them subject to punishment under the laws of the United States. It -is on you that the fundamental principles on which the stability of -our political institutions and the safety of individuals most greatly -depend. For to little purpose would laws be formed to protect the -innocent of the body politic from crimes of the worst nature if a -misplaced nonentity should control the execution of them. Juries, -gentlemen, as well as judges, should be superior to every temptation, -which hope, fear or compassion, may suggest; who will allow no -influence to balance their love of justice; who will follow no guide -but the laws of their country. - -“In outlining to you, gentlemen of the jury, those offenses which are -cognizable in the court, and which may scarcely be noticed by you, -the first on the calendar, as well as the highest known atrocity, -is treason against the United States. With a jealousy peculiar to -themselves the American people have withdrawn the subject from the -power of their legislature, and have declared in their Constitution -that ‘treason against the United States shall consist only in levying -war against them, or in adhering to their enemies, giving them aid and -comfort.’” - -After the grand jury had retired Colonel Burr addressed the court -on the propriety of specially instructing them in regard to the -admissibility of certain evidence, which he stated would be laid before -the grand jury by the attorney for the United States. Mr. Hay opposed -this application. He said he could never agree to it, and he trusted -the court also would never sanction such a suggestion; that Colonel -Burr stood before the court on the same footing as any other citizen, -and he hoped the court would not distinguish between his case and that -of any other. The question was postponed for further discussion. The -court then adjourned to the following morning. - -The court met the next day and the grand jury also appeared. It became -apparent that nothing effectual could be done until the arrival of -General Wilkinson, the most important witness for the Government. The -grand jury were therefore adjourned from day to day until he put in his -appearance. - -Meanwhile Mr. Hay had moved to commit Burr on a charge of high treason -against the United States. On his preliminary examination he was bailed -on the charge of misdemeanor, but said Mr. Hay “there was no evidence -of an overt act. The evidence is different now.” - -This motion was discussed at length throughout the day, and provoked -one of the most eloquent debates of the whole trial and revealed the -political passions of the day. Mr. Botts “begged leave to make a few -remarks on this extraordinary application, and the pernicious effects -such an extraordinary measure, if generally practised, would inevitably -produce. The organ particularly appropriated for the consideration -of the evidence which the motion calls for, is the grand jury; and -the motion is to divest the grand jury of the office, which the -Constitution and laws have appropriated to them, and to devolve it -upon the court. The grand juror’s oath is to inquire into all crimes -and misdemeanors committed within the district of the State of which -they are freeholders. Their office is to perform that which the court -is now called upon to perform. To them belongs the exclusive duty of -inquiring and examining into all species of evidence, which may lead -to a conviction of the crimes of which Colonel Burr is now charged; -but there is a great objection to the exercise of this examining and -committing power by a high law officer, who is to preside upon the -trial, when the grand jury, the appropriate tribunal, is in session.” - -After Mr. Botts had taken his seat, Mr. Hay in response to an inquiry -by the Chief Justice, as to whether the counsel for the prosecution -intended to open the case more fully, stated, “that he had not intended -to open it more fully; he did not himself entertain the least doubt, -that if there was sufficient proof produced to justify the commitment -of Colonel Burr, the court had completely the right to commit him.” - -Mr. Wickham complained because the gentlemen on the other side had -not given them notice of their intended motion. “We come into this -discussion completely off our guard, completely unprepared.” “The fact -is this,” replied Mr. Hay, “Mr. Wilkinson is known to be a material -witness in this prosecution; his arrival in Virginia, might be -announced in this city, before he himself reached it. I do not intend -to say what effect it might produce upon Colonel Burr’s mind; but -certainly Colonel Burr would be able to effect his escape, merely upon -paying the recognizance of his present bail. My only object then was -to keep his person safe, until we could have investigated the charge -of treason; and I really did not know but that if Colonel Burr had -been previously apprised of my motion he might have attempted to avoid -it. But I did not promise to make the communication to the opposite -counsel, because it might have defeated the very end for which it was -intended.” - -Mr. Wickham observed, “that the present motion was unprecedented in -a system of criminal jurisprudence, which was upwards of one hundred -years old.” Continuing, Mr. Wickham said: “What, sir, is the tendency -of this application? What is the motion? I have no doubt, the gentlemen -mean to act correctly--I wish to cast no imputation; but the counsel -and the court well know that there are a set of busy people (not I hope -employed by the Government) who, thinking to do right, are laboring to -ruin the reputation of my client. I do not charge the Government with -this attempt; but the thing is actually done. Attempts have been made. -The press from one end of the continent to the other, has been enlisted -on their side to excite prejudice against Colonel Burr. Prejudice? Yes, -they have influenced the public opinion by such representations, and by -persons not passing between the prisoner and his country, but by _ex -parte_ evidence and mutilated statements. Ought not this court to bar -the door as much as possible, against such misrepresentation? to shut -out every effort to excite further prejudice, until the case is decided -by a sworn jury? Not by the floating rumors of the day, but by the -evidence of sworn witnesses?” - -In reply to Mr. Botts and Mr. Wickham, Mr. Wirt for the first time -addressed the court: - -“Where is the crime,” said Mr. Wirt, “of considering Aaron Burr a -subject to the ordinary operation of the human passions? Towards any -other man, it seems, the attorney would have been justified in using -precautions against alarms and escapes; it is only improper when -applied to this man. Really, sir, I recollect nothing in the history -of his deportment which renders it so very incredible, that Aaron Burr -would fly from a prosecution. But at all events, the attorney is bound -to act on general principles, and to take care that justice be had -against every person accused, by whatever name he may be called, or -by whatever previous reputation he may be distinguished. This motion, -however, it seems, is not legal at this time, because there is a grand -jury in session. The amount of the position is, that though it may be -generally true, that the court possesses the power to hear and commit, -yet, if there be a grand jury, the power of the court is suspended; -and the commitment cannot be had unless in consequence of a presentment -or bill of indictment found by that body. The general power of the -court being admitted, those who rely on this exception, should support -it by authority; and, therefore, the _loud call_ for precedents, which -we have heard from the other side come improperly from that quarter. -We ground this motion in the general power of the court to commit: let -those who say that this general power is destroyed by the presence -of a grand jury show one precedent to countenance this original and -extraordinary motion. I believe, sir, I may safely affirm, that not a -single reported case or dictum can be found, which has the most distant -bearing towards such an idea. Sir, no such dictum or case ought to -exist. It would be unreasonable and destructive of the principles of -justice. - -“But, sir, we are told, that the investigation is calculated to -keep alive the public prejudice; and we hear great complaints about -these public prejudices. The country is represented as being filled -with misrepresentations and calumnies against Aaron Burr; the public -indignation, it is said, is already sufficiently excited. This -argument is also inapplicable to our right to make this motion; it -does not affect the legality of our procedure. Sir, if Aaron Burr be -innocent instead of resisting this motion, he ought to hail it with -triumph and exultation. What is it that we propose to introduce? Not -the rumors that are floating through the world, nor the _bulk_ of -the multitude, nor the speculations of newspapers, but the _evidence -of facts_. We propose, that the whole evidence exculpatory as well -as accusative, shall come before you; instead of exciting, this is -the true mode of correcting, prejudices. The world, which it is -said has been misled and influenced by falsehood, will now hear the -truth. Let the truth come out, let us know how much of what we have -heard is false, how much of it is true; how much of what we feel is -prejudice, how much of it is justified by fact. Whoever before heard -of such an apprehension as that which is professed on the other side? -_Prejudice excited by evidence!_ Evidence, sir, is the great corrector -of prejudice. Why then does Aaron Burr shrink from it? It is strange -to me that a man, who complains so much of being, without cause, -illegally seized and transported by a military officer, should be -afraid to confront the evidence; evidence can be promotive only of -truth. I repeat it then, sir, why does he shrink from the evidence? The -gentlemen on the other side can give the answer. On our part we are -ready to produce that evidence. - -“The gentleman assures us, that no imputation is meant against the -Government. Oh no, sir; Colonel Burr indeed has been oppressed, has -been persecuted; but far be it from the gentleman to charge the -Government with it. Colonel Burr indeed has been harassed by a military -tyrant, who is ‘the instrument of the Government bound to blind -obedience’; but the gentleman could not by any means be understood -as intending to insinuate aught to the prejudice of the Government. -The gentleman is understood, sir; his object is correctly understood. -He would divert the public attention from Aaron Burr and point it -to another quarter. He would, too, if he could, shift the popular -displeasure, which he has spoken of, from Aaron Burr to another -quarter. These remarks were not intended for your ear, sir; they were -intended for the people who surround us; they can have no effect upon -the mind of the court. I am too well acquainted with the dignity, -the firmness, the illumination of this bench, to apprehend any such -consequence. But the gentlemen would balance the account of popular -prejudices; they would convert the judicial inquiry into a political -question; they would make it a question between Thomas Jefferson and -Aaron Burr. The purpose is well understood, sir; but it shall not -be served. I will not degrade the administration of this country by -entering on their defence. Besides, sir, this is not our business; at -present we have an account to settle, not between Aaron Burr and Thomas -Jefferson, but between Aaron Burr and the laws of his country. Let us -finish his trial first. The administration, too, will be tried before -their country; before the world. They, sir, I believe, will never -shrink, either from the evidence or the verdict.” - -Mr. Hay then delivered an elaborate argument in support of his motion -and was followed by Mr. Randolph. Colonel Burr concluded the debate in -a ten minutes’ speech. - -“The case is this,” says Colonel Burr: “No man denies the authority of -the court, to commit for a crime; but no commitment ought to be made, -except on probable cause. This authority is necessary; because policy -requires, that there should be some power to bind an accused individual -for his personal appearance, until there shall have been sufficient -time to obtain witnesses for his trial; but this power ought to be -controlled as much as possible. - -“The question in the present case, is whether there is probable cause -of guilt; and whether time ought to be allowed to collect testimony -against me. This time ought generally to be limited; but there is no -precise standard on the subject; and much is of course left to the -sound discretion of the court. Two months ago, however, you declared -that there had been time enough to collect the evidence necessary to -commit, on probable cause; and surely, if this argument was good then, -it is still better now. - -“As soon as a prosecutor has notice of a crime, he generally looks out -for witnesses. It is his object to obtain probable cause for committing -the accused. Five months ago, a high authority declared that there was -a crime; that I was at the head of it; and it mentioned the very place, -too, where the crime was in a state of preparation. The principal -witness against me, is said to be Mr. Wilkinson. Now, from what period -is the time to be computed? If, from the time I was suspected, five -months; if, from the time when I was seized, three months; or is it -to be only computed from the time when I was committed? So that it is -near forty days since the notice must have arrived at New Orleans. But -a vessel navigates the coast, from New Orleans to Norfolk, in three -weeks. I contend, however, that witnesses ought to be produced, from -the very time when the crimes are said to be committed. There is, then, -no apology for the delay of the prosecution, as far as it respects the -only person for whom an apology is attempted to be made. - -“There are other serious objections to my situation. Must I be ready -to proceed to trial? True, sir, but then it must be in their own way. -Are we then on equal terms here? Certainly not. And again, as to -affidavits. The United States can have compulsory process to obtain -them; but I have no such advantage. An _ex parte_ evidence, then, is -brought before this court, on a motion for commitment. The evidence on -one side only is exhibited; but if I had mine also to adduce, it would -probably contradict and counteract the evidence for the United States. -Well, sir, and these affidavits are put into the newspapers, and they -fall into the hands of the grand jury. I have no such means as these, -sir; and where then is the equality between the Government and myself. - -“The opinion of the court, too, is to be committed against me. Is this -no evil? - -“A sufficient answer, sir, has been given to the argument about my -delay; and its disadvantages to myself have been ably developed. But -my counsel have been charged with declamation against the Government -of the United States. I certainly, sir, shall not be charged with -declamation; but surely it is an established principle, sir, that no -government is so high as to be beyond the reach of criticism; and it -is more particularly laid down, that this vigilance is more peculiarly -necessary, when any government institutes a prosecution: and one reason -is, on account of the vast disproportion of means which exists between -it and the accused. But, if ever there was a case which justified this -vigilance, it is certainly the present one, when the Government has -displayed such uncommon activity. If, then, this Government has been so -peculiarly active against me, it is not improper to make the assertion -here, for the purpose of increasing the circumspection of the court.” - -Mr. Burr observed, that he meant by persecution, the harassing of -any individual, contrary to the forms of law; and that his case, -unfortunately, presented too many instances of this description. He -would merely state a few of them. He said that his friends had been -everywhere seized by the military authority; a practice truly consonant -with European despotisms. He said that persons had been dragged by -compulsory process before particular tribunals, and compelled to give -testimony against him. His papers, too, had been seized. “And yet, -in England,” said he, “where we say they know nothing of liberty, -a gentleman, who had been seized and detained two hours, in a back -parlour, had obtained damages to the amount of one thousand guineas.” -He said that an order had been issued to kill him, as he was descending -the Mississippi, and seize his property. And yet, they could only have -killed his person, even if he had been formally condemned for treason. -He said that even post-offices had been broken open, and robbed of his -papers; that, in the Mississippi Territory, even an indictment was -about to be laid against the postmaster; that he had always taken this -for a felony; but that nothing seemed too extravagant to be forgiven -by the amiable morality of this Government. “All this,” said Mr. Burr, -“may only prove that my case is a solitary exception from the general -rule. The Government may be tender, mild and humane to everybody but -me. If so, to be sure it is of little consequence to anybody but -myself. But surely I may be excused if I complain a little of such -proceedings.” - -[Illustration: AFFIDAVIT OF BURR FOR SUBPŒNA _DUCES TECUM_ FOR -PRESIDENT JEFFERSON - - _Facing p. 40_ -] - -“Our President,” said Mr. Burr, “is a lawyer and a great one too. He -certainly ought to know what it is that constitutes a war. Six months -ago, he proclaimed that there was a civil war. And yet, for six months -have they been hunting for it, and still cannot find one spot where it -existed. There was, to be sure, a most terrible war in the newspapers; -but nowhere else.” - -The next day the court in a written opinion held that the motion was -a proper one at this stage of the proceedings, and the attorney for -the United States was permitted to open his testimony; but in doing -so, the Chief Justice expressed his regrets that the result of the -motion “may be publications unfavorable to the justice and to the right -decision of the case.” Counsel were impressed with this observation -of the court, and an attempt was made to reach an agreement whereby -a public disclosure of the evidence at this time might be avoided. -It was proposed by counsel for the United States that Colonel Burr’s -recognizance be made sufficiently large to insure his appearance to -answer the charge of high treason against the United States, but on -the following day this proposition was rejected by Colonel Burr. Mr. -Hay then proceeded with some reluctance to the examination of witnesses -in support of his motion to commit Burr, as “he felt the full force of -the objections to a disclosure of the evidence, and the necessity of -the court declaring its opinion before the case was laid before the -jury.” - -The attorney for the United States first sought to read the deposition -of General Wilkinson, which precipitated the question of the order in -which the testimony was to be introduced and its admissibility. The -Supreme Court had already decided in the case of Swartout and Bollman -that the deposition of Wilkinson might be admitted in evidence under -certain circumstances, but that it did not contain any proof of an -overt act. The Chief Justice observed that no evidence certainly had -any bearing upon the present case unless the overt act be proved, but -he would permit the attorney for the United States to pursue his own -course as to the order of introducing his testimony. - -A lengthy argument here ensued, in which Mr. Botts took a conspicuous -part. In a most lucid manner he defined the crime of high treason under -the Constitution of the United States, and applied it to the issue -before the court. - -“First,” he said, “it must be proved that there was an actual war. A -war consists wholly in acts, and not in intentions. The acts must be in -themselves acts of war; and if they be not so intrinsically, words or -intentions cannot make them so. In England, when conspiring the death -of the King was treason, the _quo animo_ formed the essence of the -offence; but, in America, the national convention has confined treason -to the act. We cannot have a constructive war within the meaning of the -Constitution. An intention to levy war, is not evidence that a war was -levied. Intentions are always mutable and variable; the continuance -of guilty intentions is not to be presumed. Secondly, the war must -not only have been levied, but Colonel Burr must be proved to have -committed an overt act of treason in that war. A treasonable intention -to coöperate is no evidence of an actual coöperation. The acts of -others, even if in pursuance of his plan, would be no evidence against -him. It might not be necessary that he should be present, perhaps; -but he must be, at the time of levying the war, coöperating by acts, -or, in the language of the Constitution, be committing overt acts. -Thirdly, the overt act by the accused, as an actual war, must not only -be proved, but it must be proved to have been committed within this -district. Fourthly, the overt act must be proved by two witnesses.” - -The Chief Justice declared this view of the law to be correct, and -General Wilkinson’s deposition was accordingly put aside. - -Mr. Hay realized the utter futility of his efforts to commit Burr on -the charge of treason at this stage of the case, and readily consented -to Burr’s proposition to double the amount of his bond to answer the -charge of a misdemeanor. Luther Martin, who appeared for the first -time, became one of his sureties. He declared in open court that he -was happy to have this opportunity to give a public proof of his -confidence in the honor of Colonel Burr, and of his belief in his -innocence. - -General Wilkinson had not as yet put in his appearance, and much -impatience was manifested because of the inconvenience he had caused. -The grand jury were therefore adjourned from day to day until the -second day of June, when they were adjourned until the 9th, on which -last named day he was expected to arrive. - -The court met accordingly on the 9th, and after the names of the grand -jury had been called and explanations offered as to the continued -absence of General Wilkinson, Colonel Burr moved the court to issue -a subpœna _duces tecum_ addressed to the President of the United -States, requiring him to produce certain papers, and on the following -day he presented to the court an affidavit, drawn up and sworn to by -himself in open court in support of his motion. In this affidavit he -sets forth that he has great reason to believe, that a letter from -General Wilkinson to the President of the United States, dated October -21st, 1806, as mentioned in the President’s message of the 22nd -January, 1807, to both Houses of Congress, together with the documents -accompanying the said letter, and copy of the answer of said Thomas -Jefferson, or of anyone by his authority, to the said letter, may be -material in his defence in the prosecution against him. And further -that he has reason to believe, the military and naval orders given by -the president of the United States, through the departments of war -and of the navy, to the officers of the army and navy, at or near -New Orleans stations, touching or concerning the said Burr, or his -property, will also be material in his defense; and that he had made a -personal request for copies of these papers during a recent visit to -Washington, and had been refused. - -Mr. Martin in support of the propriety of granting this particular -subpœna laid down as a general principle, in all civil or criminal -cases, that every man had a right by process to establish his rights -or his innocence. He asserted that one of the papers necessary to the -defense is the original letter from General Wilkinson described in -Burr’s affidavit. The other papers are copies of official orders by -the navy and war departments. He had supposed that every citizen was -entitled to such copies of official papers as are material to him, and -he had never heard of but one instance where they were refused, and -this was under presidential influence. - -“We intend to show,” says Mr. Martin, “that, by this particular order, -his property and his person were to be destroyed; yes, by these -tyrannical orders, the life and property of an innocent man were to be -exposed to destruction. We did not expect these originals themselves. -But we did apply for copies; and were refused under presidential -influence. In New York, in the farcical trials of Ogden and Smith, the -officers of the Government screened themselves from attending, under -the sanction of the President’s name. Perhaps the same farce may be -repeated here; and it is for this reason that we applied directly to -the President of the United States. Whether it would have been best -to have applied to the Secretaries of State, of the Navy and War, I -cannot say. All that we want is the copies of some papers, and the -original of another. This is a peculiar case, sir. The President has -undertaken to prejudge this trial by declaring, that, ‘of his guilt -there can be no doubt.’ He has assumed to himself the knowledge of -the Supreme Being himself, and pretended to search the heart of my -highly respected friend. He has proclaimed him a traitor in the face -of that country, which has rewarded him. He has let slip the dogs -of war, the hell-hounds of persecution, to hunt down my friend. And -would this President of the United States, who has raised all of this -absurd clamor, pretend to keep back the papers which are wanted for -this trial, where life is at stake? It is a sacred principle, that in -all such cases, the accused has a right to all the evidence which is -necessary to his defense. And whoever withholds, wilfully, information -that would save the life of a person, charged with a capital offence, -is substantially a murderer, and so recorded in the registry of Heaven.” - -[Illustration: SUBPŒNA _DUCES TECUM_ FOR PRESIDENT JEFFERSON] - -[Illustration: SUBPŒNA _DUCES TECUM_ FOR PRESIDENT JEFFERSON (Continued) - - _Facing p. 50_ -] - -Mr. Wirt replied to Mr. Martin, and in the course of his argument, made -the following reference to Martin’s arraignment of Jefferson and the -administration: - -“I cannot take my seat, sir, without expressing my deep and sincere -sorrow at the policy which the gentlemen in the defense have thought -it necessary to adopt. As to Mr. Martin, I should have been willing -to impute this fervid language to the sympathies and resentments of -that friendship which he has taken such frequent occasions to express -for the prisoner, his honourable friend. In the cause of friendship I -can pardon zeal even up to the point of intemperance; but the truth -is, sir, that before Mr. Martin came to Richmond, this policy was -settled, and on every question incidentally brought before the court, -we were stunned with invectives against the administration. I appeal -to your recollection, sir, whether this policy was not manifested even -so early as in those new and until now unheard of challenges to the -grand jury for favour? Whether that policy was not followed up with -increased spirit, in the very first speeches which were made in this -case; those of Mr. Botts and Mr. Wickham on their previous question -pending the attorney’s motion to commit? Whether they have not seized -with avidity every subsequent occasion, and on every mere question of -abstract law before the court, flew off at a tangent from the subject, -to launch into declamations against the government? Exhibiting the -prisoner continually as a persecuted patriot; a Russell or a Sidney, -bleeding under the scourge of a despot, and dying for virtue’s sake! -If there be any truth in the charges against him, how different were -the purposes of his soul from those of a Russell or a Sidney! I beg to -know what gentlemen can intend, expect, or hope, from these perpetual -philippics against the Government? Do they flatter themselves that this -court feel political prejudices which will supply the place of argument -and innocence on the part of the prisoner? Their conduct amounts to an -insinuation of the sort. But I do not believe it. On the contrary, I -feel the firm and pleasing assurance, that as to the court, the beam -of their judgment will remain steady, although the earth itself should -shake under the concussion of prejudice. Or is it on the bystanders -that the gentlemen expect to make a favourable impression? And do they -use the court merely as a canal, through which they may pour upon the -world their undeserved invectives against the Government? Do -they wish to divide the popular resentment and diminish thereby their -own quota? Before the gentlemen arraign the administration, let them -clear the skirts of their client. Let them prove his innocence; let -them prove that he has not covered himself with the clouds of mystery -and just suspicion; let them prove that he has been all along erect -and fair, in open day, and that these charges against him are totally -groundless and false. That will be the most eloquent invective which -they can pronounce against the prosecution; but until they prove this -innocence, it shall be in vain that they attempt to divert our minds -to other objects, and other inquiries. We will keep our eyes on Aaron -Burr until he satisfies our utmost scruple. I beg to know, sir, if the -course which gentlemen pursue is not disrespectful to the court itself? -Suppose there are any foreigners here accustomed to regular government -in their own country, what can they infer from hearing the federal -administration thus reviled to the federal judiciary? Hearing the -judiciary told, that the administration are ‘Bloodhounds, hunting this -man with a keen and savage thirst for blood; that they now suppose -they have hunted him into their toils and have him safe.’ Sir, no man, -foreigner or citizen, who hears this language addressed to the court, -and received with all the complacency at least which silence can imply, -can make any inferences from it very honourable to the court. It would -only be inferred, while they are thus suffered to roll and luxuriate -in these gross invectives against the administration, that they are -furnishing the joys of a Mahometan paradise to the court as well as to -their client. I hope that the court, for their own sakes, will compel -a decent respect to that government of which they themselves form a -branch. On our part, we wish only a fair trial of this case. If the man -be innocent, in the name of God let him go; but while we are on the -question of his guilt or innocence, let us not suffer our attention and -judgment to be diverted and distracted by the introduction of other -subjects foreign to the inquiry.” - -The counsel for the prosecution admitted that the President of the -United States was amenable to an ordinary subpœna _ad testificandum_ -as any other citizen, but that the application for a subpœna _duces -tecum_ was addressed to the discretion of the court, and did not issue -as a process of right. Besides, the papers required to be produced -by such a process must be shown to be material for the defense. They -questioned the propriety of compelling the chief magistrate to produce -in court any papers in his possession not public in its character. -They further contended that until the grand jury had found a true bill -and the prosecutor had announced his intention to proceed to a trial -thereon the prisoner had no right to legal process. - -After five days of debate the Chief Justice delivered an elaborate -opinion on the motion of Colonel Burr. He decided that the subpœna -_duces tecum_ directed to the president of the United States might -issue. He held that any person charged with a crime in the courts of -the United States has a right, before, as well as after indictment, to -the process of the court to compel the attendance of his witnesses; -that in the provisions of the Constitution, and of the statutes which -give to the accused a right to the compulsory process of the court, -there is no exception whatever. - -“If, upon any principle,” said the Chief Justice, “the President -could be construed to stand exempt from the general provisions of the -Constitution, it would be because his duties, as chief magistrate, -demand his whole time for national objects. But it is apparent that -this demand is not unremitting; and, if it should exist at the time -when his attendance on a court, is required, it would be sworn on -the return of the subpœna, and would rather constitute a reason for -not obeying the process of the court, than a reason against it being -issued. The guard furnished to this high office to protect him from -being harassed by vexatious and unnecessary subpœnas, is to be looked -for in the conduct of a court after those subpœnas have issued; not in -any circumstance which is to precede their being issued. If, in being -summoned to give his personal attendance to testify, the law does -not discriminate between the President and a private citizen, what -foundation is there for the opinion, that this difference is created -by the circumstance, that his testimony depends on a paper in his -possession, not on facts, which come to his knowledge otherwise than -by writing? The court can perceive no foundation for such an opinion. -The propriety of introducing any paper into a case, as testimony, must -depend on the character of the paper, not on the character of the -person who holds it. A subpœna _duces tecum_, then, may issue to any -person to whom any ordinary subpœna may issue, directing him to bring -any paper of which the party praying it has a right to avail himself as -testimony; if, indeed, that be the necessary process for obtaining the -view of such paper.” - -The decision of the Chief Justice and the strictures of Martin threw -Jefferson into a violent rage. We find him promptly writing to Mr. Hay, -“Shall we move to commit Luther Martin as _particeps criminis_ with -Burr? Grayball will fix upon him misprision of treason at least, and, -at any rate, his evidence will pull down this unprincipled and impudent -Federal bull-dog, and add another proof that the most clamorous -defenders of Burr are all his accomplices.” And again he writes to -Hay, after discussing at length the intimation in the decision of the -Chief Justice that even the bodily presence of the President might -be compelled by the court, which proposition he indignantly denied, -“that the leading feature of our Constitution is the independence of -the legislative, executive and judiciary of each other; and none are -more jealous of this than the judiciary. But would the executive be -independent of the judiciary if he were subject to the commands of the -latter, and to imprisonment for disobedience, if the smaller courts -could bandy him from pillar to post, keep him constantly trudging from -North to South and East and West and withdraw him entirely from his -executive duties?” - -The law and reasoning of the decision of the Chief Justice were -convincing. Jefferson knew that under the Constitution the President -had no superior right to those of any other citizen, and, while -directing substantially all papers required by the subpœna _duces -tecum_ to be furnished, he refused to appear in person in court. He -openly defied the process of the court. He intimated that if the court -attempted to enforce its writ he would meet force with force. The -Chief Justice realized what this meant, and the matter was quietly -dropped. - -On Saturday, June 13th, twenty-two days after the court had convened, -General Wilkinson arrived in the city of Richmond, and on the following -Monday he was sworn and sent to the grand jury, with a notification -that it would facilitate their inquiries if they would examine him -immediately. - -Wilkinson was at the head of the army and Governor of the territory -of Louisiana, to which latter office he had been appointed about the -close of the session of Congress that Burr as Vice-President presided -over the Senate. Between him and Burr a long friendship had existed. -They had been fellow soldiers in the War of the Revolution--had shared -together the hardships of the winter of 1775-6, and the perils of the -unsuccessful attack on the city of Quebec. While it was true they had -seen very little of each other since the war they had at intervals, -and only a short time before the arrest of Burr, corresponded -confidentially and in cipher. He was undoubtedly in the secrets of -Burr, until he saw the impending explosion, and then he became active -in exposing the plot and bringing Burr to trial. Certain it is that -Burr regarded him as an associate and denounced his treachery. - -The meeting between Burr and his former friend Wilkinson was dramatic, -and is graphically described by Washington Irving. - -“Burr,” says Irving, “was seated with his back to the entrance, facing -the judges, and conversing with one of his counsel when Wilkinson -strutted into the court and took a stand in a parallel line with Burr -on his right hand. Here he stood for a moment swelling like a turkey -cock, and bracing himself up for the encounter of Burr’s eyes. The -latter did not take any notice of him until the Judge directed the -clerk to swear General Wilkinson; at the mention of the name Burr -turned his head, looked him full in the face with one of his piercing -regards, swept his eye over his whole person from head to foot, as if -to scan its dimensions and then cooly resumed his former position, and -went on conversing with his counsel as tranquilly as ever. The whole -look was over in an instant, but it was an admirable one. There was no -appearance of study or constraint in it; no affectation of disdain or -defiance; a slight expression of contempt played over his countenance, -such as you would show on regarding any person to whom you were -indifferent, but whom you considered mean and contemptible.” - -The examination of witnesses by the grand jury continued from day to -day until June 24th, when in the midst of an argument by Mr. Botts for -an attachment against General Wilkinson for endeavoring to prevent the -free course of testimony, the grand jury entered the courtroom, and -speaking through its distinguished foreman, stated that they had agreed -upon several indictments, which he handed to the clerk of the court. -The clerk then read the following endorsements thereon: - -“An indictment against Aaron Burr for treason--a true bill.” - -“An indictment against Aaron Burr for a misdemeanor--a true bill.” - -“An indictment against Herman Blannerhassett for treason--a true bill.” - -“An indictment against Herman Blannerhassett for a misdemeanor--a true -bill.” - -The grand jury then adjourned until the next day, and at the conclusion -of Mr. Bott’s argument on the motion for attachment, Colonel Burr with -his wonted serene and placid air arose and stated to the court, that -as true bills had been found against him, it was probable, the United -States Attorney would move for his commitment; he would, however, -suggest two ideas for the consideration of the court. “One was that it -was within their discretion to bail in certain cases, even when the -punishment was death; and the other was, that it was expedient for -the court to exercise their discretion in this instance, as he should -prove, that the indictment against him had been obtained by perjury.” - -Mr. Hay moved for his commitment. He stated that if the court had -the power to bail, it was only to be exercised according to their -sound discretion. After much time had been spent in debate, the Chief -Justice observed that “he was under the necessity of committing Colonel -Burr.” He was accordingly committed to the custody of the Marshal, and -conducted to the city jail, for the County of Henrico and the City of -Richmond; but two days later on the affidavit of his counsel, who had -visited him in his confinement, that the miserable state of the prison -would endanger his health, and that it was so arranged as to deprive -him of consultation with his counsel, and upon the further report of -the Surveyor of the Public Buildings of the United States, the court -entered the following order: - -“Whereupon, it is ordered, that the Marshal of this district, do cause -the front room of the house now occupied by Luther Martin, Esq., which -room has been and is used as a dining room, to be prepared for the -reception and safe-keeping of Colonel Aaron Burr, by securing the -shutters to the windows of the said room by bars, and the door by a -strong bar or pad-lock. And that he employ a guard of seven men to -be placed on the floor of the adjoining unfinished house, and on the -same story with the before described front room, and also, at the door -opening into the said front room; and upon the Marshal’s reporting to -the court that the said room has been so fitted up, and the guard -employed, that then the said Marshal be directed, and he is hereby -directed, to remove to the said room, the body of the said Aaron Burr -from the public gaol, there to be by him safely kept.” - -This building now known as Blair’s Drug Store, still stands at the -corner of Ninth and Broad Streets, in the City of Richmond, Virginia. - -The grand jury had on the day previous brought in indictments for -treason against Ex-Senator Jonathan Dayton of New Jersey, Ex-Senator -John Smith of Ohio, Comfort Tyler and Israel Smith of New York; -and Davis Floyd of the territory of Indiana. This completed their -inquiries, and after an appropriate address by the Chief Justice -in which he complimented them upon the great patience and cheerful -attention with which they had performed the arduous and laborious -duties in which they had been so long engaged, discharged them from -further attendance on the court. - -After some discussion as to procedure, the clerk of the court read the -indictment against Burr, for treason against the United States, which -with the endorsements thereon (exclusive of the verdict of the trial -jury), is as follows: - - “VIRGINIA DISTRICT: - - “IN THE CIRCUIT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR - THE FIFTH CIRCUIT AND VIRGINIA DISTRICT: - - “The grand inquest of the United States of America, for the - Virginia district, upon their oath do present that Aaron Burr, - late of the city of New York, and State of New York, Attorney - at Law, being an inhabitant of and residing within the United - States, and under the protection of the laws of the United - States, and owing allegiance and fidelity to the same United - States, not having the fear of God before his eyes, nor weighing - the duty of his said allegiance, but being moved and seduced by - the instigation of the devil, wickedly devising and intending - the peace and tranquillity of the said United States to disturb - and to stir, move and excite insurrection, rebellion and war - against the said United States, on the tenth day of December - in the year of Christ one thousand eight hundred and six at a - certain place called and known by the name of Blannerhassett’s - Island, in the county of Wood and District of Virginia aforesaid, - and within the jurisdiction of this Court, with force and arms - unlawfully, falsely, maliciously and traitorously did compass, - imagine and intend to raise and levy war, insurrection and - rebellion against the said United States; and in order to fulfil - and bring to effect the said traitorous compassings, imaginations - and intentions of him, the said Aaron Burr, he, the said Aaron - Burr, afterwards, to wit, on the said tenth day of December in - the year one thousand eight hundred and six aforesaid, at the - said island, called Blannerhassett’s Island as aforesaid, in the - County of Wood aforesaid in the District of Virginia aforesaid - and within the jurisdiction of this Court, with a great multitude - of persons whose names at present are unknown to the grand - inquest aforesaid, to a great number, to wit, to the number - of thirty persons and upwards, armed and arrayed in a warlike - manner, that is to say, with guns, swords, and dirks and other - warlike weapons as well offensive as defensive, being then and - there unlawfully, maliciously and traitorously assembled and - gathered together, did falsely and traitorously assemble and - join themselves together against the said United States, and - then and there with force and arms did falsely and traitorously, - and in warlike and hostile manner, array and dispose themselves - against the said United States, and then and there that is to - say on the day and in the year aforesaid at the island aforesaid - commonly called Blannerhassett’s Island in the County aforesaid - of Wood, within the Virginia district, and the jurisdiction of - this Court, in pursuance of such their traitorous intentions and - purposes, aforesaid, he the said Aaron Burr with the said persons - so as aforesaid traitorously assembled and armed and arrayed in - manner aforesaid, most wickedly, maliciously and traitorously - did ordain, prepare and levy war against the said United States, - contrary to the duty of their said allegiance and fidelity, - against the Constitution, peace and dignity of the said United - States, and against the form of the Act of Congress of the said - United States, in such case made and provided: - - “And the grand inquest of the United States of America for the - Virginia district upon their oaths aforesaid do further present, - that the said Aaron Burr, late of the City of New York, and State - of New York, attorney at law, being an inhabitant of and residing - within the United States and under the protection of the laws - of the United States, and owing allegiance and fidelity to the - same United States, not having the fear of God before his eyes, - nor weighing the duty of his said allegiance, but being moved - and seduced by the instigation of the devil, wickedly devising - and intending the peace and tranquillity of the United States to - disturb, and to stir, move, and excite insurrection, rebellion - and war against the said United States, on the eleventh day of - December in the year of our Lord one thousand eight hundred - and six, at a certain place, called and known by the name of - Blannerhassett’s Island in the County of Wood and District of - Virginia aforesaid and within the jurisdiction of this court, - with force and arms, unlawfully, falsely, maliciously and - traitorously did compass, imagine and intend to raise and levy - war, insurrection and rebellion against the said United States, - and in order to fulfil and bring to effect the said traitorous - compassings, imaginations and intentions of him the said Aaron - Burr, he, the said Aaron Burr, afterwards, to wit, on the said - last mentioned day of December in the year one thousand eight - hundred and six aforesaid, at a certain place commonly called and - known by the name of Blannerhassett’s Island in the said County - of Wood, in the District of Virginia aforesaid, and within the - jurisdiction of this court, with one other great multitude of - persons, whose names at present are unknown to the grand inquest - aforesaid, to a great number, to wit, to the number of thirty - persons and upwards, armed and arrayed in a warlike manner, that - is to say, with guns, swords and dirks, and other warlike weapons - as well offensive as defensive being then and there unlawfully, - maliciously and traitorously assembled and gathered together, did - falsely and traitorously assemble and join themselves together - against the said United States, and then and there with force and - arms did falsely and traitorously and in a warlike and hostile - manner, array and dispose themselves against the said United - States, and then and there, that is to say, on the day and in - the year last mentioned, at the island aforesaid in the County - of Wood aforesaid, in the Virginia district, and within the - jurisdiction of this Court, in pursuance of such their traitorous - intentions, and purposes aforesaid, he the said Aaron Burr with - the said persons so as aforesaid traitorously assembled and armed - and arrayed in manner aforesaid, most wickedly, maliciously and - traitorously did ordain, prepare and levy war against the said - United States, and further to fulfil and carry into effect the - said traitorous compassings, imaginations and intentions of the - said Aaron Burr against the said United States, and to carry on - the war thus levied as aforesaid against the said United States, - the said Aaron Burr with the multitude last mentioned at the - island aforesaid, in the said County of Wood, within the Virginia - district aforesaid and within the jurisdiction of this court, - did array themselves in a warlike manner, with guns and other - weapons offensive and defensive, and did proceed from the said - island down the river Ohio, in the County aforesaid within the - Virginia district, and within the jurisdiction of this Court, - on the said eleventh day of December in the year one thousand - eight hundred and six aforesaid, with the wicked and traitorous - intention to descend the said river and the river Mississippi - and by force and arms traitorously to take possession of a - City commonly called New Orleans in the territory of Orleans - belonging to the United States; contrary to the duty of their - said allegiance and fidelity, against the Constitution, peace and - dignity of the said United States and against the form of the - Act of the Congress of the United States in such case made and - provided. - - HAY. - - Attorney of the United States for the Virginia District. - - “Witness in behalf of the United States. - - 1. Thomas Truxton - 2. Stephen Decatur - 3. Benjamin Stoddert - 4. William Eaton - 5. William Duane - 6. Erick Bollman - 7. Peter Taylor - 8. Jacob Allbright - 9. Charles Willie - 10. John Graham - 11. Saml. Swartout - 12. Julien Dupeistre - 13. Prevost - 14. James Miller - 15. Saml. Kouten - 16. George Morgan - 17. John Morgan - 18. Thomas Morgan - 19. Nicholas Perkins - 20. Robert Spence - 21. George Harris - 22. Cyrus Jones - 23. Thomas Peterkin - 24. Elias Glover - 25. Simeon Poole - 26. Dudley Woodbridge - 27. David C. Wallace - 28. Edward W. Tupper - 29. Edmund B. Dana - 30. James Read - 31. John G. Henderson - 32. Alex. Henderson - 34. Ambrose Smith - 35. Hugh Phelps - 36. Gen. Wilkinson - 37. Dunbaugh - 38. Charles Lindsay - 39. John Manhatton - 40. James Knox - 41. William Love - 42. David Fisk - 43. Thomas Heartly - 44. Stephen S. Welch - 45. James Kenney - 46. Samuel Moxley - 47. Edw. P. Gaines - 48. A. D. Smith.” - - _ENDORSED_: - - “United States - vs. - Aaron Burr. - Indictment for Treason. - A true Bill. - John Randolph.” - -[Illustration: FINDINGS OF THE GRAND AND PETIT JURIES - - _Facing p. 70_ -] - -At the conclusion of the reading of the indictment, Mr. Burr addressed -the court as follows: - -“I acknowledge myself to be the person named in the indictment: I plead -_not guilty_; and put myself upon my country for trial.” - -The indictment, as will be observed, specifies the place of the overt -act to be at Blannerhassett Island, and the time the 10th day of -December, 1806. - -The court, when the plea was in, made an order for a venire of -forty-eight jurors, twelve of whom, at least, were to be summoned from -Wood County and on the following day, June 27th, the court ordered the -_venire facias_ to issue to the marshal, returnable on the 3rd day of -August and fixed that day for the trial. - -Three days later Burr was, on motion of the United States attorney, -removed from his lodging at the corner of Ninth and Broad Streets, and, -with the approval of the Governor of Virginia, placed in the third -story of the penitentiary, therein to be confined, until the 2nd day of -August. - -The court pursuant to adjournment met promptly at 12 o’clock, Monday, -August 3rd, in the House of Delegates, with Chief Justice Marshal -presiding. Judge Griffin, the District Judge, who had heretofore set in -the case, did not appear until the following Friday. - -George Hay, William Wirt and Alexander MacRae appeared as counsel for -the prosecution, and Edmund Randolph, John Wickham, Benjamin Botts, -John Baker and Luther Martin for the prisoner. Mr. Charles Lee appeared -about two weeks later. - -The court room was crowded with an immense throng of citizens, when -Burr, accompanied by his son-in-law, Governor Alston, of South -Carolina, and exhibiting his usual serenity and self-possession, -entered. The names of the jurors were promptly called, and shortly -thereafter the court adjourned until the following Wednesday, to give -counsel for the defense time to examine the list of the jurors summoned. - -The court met pursuant to adjournment, and for twelve days was engaged -in the selection of a jury for the trial of the case. Of the original -venire of forty-eight, only four, Richard E. Parker, David Lambert, -Hugh Mercer, and Edward Carrington were elected, and, of the second -venire for a like number, eight were accepted as competent jurors, -namely, Christopher Anthony, James Sheppard, Reuben Blakey, Miles -Bottes, Henry C. Coleman, Benjamin Graves, John M. Sheppard, and -Richard Curd. - -The jury now being elected and sworn, the prisoner was directed to -stand up. The clerk read the indictment for treason against him, and, -at the conclusion of the reading, addressed the jury in the usual form. -The case was then opened for the prosecution by Mr. Hay, it being -agreed that he should fully present the side of the government, and -immediately thereafter proceed with his evidence. - -Mr. Hay dwelt at great length on the crime of treason. - -“In Great Britain,” he said, “there are no less than ten different -species of treason; at least that was the number when Blakstone -wrote, and it is possible that the number may have been increased -since. But in this country, where the principle is established in the -Constitution, there are only two descriptions of treason; and the -number being fixed in the Constitution itself, can never be increased -by the legislature, however important and necessary it should be, -in their opinion, that the number should be augmented. By the third -section, article 3 of the Constitution of the United States, ‘treason -against the United States shall consist only in levying war against -them, or in adhering to their enemies; giving them aid and comfort.’ -With respect to the latter description, there is no occasion to say -anything, as the offense charged in the indictment is ‘levying war -against the United States’; but it adds that ‘_no person shall be -convicted of treason, unless on the testimony of two witnesses to the -same overt act, or on confession in open court_.’” - -The first witness called was General Eaton. Colonel Burr objected to -the order of the testimony. He said Mr. Hay had not stated the nature -of the witness’ testimony; but he presumed that it related to certain -conversations said to have happened at Washington. He contended that no -such evidence as that, which tended only to show intentions or designs, -was admissible until an _overt_ act of treason had been proved. This -question was ably argued by counsel on both sides. - -The next day the Chief Justice decided that so far as the testimony of -General Eaton “relates to the fact charged in the indictment, so far -as it relates to levying war on Blannerhassett’s Island, so far as it -relates to a design to seize on New Orleans, or to separate by force, -the Western from the Atlantic states, it is deemed relevant and is now -admissible: so far as it respects other plans to be executed in the -City of Washington, or elsewhere, if it indicate a treasonable design, -it is a design to commit a distinct act of treason, and is therefore -not relevant to the present indictment. It can only, by showing a -general evil intention, render it more probable that the intention in -the particular case was evil. It is merely additional or corroborative -testimony, and therefore, if admissible at any time, it is only -admissible according to the rules and principles which the court must -respect, after hearing that which it is to confirm.” - -General Eaton was then called to the stand and examined. He stated in -the beginning that he knew nothing of any overt act of treason on the -part of Burr, or of any of the happenings on Blannerhassett’s Island; -but that he knew much concerning Burr’s expressions of treasonable -intentions. - -The next witnesses called to prove treasonable designs were Commodore -Truxton, Peter Taylor, Blannerhassett’s gardener, and Colonel Morgan -and his two sons. - -The prosecution now took up the testimony to establish the _overt_ act -and called to the stand Jacob Allbright, Peter Taylor, William Love, -Maurice P. Belknap and Edmund B. Dana. These witnesses proved the -assemblage of men, some thirty or more, on Blannerhassett’s Island, -December 10th, 1806, armed with rifles and pistols, the pretended -purpose of which was to descend the Ohio River to the City of New -Orleans, and make it the base of operations in an expedition to Mexico; -but failed to prove the act of levying war. - -It was not proved that Burr was present on the Island when the -assemblage of the men took place. - -The only witness, who gave any direct testimony on the overt act -sought to be proved was Allbright, and he was discredited on -cross-examination. He testified on the night of the flight from the -Island that “a man by the name of Tupper (meaning General Tupper), laid -his hands upon Blannerhassett, and said: ‘Your body is in my hands, in -the name of the Commonwealth.’ Some such words as that he mentioned. -When Tupper made that motion, there were seven or eight muskets leveled -at him. Tupper looked about him and said ‘Gentlemen, I hope you will -not do the like.’ One of the gentlemen who was nearest about two yards -off said ‘I’d as leave as not.’ Tupper then changed his speech, and -said he wished him to escape safe down the river, and wished him luck.” - -At the conclusion of the evidence relating directly to the overt act -charged in the indictment, counsel for the prosecution attempted -to introduce collateral testimony of acts beyond the limits of the -jurisdiction of the court; but Colonel Burr and his counsel strenuously -objected to such testimony as wholly irrelevant and inadmissible, and -moved the court to arrest the evidence on the ground that the United -States had failed to prove an overt act, constituting treason, under -the Constitution of the United States. - -The argument on this motion, which was so vital to the further -prosecution of the case commenced on the 20th of August, and continued -until the 29th of that month, and was “doubtless,” says Parton, “the -finest display of legal knowledge and ability of which the history of -the American bar can boast.” - -Mr. Wickham opened the debate and was followed by Randolph, Wirt, -Botts, MacRae, Hay and Lee. Mr. Martin concluded. It fills one volume -of Mr. Robertson’s report of the case, and it would be vain to attempt -in this brief review to give anything like a satisfactory account of -it. Some of the reasons urged in support of the motion were: that Burr, -not being present on Blannerhassett’s Island, was merely an accessory, -and not a principal; that if he was a principal he was a principal -only in the second degree, where guilt is merely derivative, and that -therefore no parole evidence could be admitted against him, until a -record was produced of the conviction of the offenders in the first -degree; that the facts must be proved as laid in the indictment, and -evidence proving the accused to have been absent at the time of the -overt acts is inadmissible to support an indictment charging him with -the commission of that act; that no parole evidence could be given to -connect the prisoner with the men assembled on Blannerhassett’s Island, -until an act of treason on the part of these men was proved; and that -the assemblage there was not an act of treason; that until the fact of -a crime is proved no evidence should be heard respecting the guilty -intentions of the accused. - -On Monday, August 31st the Chief Justice rendered his decision. He read -it with great care and consumed three hours in doing so. - -“The question now to be decided,” he began, “has been argued in a -manner worthy of its importance, and with an earnestness evincing the -strong conviction felt by the counsel on each side that the law is with -them. - -“A degree of eloquence seldom displaced on any occasion has embellished -a solidity of argument, and a depth of research by which the court has -been greatly aided in forming the opinion it is about to deliver. - -“The testimony adduced on the part of the United States to prove the -overt act laid in the indictment having shown, and the attorney for -the United States having admitted, that the prisoner was not present -when that act, whatever may be its character, was committed, and there -being no reason to doubt but that he was at a great distance and in a -different state, it is objected to the testimony offered on the part of -the United States, to connect him with those who committed the overt -act, that such testimony is totally irrelevant and must therefore be -rejected. - -“The arguments in support of this motion respect in part the merits of -the case as it may be supposed to stand independent of the pleadings, -and in part as exhibited by the pleadings. - -“On the first division of the subject two points are made: - -“1st. That conformably to the constitution of the United States, no -man can be convicted of treason who was not present when the war was -levied. - -“2d. That if this construction be erroneous, no testimony can be -received to charge one man with the overt acts of others until those -overt acts, as laid in the indictment, be proved to the satisfaction of -the court. - -“The question which arises on the construction of the constitution, in -every point of view in which it can be contemplated, is of infinite -moment to the people of this country and to their government, and -requires the most temperate and the most deliberate consideration. - -“Treason against the United States shall consist only in levying war -against them.” - -The Chief Justice then proceeds to elaborately discuss an overt act -of levying war. The opinion delivered by the Supreme Court in the -case of Bollman and Swartout was declared by him to be not correctly -understood; and that there must be, before an overt act of treason -is completed, either the actual employment of force or a military -assemblage of men, who are in a posture of war. - -In conclusion the Chief Justice said: - -“The law of the case being thus far settled; what ought to be the -decision of the court on the present motion? Ought the court to sit and -hear testimony which cannot affect the prisoner? or ought the court to -arrest that testimony? On this question much has been said: much that -may perhaps be ascribed to a misconception of the point really under -consideration. The motion has been treated as a motion confessedly made -to stop relevant testimony; and, in the course of the argument, it has -been repeatedly stated, by those who oppose the motion, that irrelevant -testimony may and ought to be stopped. That this statement is perfectly -correct is one of those fundamental principles in judicial proceedings -which is acknowledged by all, and is founded in the absolute necessity -of the thing. No person will contend that, in a civil or criminal case, -either party is at liberty to introduce what testimony he pleases, -legal or illegal, and to consume the whole term in details of facts -unconnected with the particular case. Some tribunal then must decide -on the admissibility of testimony. The parties cannot constitute this -tribunal; for they do not agree. The jury cannot constitute it; for the -question is whether they shall hear the testimony or not. Who then but -the court can constitute it? It is of necessity the peculiar province -of the court to judge of the admissibility of testimony. If the court -admit improper or reject proper testimony, it is an error of judgment; -but it is an error committed in the direct exercise of their judicial -functions. - -“The present indictment charges the prisoner with levying war against -the United States, and alleges an overt act of levying war. That overt -act must be proved, according to the mandates of the constitution -and of the act of congress, by two witnesses. It is not proved by a -single witness. The presence of the accused has been stated to be an -essential component part of the overt act in this indictment, unless -the common law principle respecting accessories should render it -unnecessary; and there is not only no witness who has proved his actual -or legal presence, but the fact of his absence is not controverted. -The counsel for the prosecution offer to give in evidence subsequent -transactions at a different place and in a different state, in order to -prove--what? the overt act laid in the indictment? that the prisoner -was one of those who assembled at Blannerhassett’s Island? No: that -is not alleged. It is well known that such testimony is not competent -to establish such a fact. The constitution and law require that the -fact should be established by two witnesses; not by the establishment -of other facts from which the jury might reason to this fact. The -testimony then is not relevant. If it can be introduced, it is only -in the character of corroboratives or confirmatory testimony, after -the overt act has been proved by two witnesses in such manner that -the question of fact ought to be left with the jury. The conclusion, -that in this state of things no testimony can be admissible, is so -inevitable that the counsel for the United States could not resist it. -I do not understand them to deny, that, if the overt act be not proved -by two witnesses so as to be submitted to the jury, all other testimony -must be irrelevant; because no other testimony can prove the act. Now, -an assemblage on Blannerhassett’s Island is proved by the requisite -number of witnesses; and the court might submit it to the jury whether -that assemblage amounted to a levying of war; but the presence of -the accused at that assemblage being nowhere alleged except in the -indictment, the overt act is not proved by a single witness; and of -consequence all other testimony must be irrelevant. - -“The only difference between this motion as made, and the one in the -form which the counsel for the United States would admit to be regular, -is this: it is now general for the rejection of all testimony. It might -be particular with respect to each witness as adduced. But can this be -wished? or can it be deemed necessary? If enough be proved to show that -the indictment cannot be supported, and that no testimony, unless it be -of that description which the attorney for the United States declares -himself not to possess, can be relevant, why should a question be taken -on each witness? - -“Much has been said in the course of the argument on points on which -the court feels no inclination to comment particularly; but which may, -perhaps, not improperly, receive some notice. - -“That this court dares not usurp power is most true. - -“That this court dares not shrink from its duty is not less true. - -“No man is desirous of placing himself in a disagreeable situation. -No man is desirous of becoming the peculiar subject of calumny. No -man, might he let the bitter cup pass from him without self reproach, -would drain it to the bottom. But if he have no choice in the case, if -there be no alternative presented to him but a dereliction of duty or -the opprobrium of those who are denominated the world, he merits the -contempt as well as the indignation of his country who can hesitate -which to embrace. - -“That gentlemen, in a case the most interesting, in the zeal with -which they advocate particular opinions, and under the conviction, in -some measure produced by that zeal, should on each side press their -arguments too far, should be impatient at any deliberation in the -court, and should suspect or fear the operation of motives to which -alone they can ascribe that deliberation, is perhaps a frailty incident -to human nature; but if any conduct on the part of the court could -warrant a sentiment that it would deviate to the one side or the other -from the line prescribed by duty and by law, that conduct would be -viewed by the judges themselves with an eye of extreme severity, and -would long be recollected with deep and serious regret. - -“The arguments on both sides have been intently and deliberately -considered. Those which could not be noticed, since to notice every -argument and authority would swell this opinion to a volume, have not -been disregarded. The result of the whole is a conviction, as complete -as the mind of the court is capable of receiving on a complex subject, -that the motion must prevail. - -“No testimony relative to the conduct or declarations of the prisoner -elsewhere and subsequent to the transaction on Blannerhassett’s Island -can be admitted; because such testimony, being in its nature merely -corroborative and incompetent to prove the overt act in itself, is -irrelevant until there be proof of the overt act by two witnesses. - -“This opinion does not comprehend the proof by two witnesses that the -meeting on Blannerhassett’s Island was procured by the prisoner. On -that point the court for the present withholds its opinion for reasons -which have been already assigned; and as it is understood from the -statements made on the part of the prosecution that no such testimony -exists. If there be such let it be offered; and the court will decide -upon it. The jury have now heard the opinion of the court on the law -of the case. They will apply that law to the facts, and will find a -verdict of guilty or not guilty as their own consciences may direct.” - -The next morning Mr. Hay, after counsel for the prosecution had given -serious consideration to the opinion of the court, stated that he had -neither argument nor evidence to offer to the jury. The jury then -retired and after an absence of twenty-five minutes, reported to the -court through their foreman, Colonel Carrington, the following verdict -endorsed on the indictment: - -“We of the jury find that Aaron Burr is not proved to be guilty under -the indictment by any evidence submitted to us. We therefore find him -not guilty.” - -Colonel Burr and his counsel objected to entering this form of the -verdict on the record. The court at length decided that the verdict -should remain on the indictment as found by the jury, and that the -record of the proceedings of the court should show simply a verdict of -“not guilty.” The following day Burr was released from prison on bail. - -The trial was now begun on the indictment for high misdemeanor against -him, for having set on foot a military expedition against the territory -of a foreign prince, to-wit, the Province of Mexico, which was within -the empire of the King of Spain, who was at peace with the United -States. The trial lasted until the latter part of October when Burr was -acquitted. - - -THE END - - - - -Transcriber’s Notes - - -Punctuation and spelling were made consistent when a predominant -preference was found in this book; otherwise they were not changed. - -Simple typographical errors were corrected; occasional unbalanced -quotation marks retained. - -Ambiguous hyphens at the ends of lines were retained; occurrences of -inconsistent hyphenation have not been changed. - -Most of the illustrations are of handwritten documents, and some are -difficult to read. Their lighting and contrast in this eBook have -been adjusted in an attempt to improve readability. The most readable -versions of these documents may be found in the HTML version of this -eBook at Project Gutenberg. - -List of Illustrations: “Affidavit of Burr for subœena” originally was -printed as “Affidavit at Burr for subpoena”; changed here. - -Page 58: Transcriber corrected several lines of transposed text. - -Page 78: “MacRae” originally was printed as “McRae” but was changed -here to match the predominant spelling of the name elsewhere in this -eBook. - - - - - -End of Project Gutenberg's The Trial of Aaron Burr, by Joseph P. 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Brady - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - - - -Title: The Trial of Aaron Burr - -Author: Joseph P. Brady - -Release Date: July 9, 2017 [EBook #55073] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE TRIAL OF AARON BURR *** - - - - -Charlie Howard and the Online Distributed Proofreading -Team at http://www.pgdp.net (This file was produced from -images generously made available by The Internet Archive) - - - - - - -</pre> - - -<div class="transnote covernote"> -<p class="center">Transcriber’s Note: Cover created by Transcriber and placed in the Public Domain. -</p></div> - -<h1><span class="small">THE TRIAL OF AARON BURR</span></h1> - -<div id="i_1" class="newpage p4 figcenter" style="max-width: 7.625em;"> - <img src="images/i_001.jpg" width="122" height="107" alt="" /></div> - -<div id="i_3" class="newpage p4 figcenter" style="max-width: 24.25em;"> - <img src="images/i_003.jpg" width="388" height="600" alt="Publisher logo" /> - <div class="caption">CHIEF JUSTICE MARSHALL</div> - <div class="captionl"><i>Frontispiece</i></div></div> - -<p class="newpage p4 center xxlarge bold wspace"> -THE TRIAL<br /> -OF AARON BURR</p> - -<p class="p2 center"><span class="smaller">BY</span><br /> -<span class="larger wspace">JOSEPH P. BRADY</span><br /> -<span class="smaller"><i>Clerk of the United States District Court for the<br /> -Eastern District of Virginia</i></span></p> - -<div id="i_5" class="figcenter" style="max-width: 5em;"> - <img src="images/i_005.jpg" width="80" height="98" alt="Publisher logo" /></div> - -<p class="p2 center wspace">NEW YORK<br /> -THE NEALE PUBLISHING COMPANY<br /> -1913 -</p> - -<hr /> - -<p class="newpage p4 center wspace"> -<span class="smaller">Copyright, 1913, by<br /> -<span class="smcap">The Neale Publishing Company</span></span> -</p> - -<hr /> - -<div class="chapter"> -<h2><a id="PREFACE"></a>PREFACE</h2> - -<p>Among the records of the United States -Courts at Richmond, Virginia, are the original -papers in the case of the “United States versus -Aaron Burr, Indictment for Treason.” The -tawny fingers of time have dealt gently with -these papers, and although more than a century -old they are still in a good state of preservation.</p> - -<p>The story of the trial of Aaron Burr has often -been written, and there is little new that can -be added; but these old manuscripts and official -documents, so historic in their character, should -at least in some form survive the ravages of -time. It is with this thought in mind, and with -the hope that possibly some fact not already -recorded in history might be disclosed by the -original papers, that this brief history is written.</p> -</div> - -<hr /> - -<div class="chapter"> -<h2><a id="LIST_OF_ILLUSTRATIONS"></a>LIST OF ILLUSTRATIONS</h2> - -<table id="loi" summary="List of Illustrations"> - <tr> - <td class="tdl">Chief Justice Marshall</td> - <td class="tdr"><a href="#i_3"><i>Frontispiece</i></a></td></tr> - <tr class="small nobpad"> - <td> </td> - <td class="tdr nobpad">FACING<br /><span class="l05">PAGE</span></td></tr> - <tr> - <td class="tdl">Warrant for arrest of Burr</td> - <td class="tdr"><a href="#i_20">20</a></td></tr> - <tr> - <td class="tdl">Affidavit of Burr for subpœna <i xml:lang="la" lang="la">duces tecum</i> for President Jefferson</td> - <td class="tdr"><a href="#i_40">40</a></td></tr> - <tr> - <td class="tdl">Subpœna <i xml:lang="la" lang="la">duces tecum</i> for President Jefferson</td> - <td class="tdr"><a href="#i_50">50</a></td></tr> - <tr> - <td class="tdl">Subpœna <i xml:lang="la" lang="la">duces tecum</i> for President Jefferson (continued)</td> - <td class="tdr"><a href="#i_50a">50</a></td></tr> - <tr> - <td class="tdl">Findings of the Grand and Petit Juries</td> - <td class="tdr"><a href="#i_70">70</a></td></tr> -</table> -</div> - -<hr /> - -<p><span class="pagenum"><a id="Page_9">9</a></span></p> - -<div class="chapter"> -<h2><a id="THE_TRIAL_OF_AARON"></a> -<span class="large wspace">THE TRIAL OF AARON -BURR</span></h2> - -<p>On the evening of the 26th of March, 1807, -Aaron Burr, attended by a military guard of -nine men, under the command of Major Nicholas -Perkins, who had been largely instrumental in -his arrest, arrived in the City of Richmond, Virginia. -Immediately upon his arrival he was -lodged in the Eagle Tavern, the leading hostelry -of its time in that city, where he remained -confined until March 30th, when he was -delivered to the civil authorities by virtue of a -warrant issued by Chief Justice Marshall.</p> - -<p>The preliminary examination of Burr was -private. The warrant was served on him in -his apartment by Major Scott, the Marshal of -the Virginia District, who, after informing -him of the object of his visit, conducted him -to another room, where he was brought before -the Chief Justice. The few persons present -were Cæsar A. Rodney, Attorney-General<span class="pagenum"><a id="Page_10">10</a></span> -of the United States; George Hay, the United -States Attorney for the Virginia District; Edmund -Randolph and John Wickham, counsel for -the prisoner; the United States Marshal and -his two deputies; and a few friends of the counsel -for Burr.</p> - -<p>The evidence introduced on behalf of the -prosecution was a copy of the record in the case -of Bollman and Swartout in the Supreme Court -of the United States, which contained the depositions -of General Eaton and General Wilkinson -directly connecting Burr with the offense -charged against him. No verbal testimony was -heard, except that of Major Perkins, who told -of the arrest of the prisoner and of his conveyance -of him to Richmond.</p> - -<p>At the conclusion of the evidence a motion in -writing was submitted by Mr. Hay for the commitment -of the accused on two charges, <span class="locked">viz:—</span></p> - -<p>First. For a high misdemeanor, in setting -on foot, within the United States, a military expedition -against the dominions of the King of -Spain, a foreign prince, with whom the United -States, at the time of the offense, were, and -still are, at peace.</p> - -<p><span class="pagenum"><a id="Page_11">11</a></span> -Second. For treason in assembling an armed -force, with a design to seize the city of New -Orleans, to revolutionize the territory attached -to it, and to separate the western from the Atlantic -states.</p> - -<p>It soon developed that this motion would -cause considerable discussion, and as previously -agreed upon by counsel, with the approval of -the Chief Justice, the further hearing of the -case was adjourned to the House of Delegates -in the Capitol, where all subsequent proceedings -were had.</p> - -<p>The argument on the motion lasted two days. -It was opened by Mr. Hay for the United -States. He was followed by Mr. Wickham and -Mr. Randolph for the accused. Colonel Burr -spoke about ten minutes in his own behalf, and -Mr. Rodney, the Attorney-General of the United -States, closed the discussion.</p> - -<p>The third day of the trial, the Chief Justice -delivered his written opinion. “On an application -of this kind,” says he, “I certainly should -not require that proof which would be necessary -to convict the person to be committed on -a trial in chief; nor should I even require that<span class="pagenum"><a id="Page_12">12</a></span> -which should absolutely convince my own mind -of the guilt of the accused; but I ought to require, -and I should require, that probable cause -be shown; and I understand probable cause to -be a case made out by proof furnishing good -reason to believe that the crime alleged has -been committed by the person charged with having -committed it.” The Chief Justice then reviews -the testimony of General Eaton and General -Wilkinson in the Swartout and Bollman -case to show how far these charges are supported -by probable cause, and in conclusion delivers -himself as follows: “I shall not therefore -insert in the commitment the charge of -high treason, since it will be entirely in the -power of the Attorney-General to prefer an indictment -against the prisoner for high treason -should he be furnished with the necessary testimony.”</p> - -<p>Burr was now called upon to give bond, and -the amount to be required of him gave rise to -much discussion. The Chief Justice stated, -“that he wished it to be neither too large to -amount to oppression, nor too small to defeat -the objects of justice.” It had occurred to<span class="pagenum"><a id="Page_13">13</a></span> -him that the sum of ten thousand dollars would -perhaps avoid both these extremes. Mr. Hay -earnestly insisted upon a larger amount, but the -amount was fixed at ten thousand. Burr was -then bailed for his appearance at the next term -of the Circuit Court of the United States to convene -at Richmond on the 22d of May next, to -answer the charge of high misdemeanor.</p> - -<p>Aaron Burr was now at liberty. President -Jefferson was enraged at the result of the first -trial. The feeling between the partisans of the -Administration and the Federalists, to which -political party Marshall belonged, was rampant. -The friends of Jefferson charged Marshall with -having permitted his political bias and personal -dislike of the President to warp his judgment -in favor of Burr throughout the trial, and Jefferson -in one of his letters to Senator Giles, -written a few days after Burr’s first examination -at Richmond, refers to the <em>tricks</em> of the -judges in hastening the trial so as to clear Burr. -It was evident that Jefferson was to be the real -prosecutor of Burr, and had made up his mind -to convict him at whatever cost.</p> - -<p>The 22d of May, 1807, the United States Circuit<span class="pagenum"><a id="Page_14">14</a></span> -Court for the Virginia District convened -in the House of Delegates in the City of Richmond, -Virginia, with Chief Justice Marshall -and Cyrus Griffin, District Judge, on the bench.</p> - -<p>Long before the hour the Court was to meet -the hall and the entrances to the Capitol were -thronged with people. Not a few of them were -witnesses and persons summoned as grand -jurors, while others were attracted by the -notoriety of the trial. There could be seen -John Randolph, of Roanoke, “the brilliant, eccentric -leader of the Quids,” in the House, and -afterwards United States Senator from Virginia; -Andrew Jackson, who was loud in his -denunciation of Jefferson and his administration -for “persecuting his innocent friend”; -Winfield Scott, then a young lawyer just admitted -to practice; General Eaton, with a -grudge against the Government for its failure -to pay his claim for services and cash advanced -while consul in Barbary, and with whom Burr -had talked with great freedom about his plans; -Commodore Truxton, another disgruntled officer -of the Government in whom Burr had confided; -Col. Morgan, a valiant old campaigner from the<span class="pagenum"><a id="Page_15">15</a></span> -West, and his two stalwart sons, whose services -Burr tried to enlist, but whom Jefferson -credited with giving him the first intimation of -Burr’s designs; John Graham, who had -been sent out by the Administration to the -Mississippi territory as its confidential agent -to circumvent Burr and expose the conspiracy; -Colonel Dupiester, one of the leading -spirits in the plot and Burr’s trusted -friend and ally; Jonathan Dayton, formerly -speaker of the House of Representatives -and Ex-Senator from the State of New -Jersey, and John Smith, lately a Senator -from Ohio, both friends of Burr and prominent -in the conspiracy with him; Dr. Erick Bollman, -an educated German, who had recently distinguished -himself by a gallant but unsuccessful -attempt to rescue Lafayette from prison in -the castle of Olmutz, Austria, and in whom Burr -had confided. Jefferson expected Bollman to -give testimony that might criminate himself, -and during the trial sent through District Attorney -Hay a pardon for him, which Bollman -indignantly refused to accept. And thither also -came Governor Alston of South Carolina, and<span class="pagenum"><a id="Page_16">16</a></span> -his wife, the beautiful and accomplished Theodosia, -the only daughter of Aaron Burr; who -had fled to his side the moment she had heard -of his arrest.</p> - -<p>The court was formally opened at half past -twelve o’clock, and probably there never was -such an array of learning and legal attainments -as was present on that occasion. Foremost and -overshadowing all was John Marshall, the Chief -Justice. “Gentlemen of the profession,” said -Parton, “who witnessed the trial, who saw the -effective dignity with which the judge presided -over the court, who heard him read those opinions, -so elaborate and right, though necessarily -prepared on the spur of the moment, regarded -it as the finest display of judicial skill and -judicial rectitude which they had ever beheld.”</p> - -<p>Seated at the bar and appearing in behalf of -the United States were Colonel George Hay, -William Wirt and Alexander MacRae.</p> - -<p>Colonel Hay was a son-in-law of James Monroe, -who was afterwards President of the -United States. He was a lawyer of great industry -and much ability, and bore the laboring -oar in the trial. He was a zealous partisan of<span class="pagenum"><a id="Page_17">17</a></span> -Jefferson, and was assisted in the prosecution -by almost daily communications from him. -Later he was appointed United States judge for -the Virginia district. Mr. Wirt was present at -the personal request of President Jefferson. -He was the most eloquent and accomplished advocate -then at the Richmond bar. There was -no one whose rising to speak “so instantaneously -hushed the spectators to silence.” “A -handsome, fortunate, brilliant, high-minded man -was William Wirt,” says Parton, “the toil of -whose life it was to achieve those solid attainments -which alone make brilliancy of utterance -endurable in a court of justice.” Mr. MacRae, -the third attorney for the government, was then -Lieutenant-Governor of Virginia, and while less -able than his two colleagues, was a lawyer of -“respectable ability and a sharp tongue.”</p> - -<p>On the side of the defense were the greatest -lawyers of the time. The best known of them -was perhaps Edmund Randolph. Mr. Randolph -had been a delegate to the Continental -Congress and to the Philadelphia Constitutional -Convention, Attorney-General and Governor -of Virginia, and Attorney-General and<span class="pagenum"><a id="Page_18">18</a></span> -Secretary of State under Washington. He was -a man of great experience and learning. Associated -with him from the day of Burr’s arrival -in Richmond was John Wickham, grandfather -of the late General W. C. Wickham and -great-grandfather of Hon. Henry T. Wickham, -an eminent member of the present bar of Virginia. -Mr. Wickham was regarded by many -as the ablest lawyer at the Virginia bar. “The -qualities,” says Mr. William Wirt in the <cite>British -Spy</cite>, “by which Mr. Wickham strikes the multitude -are his ingenuity and his wit. But those -who look more closely into the anatomy of his -mind, disclose many properties of much higher -dignity and importance. This gentleman, in -my opinion, unites in himself a greater diversity -of talents and acquirements than any other at -the bar in Virginia.” Another great lawyer of -counsel for Burr, and probably the greatest one -of his day, was Luther Martin of Maryland. -He and Burr had formed a friendship about two -years before in Washington, when Justice -Chase of the Supreme Court of the United -States was impeached by the House of Representatives -and tried by the Senate for abuse of<span class="pagenum"><a id="Page_19">19</a></span> -his office in certain political trials. Burr was -then Vice-President of the United States, and -presided over the Senate in that celebrated -proceeding, says a contemporary, “with the -dignity and impartiality of an angel, but with -the rigor of a devil.” Martin was the leading -counsel for Justice Chase, and greatly distinguished -himself. Conspicuous also was Benjamin -Botts, father of the distinguished John -Minor Botts, who although the youngest man on -the side of the defense, had already become -eminent in his profession.</p> - -<p>The other counsel for Burr were Charles Lee, -an Ex-Attorney-General of the United States, -and a lawyer of much learning; “Jack” Baker, -who was more of a “good fellow” than lawyer; -and Washington Irving, then attracting some -attention in the field of letters, who to use his -own words, “went to Richmond on an informal -retainer from one of the friends of Col. Burr,” -although, as he said, “his client had little belief -in his legal erudition, and did not look for any -approach to a professional debut, but thought -he might in some way or other be of service -with his pen.”</p> - -<p><span class="pagenum"><a id="Page_20">20</a></span> -But of the defense <i xml:lang="la" lang="la">facile princeps</i> was Burr -himself. He was keenly alive to every proceeding, -and while the burden fell upon others, no -move was made, or point conceded, without his -sanction. Mr. Robertson, the reporter of the -trial, says: “Among these stood Aaron Burr, -proudly pre-eminent in point of intelligence to -his brethern of the bar, who had been vice-president -of the United States, and now accused of -the highest and darkest crime in the criminal -code. Standing before the Supreme tribunal -of his country, and with the eyes of the nation -upon him, he was, in the opinion of many, already -condemned. He had the talent and tact, -and the resources of the Government to contend -against, and every faculty of his mind was exerted -in his own defense. The magnitude of -the charge, the number of persons involved, the -former high standing and extraordinary fortunes -of the accused, had excited an interest in -the community such as never before had been -known.”</p> - -<div id="i_20" class="figcenter" style="max-width: 50em;"> - <img src="images/i_023.jpg" width="800" height="660" alt="" /> - <div class="caption">WARRANT FOR ARREST OF BURR</div> - <div class="captionl"><i>Facing p. 20</i></div></div> - -<p>The Marshal had summoned for service on -the grand jury the most intelligent and representative<span class="pagenum"><a id="Page_21">21</a></span> -citizens of the Commonwealth. -Prominent among them was William B. Giles. -He had served in both branches of the Legislature -of Virginia; had been Governor of the State -of Virginia; and representative and senator -in the Congress of the United States. Senator -Giles was a partisan of Jefferson, a member -of what John Randolph called “the President’s -back-stair cabinet.” He was the leader -of the republicans in the Senate, and had been -foremost in the assaults on the “last stronghold -of Federalism—the Judiciary.”</p> - -<p>When Senator Giles was called on the <i xml:lang="fr" lang="fr">voir -dire</i> he was challenged personally by Burr. -Burr claimed the same right of challenging -grand jurors for favor that he had of challenging -petit jurors, and was sustained in his position -by the Chief Justice. His objection to Giles -was that, on occasions in the Senate, he had pronounced -his opinion on certain documents sent -to that body by President Jefferson attributing -to Burr treasonable designs, and upon such information -advocating the suspension of the writ -of <i xml:lang="la" lang="la">habeas corpus</i>. He stated that he could produce<span class="pagenum"><a id="Page_22">22</a></span> -evidence, if necessary, of public utterances -of Senator Giles confirming these views. Senator -Giles was stricken from the panel.</p> - -<p>Another former United States Senator, and -afterwards Governor of Virginia, summoned as -a grand juror, was Wilson Cary Nicholas. He -was a personal enemy of Burr, and when his -name was called Burr challenged him. Colonel -Nicholas had served three years in the Senate -when Burr presided over it, and had taken a -very decided part in favor of the election of his -successor. He had freely expressed his suspicions, -both in correspondence and publicly, of -Colonel Burr’s probable objects in the west. -He was rejected.</p> - -<p>Some of the other distinguished citizens of -Virginia summoned by the Marshal, and who -served on the grand jury, were Littleton Waller -Tazewell and James Pleasants, both afterwards -United States Senators and Governors of Virginia; -Joseph C. Cabell, one of the founders with -Jefferson of the University of Virginia; William -Daniel, father of the late Judge William -Daniel of the Court of Appeals of Virginia, and -grandfather of John Warwick Daniel, the lamented<span class="pagenum"><a id="Page_23">23</a></span> -senator from Virginia; and Colonel -James Barbour, afterwards Governor of Virginia, -United States Senator, Secretary of War -under John Quincy Adams, and Minister to -England.</p> - -<p>The general belief in the guilt of the accused -was manifested at the very beginning of the -trial. The proclamations and the special messages -of President Jefferson to Congress, and -the depositions of Generals Eaton and Wilkinson -had had their effect on the public mind. A -number of citizens summoned for service on the -grand jury frankly admitted they had prejudged -the case, and in consequence of such disqualifications -and excuses the original panel was reduced -to fourteen.</p> - -<p>The court, being now without a legal grand -jury in attendance, directed the Marshal to summon -from the bystanders two additional persons. -The Marshal summoned and returned -John Randolph and William Foushee. Mr. -Randolph was named as foreman, but upon being -asked to take the oath, requested to be excused -from serving. He had formed an opinion -concerning the nature and tendency of certain<span class="pagenum"><a id="Page_24">24</a></span> -transactions imputed to Mr. Burr. He had a -strong prepossession, but thought he could divest -himself of it upon evidence. Mr. Burr observed -that he was afraid they would be unable -to find any man without this prepossession. -“The rule is,” said the Chief Justice, “that a -man must not only have formed, but declared an -opinion, in order to exclude him from serving -on the jury.” Mr. Randolph replied that he -had no recollection of having declared one, and -he was thereupon sworn as foreman.</p> - -<p>Dr. Foushee when called to be sworn was -found to be disqualified, and was permitted to -withdraw. Colonel James Barbour was called -in his stead and accepted.</p> - -<p>The selection of the grand jury having been -completed, the grand jury was duly sworn by -the clerk. It was composed of the following -citizens:</p> - -<p>John Randolph, Foreman, Joseph Eggleston, -Joseph C. Cabell, Littleton W. Tazewell, Robert -Taylor, James Pleasants, John Brockenbrough, -William Daniel, James M. Garnett, John Mercer, -Edward Pegram, Munford Beverly, John<span class="pagenum"><a id="Page_25">25</a></span> -Ambler, Thomas Harrison, Alexander Shephard -and James Barbour.</p> - -<p>The Chief Justice promptly delivered an appropriate -charge to the grand jury. He dwelt -more particularly upon the definition and nature -of treason, and the testimony requisite to -prove it. He said in part: “To you by the -Constitution and laws of our country is confided -the important right of accusing those whose offenses -shall have rendered them subject to -punishment under the laws of the United States. -It is on you that the fundamental principles on -which the stability of our political institutions -and the safety of individuals most greatly depend. -For to little purpose would laws be -formed to protect the innocent of the body -politic from crimes of the worst nature if a misplaced -nonentity should control the execution of -them. Juries, gentlemen, as well as judges, -should be superior to every temptation, which -hope, fear or compassion, may suggest; who will -allow no influence to balance their love of justice; -who will follow no guide but the laws of -their country.</p> - -<p><span class="pagenum"><a id="Page_26">26</a></span> -“In outlining to you, gentlemen of the jury, -those offenses which are cognizable in the court, -and which may scarcely be noticed by you, the -first on the calendar, as well as the highest -known atrocity, is treason against the United -States. With a jealousy peculiar to themselves -the American people have withdrawn the subject -from the power of their legislature, and -have declared in their Constitution that ‘treason -against the United States shall consist only in -levying war against them, or in adhering to -their enemies, giving them aid and comfort.’”</p> - -<p>After the grand jury had retired Colonel -Burr addressed the court on the propriety of -specially instructing them in regard to the admissibility -of certain evidence, which he stated -would be laid before the grand jury by the attorney -for the United States. Mr. Hay opposed -this application. He said he could never agree -to it, and he trusted the court also would never -sanction such a suggestion; that Colonel Burr -stood before the court on the same footing as -any other citizen, and he hoped the court would -not distinguish between his case and that of -any other. The question was postponed for<span class="pagenum"><a id="Page_27">27</a></span> -further discussion. The court then adjourned -to the following morning.</p> - -<p>The court met the next day and the grand -jury also appeared. It became apparent that -nothing effectual could be done until the arrival -of General Wilkinson, the most important witness -for the Government. The grand jury were -therefore adjourned from day to day until he -put in his appearance.</p> - -<p>Meanwhile Mr. Hay had moved to commit -Burr on a charge of high treason against the -United States. On his preliminary examination -he was bailed on the charge of misdemeanor, -but said Mr. Hay “there was no evidence -of an overt act. The evidence is different -now.”</p> - -<p>This motion was discussed at length throughout -the day, and provoked one of the most eloquent -debates of the whole trial and revealed -the political passions of the day. Mr. Botts -“begged leave to make a few remarks on this -extraordinary application, and the pernicious -effects such an extraordinary measure, if generally -practised, would inevitably produce. -The organ particularly appropriated for the<span class="pagenum"><a id="Page_28">28</a></span> -consideration of the evidence which the motion -calls for, is the grand jury; and the motion is -to divest the grand jury of the office, which the -Constitution and laws have appropriated to -them, and to devolve it upon the court. The -grand juror’s oath is to inquire into all crimes -and misdemeanors committed within the district -of the State of which they are freeholders. -Their office is to perform that which the court -is now called upon to perform. To them belongs -the exclusive duty of inquiring and examining -into all species of evidence, which may -lead to a conviction of the crimes of which -Colonel Burr is now charged; but there is a -great objection to the exercise of this examining -and committing power by a high law officer, -who is to preside upon the trial, when the grand -jury, the appropriate tribunal, is in session.”</p> - -<p>After Mr. Botts had taken his seat, Mr. Hay -in response to an inquiry by the Chief Justice, -as to whether the counsel for the prosecution -intended to open the case more fully, stated, -“that he had not intended to open it more fully; -he did not himself entertain the least doubt, that -if there was sufficient proof produced to justify<span class="pagenum"><a id="Page_29">29</a></span> -the commitment of Colonel Burr, the court had -completely the right to commit him.”</p> - -<p>Mr. Wickham complained because the gentlemen -on the other side had not given them notice -of their intended motion. “We come into this -discussion completely off our guard, completely -unprepared.” “The fact is this,” replied Mr. -Hay, “Mr. Wilkinson is known to be a material -witness in this prosecution; his arrival in Virginia, -might be announced in this city, before -he himself reached it. I do not intend to say -what effect it might produce upon Colonel -Burr’s mind; but certainly Colonel Burr would -be able to effect his escape, merely upon paying -the recognizance of his present bail. My only -object then was to keep his person safe, until we -could have investigated the charge of treason; -and I really did not know but that if Colonel -Burr had been previously apprised of my motion -he might have attempted to avoid it. But -I did not promise to make the communication -to the opposite counsel, because it might have -defeated the very end for which it was intended.”</p> - -<p>Mr. Wickham observed, “that the present motion<span class="pagenum"><a id="Page_30">30</a></span> -was unprecedented in a system of criminal -jurisprudence, which was upwards of one -hundred years old.” Continuing, Mr. Wickham -said: “What, sir, is the tendency of this -application? What is the motion? I have no -doubt, the gentlemen mean to act correctly—I -wish to cast no imputation; but the counsel and -the court well know that there are a set of busy -people (not I hope employed by the Government) -who, thinking to do right, are laboring -to ruin the reputation of my client. I do not -charge the Government with this attempt; but -the thing is actually done. Attempts have been -made. The press from one end of the continent -to the other, has been enlisted on their side -to excite prejudice against Colonel Burr. Prejudice? -Yes, they have influenced the public -opinion by such representations, and by persons -not passing between the prisoner and his -country, but by <i xml:lang="la" lang="la">ex parte</i> evidence and mutilated -statements. Ought not this court to bar the -door as much as possible, against such misrepresentation? -to shut out every effort to excite -further prejudice, until the case is decided by -a sworn jury? Not by the floating rumors<span class="pagenum"><a id="Page_31">31</a></span> -of the day, but by the evidence of sworn witnesses?”</p> - -<p>In reply to Mr. Botts and Mr. Wickham, Mr. -Wirt for the first time addressed the court:</p> - -<p>“Where is the crime,” said Mr. Wirt, “of -considering Aaron Burr a subject to the ordinary -operation of the human passions? Towards -any other man, it seems, the attorney -would have been justified in using precautions -against alarms and escapes; it is only improper -when applied to this man. Really, sir, I recollect -nothing in the history of his deportment -which renders it so very incredible, that Aaron -Burr would fly from a prosecution. But at all -events, the attorney is bound to act on general -principles, and to take care that justice be -had against every person accused, by whatever -name he may be called, or by whatever previous -reputation he may be distinguished. This motion, -however, it seems, is not legal at this time, -because there is a grand jury in session. The -amount of the position is, that though it may -be generally true, that the court possesses the -power to hear and commit, yet, if there be a -grand jury, the power of the court is suspended;<span class="pagenum"><a id="Page_32">32</a></span> -and the commitment cannot be had unless -in consequence of a presentment or bill of -indictment found by that body. The general -power of the court being admitted, those who -rely on this exception, should support it by authority; -and, therefore, the <em>loud call</em> for precedents, -which we have heard from the other -side come improperly from that quarter. We -ground this motion in the general power of the -court to commit: let those who say that this -general power is destroyed by the presence of -a grand jury show one precedent to countenance -this original and extraordinary motion. I believe, -sir, I may safely affirm, that not a single -reported case or dictum can be found, which -has the most distant bearing towards such an -idea. Sir, no such dictum or case ought to exist. -It would be unreasonable and destructive -of the principles of justice.</p> - -<p>“But, sir, we are told, that the investigation -is calculated to keep alive the public prejudice; -and we hear great complaints about these public -prejudices. The country is represented as -being filled with misrepresentations and calumnies -against Aaron Burr; the public indignation,<span class="pagenum"><a id="Page_33">33</a></span> -it is said, is already sufficiently excited. This -argument is also inapplicable to our right to -make this motion; it does not affect the legality -of our procedure. Sir, if Aaron Burr be innocent -instead of resisting this motion, he ought -to hail it with triumph and exultation. What -is it that we propose to introduce? Not the -rumors that are floating through the world, nor -the <em>bulk</em> of the multitude, nor the speculations -of newspapers, but the <em>evidence of facts</em>. We -propose, that the whole evidence exculpatory -as well as accusative, shall come before you; -instead of exciting, this is the true mode of correcting, -prejudices. The world, which it is -said has been misled and influenced by falsehood, -will now hear the truth. Let the truth -come out, let us know how much of what we -have heard is false, how much of it is true; how -much of what we feel is prejudice, how much -of it is justified by fact. Whoever before heard -of such an apprehension as that which is professed -on the other side? <em>Prejudice excited by -evidence!</em> Evidence, sir, is the great corrector -of prejudice. Why then does Aaron -Burr shrink from it? It is strange to me that a<span class="pagenum"><a id="Page_34">34</a></span> -man, who complains so much of being, without -cause, illegally seized and transported by a -military officer, should be afraid to confront the -evidence; evidence can be promotive only of -truth. I repeat it then, sir, why does he shrink -from the evidence? The gentlemen on the -other side can give the answer. On our part we -are ready to produce that evidence.</p> - -<p>“The gentleman assures us, that no imputation -is meant against the Government. Oh no, -sir; Colonel Burr indeed has been oppressed, -has been persecuted; but far be it from the -gentleman to charge the Government with it. -Colonel Burr indeed has been harassed by a -military tyrant, who is ‘the instrument of the -Government bound to blind obedience’; but the -gentleman could not by any means be understood -as intending to insinuate aught to the -prejudice of the Government. The gentleman is -understood, sir; his object is correctly understood. -He would divert the public attention -from Aaron Burr and point it to another quarter. -He would, too, if he could, shift the popular -displeasure, which he has spoken of, from<span class="pagenum"><a id="Page_35">35</a></span> -Aaron Burr to another quarter. These remarks -were not intended for your ear, sir; they -were intended for the people who surround us; -they can have no effect upon the mind of the -court. I am too well acquainted with the -dignity, the firmness, the illumination of this -bench, to apprehend any such consequence. -But the gentlemen would balance the account -of popular prejudices; they would convert the -judicial inquiry into a political question; they -would make it a question between Thomas -Jefferson and Aaron Burr. The purpose is -well understood, sir; but it shall not be served. -I will not degrade the administration of this -country by entering on their defence. Besides, -sir, this is not our business; at present we have -an account to settle, not between Aaron Burr -and Thomas Jefferson, but between Aaron Burr -and the laws of his country. Let us finish his -trial first. The administration, too, will be -tried before their country; before the world. -They, sir, I believe, will never shrink, either -from the evidence or the verdict.”</p> - -<p>Mr. Hay then delivered an elaborate argument<span class="pagenum"><a id="Page_36">36</a></span> -in support of his motion and was followed -by Mr. Randolph. Colonel Burr concluded the -debate in a ten minutes’ speech.</p> - -<p>“The case is this,” says Colonel Burr: “No -man denies the authority of the court, to commit -for a crime; but no commitment ought to be -made, except on probable cause. This authority -is necessary; because policy requires, that -there should be some power to bind an accused -individual for his personal appearance, until -there shall have been sufficient time to obtain -witnesses for his trial; but this power ought to -be controlled as much as possible.</p> - -<p>“The question in the present case, is whether -there is probable cause of guilt; and whether -time ought to be allowed to collect testimony -against me. This time ought generally to be -limited; but there is no precise standard on the -subject; and much is of course left to the sound -discretion of the court. Two months ago, however, -you declared that there had been time -enough to collect the evidence necessary to -commit, on probable cause; and surely, if this -argument was good then, it is still better now.</p> - -<p>“As soon as a prosecutor has notice of a<span class="pagenum"><a id="Page_37">37</a></span> -crime, he generally looks out for witnesses. It -is his object to obtain probable cause for committing -the accused. Five months ago, a high -authority declared that there was a crime; that -I was at the head of it; and it mentioned the -very place, too, where the crime was in a state -of preparation. The principal witness against -me, is said to be Mr. Wilkinson. Now, from -what period is the time to be computed? If, -from the time I was suspected, five months; -if, from the time when I was seized, three -months; or is it to be only computed from -the time when I was committed? So that it is -near forty days since the notice must have arrived -at New Orleans. But a vessel navigates -the coast, from New Orleans to Norfolk, in three -weeks. I contend, however, that witnesses -ought to be produced, from the very time when -the crimes are said to be committed. There is, -then, no apology for the delay of the prosecution, -as far as it respects the only person for -whom an apology is attempted to be made.</p> - -<p>“There are other serious objections to my -situation. Must I be ready to proceed to trial? -True, sir, but then it must be in their own way.<span class="pagenum"><a id="Page_38">38</a></span> -Are we then on equal terms here? Certainly -not. And again, as to affidavits. The United -States can have compulsory process to obtain -them; but I have no such advantage. An <i xml:lang="la" lang="la">ex -parte</i> evidence, then, is brought before this -court, on a motion for commitment. The evidence -on one side only is exhibited; but if I had -mine also to adduce, it would probably contradict -and counteract the evidence for the -United States. Well, sir, and these affidavits -are put into the newspapers, and they fall into -the hands of the grand jury. I have no such -means as these, sir; and where then is the -equality between the Government and myself.</p> - -<p>“The opinion of the court, too, is to be committed -against me. Is this no evil?</p> - -<p>“A sufficient answer, sir, has been given to -the argument about my delay; and its disadvantages -to myself have been ably developed. -But my counsel have been charged with declamation -against the Government of the United -States. I certainly, sir, shall not be charged -with declamation; but surely it is an established -principle, sir, that no government is so<span class="pagenum"><a id="Page_39">39</a></span> -high as to be beyond the reach of criticism; and -it is more particularly laid down, that this -vigilance is more peculiarly necessary, when -any government institutes a prosecution: and -one reason is, on account of the vast disproportion -of means which exists between it and the -accused. But, if ever there was a case which -justified this vigilance, it is certainly the present -one, when the Government has displayed -such uncommon activity. If, then, this Government -has been so peculiarly active against me, -it is not improper to make the assertion here, -for the purpose of increasing the circumspection -of the court.”</p> - -<p>Mr. Burr observed, that he meant by persecution, -the harassing of any individual, contrary -to the forms of law; and that his case, unfortunately, -presented too many instances of -this description. He would merely state a few -of them. He said that his friends had been -everywhere seized by the military authority; a -practice truly consonant with European despotisms. -He said that persons had been dragged -by compulsory process before particular tribunals, -and compelled to give testimony against<span class="pagenum"><a id="Page_40">40</a></span> -him. His papers, too, had been seized. “And -yet, in England,” said he, “where we say they -know nothing of liberty, a gentleman, who had -been seized and detained two hours, in a back -parlour, had obtained damages to the amount -of one thousand guineas.” He said that an -order had been issued to kill him, as he was descending -the Mississippi, and seize his property. -And yet, they could only have killed his person, -even if he had been formally condemned for -treason. He said that even post-offices had -been broken open, and robbed of his papers; -that, in the Mississippi Territory, even an indictment -was about to be laid against the postmaster; -that he had always taken this for a -felony; but that nothing seemed too extravagant -to be forgiven by the amiable morality -of this Government. “All this,” said Mr. Burr, -“may only prove that my case is a solitary -exception from the general rule. The Government -may be tender, mild and humane to everybody -but me. If so, to be sure it is of little -consequence to anybody but myself. But surely -I may be excused if I complain a little of such -proceedings.”</p> - -<div id="i_40" class="figcenter" style="max-width: 39.8125em;"> - <img src="images/i_045.jpg" width="637" height="800" alt="" /> - <div class="caption">AFFIDAVIT OF BURR FOR SUBPŒNA <i xml:lang="la" lang="la">DUCES TECUM</i> FOR - PRESIDENT JEFFERSON</div> - <div class="captionl"><i>Facing p. 40</i></div></div> - -<p><span class="pagenum"><a id="Page_41">41</a></span> -“Our President,” said Mr. Burr, “is a lawyer -and a great one too. He certainly ought to -know what it is that constitutes a war. Six -months ago, he proclaimed that there was a -civil war. And yet, for six months have they -been hunting for it, and still cannot find one -spot where it existed. There was, to be sure, a -most terrible war in the newspapers; but nowhere -else.”</p> - -<p>The next day the court in a written opinion -held that the motion was a proper one at this -stage of the proceedings, and the attorney for -the United States was permitted to open his -testimony; but in doing so, the Chief Justice -expressed his regrets that the result of the motion -“may be publications unfavorable to the -justice and to the right decision of the case.” -Counsel were impressed with this observation -of the court, and an attempt was made to reach -an agreement whereby a public disclosure of -the evidence at this time might be avoided. It -was proposed by counsel for the United States -that Colonel Burr’s recognizance be made sufficiently -large to insure his appearance to answer -the charge of high treason against the<span class="pagenum"><a id="Page_42">42</a></span> -United States, but on the following day this -proposition was rejected by Colonel Burr. Mr. -Hay then proceeded with some reluctance to -the examination of witnesses in support of his -motion to commit Burr, as “he felt the full -force of the objections to a disclosure of the evidence, -and the necessity of the court declaring -its opinion before the case was laid before the -jury.”</p> - -<p>The attorney for the United States first -sought to read the deposition of General Wilkinson, -which precipitated the question of the -order in which the testimony was to be introduced -and its admissibility. The Supreme -Court had already decided in the case of Swartout -and Bollman that the deposition of Wilkinson -might be admitted in evidence under certain -circumstances, but that it did not contain -any proof of an overt act. The Chief Justice -observed that no evidence certainly had any -bearing upon the present case unless the overt -act be proved, but he would permit the attorney -for the United States to pursue his own -course as to the order of introducing his testimony.</p> - -<p><span class="pagenum"><a id="Page_43">43</a></span> -A lengthy argument here ensued, in which -Mr. Botts took a conspicuous part. In a most -lucid manner he defined the crime of high treason -under the Constitution of the United -States, and applied it to the issue before the -court.</p> - -<p>“First,” he said, “it must be proved that -there was an actual war. A war consists -wholly in acts, and not in intentions. The acts -must be in themselves acts of war; and if they -be not so intrinsically, words or intentions cannot -make them so. In England, when conspiring -the death of the King was treason, the <i xml:lang="la" lang="la">quo -animo</i> formed the essence of the offence; but, -in America, the national convention has confined -treason to the act. We cannot have a -constructive war within the meaning of the -Constitution. An intention to levy war, is not -evidence that a war was levied. Intentions are -always mutable and variable; the continuance -of guilty intentions is not to be presumed. -Secondly, the war must not only have been -levied, but Colonel Burr must be proved to -have committed an overt act of treason in that -war. A treasonable intention to coöperate<span class="pagenum"><a id="Page_44">44</a></span> -is no evidence of an actual coöperation. The -acts of others, even if in pursuance of his -plan, would be no evidence against him. It -might not be necessary that he should be present, -perhaps; but he must be, at the time of -levying the war, coöperating by acts, or, in the -language of the Constitution, be committing -overt acts. Thirdly, the overt act by the accused, -as an actual war, must not only be -proved, but it must be proved to have been -committed within this district. Fourthly, -the overt act must be proved by two witnesses.”</p> - -<p>The Chief Justice declared this view of the -law to be correct, and General Wilkinson’s -deposition was accordingly put aside.</p> - -<p>Mr. Hay realized the utter futility of his -efforts to commit Burr on the charge of treason -at this stage of the case, and readily consented -to Burr’s proposition to double the -amount of his bond to answer the charge of a -misdemeanor. Luther Martin, who appeared -for the first time, became one of his sureties. -He declared in open court that he was happy to -have this opportunity to give a public proof of<span class="pagenum"><a id="Page_45">45</a></span> -his confidence in the honor of Colonel Burr, and -of his belief in his innocence.</p> - -<p>General Wilkinson had not as yet put in his -appearance, and much impatience was manifested -because of the inconvenience he had -caused. The grand jury were therefore adjourned -from day to day until the second day -of June, when they were adjourned until the -9th, on which last named day he was expected -to arrive.</p> - -<p>The court met accordingly on the 9th, and -after the names of the grand jury had been -called and explanations offered as to the continued -absence of General Wilkinson, Colonel -Burr moved the court to issue a subpœna -<i xml:lang="la" lang="la">duces tecum</i> addressed to the President of the -United States, requiring him to produce certain -papers, and on the following day he presented -to the court an affidavit, drawn up and -sworn to by himself in open court in support -of his motion. In this affidavit he sets forth -that he has great reason to believe, that a letter -from General Wilkinson to the President -of the United States, dated October 21st, 1806, -as mentioned in the President’s message of the<span class="pagenum"><a id="Page_46">46</a></span> -22nd January, 1807, to both Houses of Congress, -together with the documents accompanying the -said letter, and copy of the answer of said -Thomas Jefferson, or of anyone by his authority, -to the said letter, may be material in his -defence in the prosecution against him. And -further that he has reason to believe, the -military and naval orders given by the president -of the United States, through the departments -of war and of the navy, to the officers -of the army and navy, at or near New Orleans -stations, touching or concerning the said Burr, -or his property, will also be material in his defense; -and that he had made a personal request -for copies of these papers during a recent visit -to Washington, and had been refused.</p> - -<p>Mr. Martin in support of the propriety of -granting this particular subpœna laid down as -a general principle, in all civil or criminal cases, -that every man had a right by process to establish -his rights or his innocence. He asserted -that one of the papers necessary to the defense -is the original letter from General Wilkinson -described in Burr’s affidavit. The other papers -are copies of official orders by the navy and<span class="pagenum"><a id="Page_47">47</a></span> -war departments. He had supposed that every -citizen was entitled to such copies of official -papers as are material to him, and he had -never heard of but one instance where they were -refused, and this was under presidential influence.</p> - -<p>“We intend to show,” says Mr. Martin, -“that, by this particular order, his property -and his person were to be destroyed; yes, by -these tyrannical orders, the life and property -of an innocent man were to be exposed to destruction. -We did not expect these originals -themselves. But we did apply for copies; and -were refused under presidential influence. In -New York, in the farcical trials of Ogden and -Smith, the officers of the Government screened -themselves from attending, under the sanction -of the President’s name. Perhaps the same -farce may be repeated here; and it is for this -reason that we applied directly to the President -of the United States. Whether it would have -been best to have applied to the Secretaries of -State, of the Navy and War, I cannot say. All -that we want is the copies of some papers, and -the original of another. This is a peculiar case,<span class="pagenum"><a id="Page_48">48</a></span> -sir. The President has undertaken to prejudge -this trial by declaring, that, ‘of his guilt -there can be no doubt.’ He has assumed to -himself the knowledge of the Supreme Being -himself, and pretended to search the heart of -my highly respected friend. He has proclaimed -him a traitor in the face of that country, -which has rewarded him. He has let slip -the dogs of war, the hell-hounds of persecution, -to hunt down my friend. And would this -President of the United States, who has raised -all of this absurd clamor, pretend to keep back -the papers which are wanted for this trial, -where life is at stake? It is a sacred principle, -that in all such cases, the accused has a right to -all the evidence which is necessary to his defense. -And whoever withholds, wilfully, information -that would save the life of a person, -charged with a capital offence, is substantially -a murderer, and so recorded in the registry of -Heaven.”</p> - -<div id="i_50" class="figcenter" style="max-width: 75em;"> - <img src="images/i_058.jpg" width="1200" height="747" alt="" /> - <div class="caption">SUBPŒNA <i xml:lang="la" lang="la">DUCES TECUM</i> FOR PRESIDENT JEFFERSON</div></div> - -<div id="i_50a" class="figcenter" style="max-width: 75em;"> - <img src="images/i_059.jpg" width="1200" height="759" alt="" /> - <div class="caption">SUBPŒNA <i xml:lang="la" lang="la">DUCES TECUM</i> FOR PRESIDENT JEFFERSON (Continued)</div> - <div class="captionl"><i>Facing p. 50</i></div></div> - -<p>Mr. Wirt replied to Mr. Martin, and in the -course of his argument, made the following reference -to Martin’s arraignment of Jefferson -and the administration:</p> - -<p><span class="pagenum"><a id="Page_49">49</a></span> -“I cannot take my seat, sir, without expressing -my deep and sincere sorrow at the policy -which the gentlemen in the defense have thought -it necessary to adopt. As to Mr. Martin, I -should have been willing to impute this fervid -language to the sympathies and resentments of -that friendship which he has taken such frequent -occasions to express for the prisoner, his -honourable friend. In the cause of friendship -I can pardon zeal even up to the point of intemperance; -but the truth is, sir, that before Mr. -Martin came to Richmond, this policy was -settled, and on every question incidentally -brought before the court, we were stunned with -invectives against the administration. I appeal -to your recollection, sir, whether this policy was -not manifested even so early as in those new and -until now unheard of challenges to the grand -jury for favour? Whether that policy was not -followed up with increased spirit, in the very -first speeches which were made in this case; -those of Mr. Botts and Mr. Wickham on their -previous question pending the attorney’s motion -to commit? Whether they have not seized -with avidity every subsequent occasion, and on<span class="pagenum"><a id="Page_50">50</a></span> -every mere question of abstract law before the -court, flew off at a tangent from the subject, to -launch into declamations against the government? -Exhibiting the prisoner continually as -a persecuted patriot; a Russell or a Sidney, -bleeding under the scourge of a despot, and dying -for virtue’s sake! If there be any truth in -the charges against him, how different were the -purposes of his soul from those of a Russell or a -Sidney! I beg to know what gentlemen can intend, -expect, or hope, from these perpetual philippics -against the Government? Do they flatter -themselves that this court feel political -prejudices which will supply the place of argument -and innocence on the part of the prisoner? -Their conduct amounts to an insinuation of the -sort. But I do not believe it. On the contrary, -I feel the firm and pleasing assurance, that as to -the court, the beam of their judgment will remain -steady, although the earth itself should -shake under the concussion of prejudice. Or is -it on the bystanders that the gentlemen expect -to make a favourable impression? And do they -use the court merely as a canal, through which -they may pour upon the world their undeserved<span class="pagenum"><a id="Page_51">51</a></span> -invectives against the Government? Do they -wish to divide the popular resentment and -diminish thereby their own quota? Before the -gentlemen arraign the administration, let them -clear the skirts of their client. Let them prove -his innocence; let them prove that he has not -covered himself with the clouds of mystery and -just suspicion; let them prove that he has been -all along erect and fair, in open day, and that -these charges against him are totally groundless -and false. That will be the most eloquent -invective which they can pronounce against the -prosecution; but until they prove this innocence, -it shall be in vain that they attempt to divert -our minds to other objects, and other inquiries. -We will keep our eyes on Aaron Burr until he -satisfies our utmost scruple. I beg to know, sir, -if the course which gentlemen pursue is not disrespectful -to the court itself? Suppose there -are any foreigners here accustomed to regular -government in their own country, what can they -infer from hearing the federal administration -thus reviled to the federal judiciary? -Hearing the judiciary told, that the administration -are ‘Bloodhounds, hunting this man with<span class="pagenum"><a id="Page_52">52</a></span> -a keen and savage thirst for blood; that they -now suppose they have hunted him into their -toils and have him safe.’ Sir, no man, foreigner -or citizen, who hears this language addressed to -the court, and received with all the complacency -at least which silence can imply, can make any -inferences from it very honourable to the court. -It would only be inferred, while they are thus -suffered to roll and luxuriate in these gross invectives -against the administration, that they -are furnishing the joys of a Mahometan paradise -to the court as well as to their client. I -hope that the court, for their own sakes, will -compel a decent respect to that government of -which they themselves form a branch. On our -part, we wish only a fair trial of this case. If -the man be innocent, in the name of God let him -go; but while we are on the question of his guilt -or innocence, let us not suffer our attention and -judgment to be diverted and distracted by the -introduction of other subjects foreign to the -inquiry.”</p> - -<p>The counsel for the prosecution admitted that -the President of the United States was amenable -to an ordinary subpœna <i xml:lang="la" lang="la">ad testificandum</i><span class="pagenum"><a id="Page_53">53</a></span> -as any other citizen, but that the application for -a subpœna <i xml:lang="la" lang="la">duces tecum</i> was addressed to the -discretion of the court, and did not issue as a -process of right. Besides, the papers required -to be produced by such a process must be shown -to be material for the defense. They questioned -the propriety of compelling the chief -magistrate to produce in court any papers in -his possession not public in its character. They -further contended that until the grand jury had -found a true bill and the prosecutor had announced -his intention to proceed to a trial -thereon the prisoner had no right to legal -process.</p> - -<p>After five days of debate the Chief Justice -delivered an elaborate opinion on the motion of -Colonel Burr. He decided that the subpœna -<i xml:lang="la" lang="la">duces tecum</i> directed to the president of the -United States might issue. He held that any -person charged with a crime in the courts of the -United States has a right, before, as well as -after indictment, to the process of the court to -compel the attendance of his witnesses; that in -the provisions of the Constitution, and of the -statutes which give to the accused a right to the<span class="pagenum"><a id="Page_54">54</a></span> -compulsory process of the court, there is no exception -whatever.</p> - -<p>“If, upon any principle,” said the Chief Justice, -“the President could be construed to stand -exempt from the general provisions of the Constitution, -it would be because his duties, as -chief magistrate, demand his whole time for -national objects. But it is apparent that this -demand is not unremitting; and, if it should -exist at the time when his attendance on a -court, is required, it would be sworn on the return -of the subpœna, and would rather constitute -a reason for not obeying the process of the -court, than a reason against it being issued. -The guard furnished to this high office to protect -him from being harassed by vexatious and -unnecessary subpœnas, is to be looked for in -the conduct of a court after those subpœnas -have issued; not in any circumstance which is to -precede their being issued. If, in being summoned -to give his personal attendance to testify, -the law does not discriminate between the President -and a private citizen, what foundation is -there for the opinion, that this difference is created -by the circumstance, that his testimony depends<span class="pagenum"><a id="Page_55">55</a></span> -on a paper in his possession, not on facts, -which come to his knowledge otherwise than by -writing? The court can perceive no foundation -for such an opinion. The propriety of introducing -any paper into a case, as testimony, must -depend on the character of the paper, not on the -character of the person who holds it. A subpœna -<i xml:lang="la" lang="la">duces tecum</i>, then, may issue to any person -to whom any ordinary subpœna may issue, -directing him to bring any paper of which the -party praying it has a right to avail himself -as testimony; if, indeed, that be the necessary -process for obtaining the view of such -paper.”</p> - -<p>The decision of the Chief Justice and the strictures -of Martin threw Jefferson into a violent -rage. We find him promptly writing to Mr. -Hay, “Shall we move to commit Luther Martin -as <i xml:lang="la" lang="la">particeps criminis</i> with Burr? Grayball -will fix upon him misprision of treason at least, -and, at any rate, his evidence will pull down this -unprincipled and impudent Federal bull-dog, -and add another proof that the most clamorous -defenders of Burr are all his accomplices.” -And again he writes to Hay, after discussing at<span class="pagenum"><a id="Page_56">56</a></span> -length the intimation in the decision of the -Chief Justice that even the bodily presence of -the President might be compelled by the court, -which proposition he indignantly denied, “that -the leading feature of our Constitution is the -independence of the legislative, executive and -judiciary of each other; and none are more jealous -of this than the judiciary. But would the -executive be independent of the judiciary if he -were subject to the commands of the latter, and -to imprisonment for disobedience, if the smaller -courts could bandy him from pillar to post, keep -him constantly trudging from North to South -and East and West and withdraw him entirely -from his executive duties?”</p> - -<p>The law and reasoning of the decision of the -Chief Justice were convincing. Jefferson knew -that under the Constitution the President had -no superior right to those of any other citizen, -and, while directing substantially all papers required -by the subpœna <i xml:lang="la" lang="la">duces tecum</i> to be furnished, -he refused to appear in person in court. -He openly defied the process of the court. He -intimated that if the court attempted to enforce -its writ he would meet force with force. The<span class="pagenum"><a id="Page_57">57</a></span> -Chief Justice realized what this meant, and the -matter was quietly dropped.</p> - -<p>On Saturday, June 13th, twenty-two days -after the court had convened, General Wilkinson -arrived in the city of Richmond, and on the -following Monday he was sworn and sent to the -grand jury, with a notification that it would -facilitate their inquiries if they would examine -him immediately.</p> - -<p>Wilkinson was at the head of the army and -Governor of the territory of Louisiana, to which -latter office he had been appointed about the -close of the session of Congress that Burr as -Vice-President presided over the Senate. Between -him and Burr a long friendship had existed. -They had been fellow soldiers in the -War of the Revolution—had shared together -the hardships of the winter of 1775–6, and the -perils of the unsuccessful attack on the city of -Quebec. While it was true they had seen very -little of each other since the war they had at -intervals, and only a short time before the arrest -of Burr, corresponded confidentially and -in cipher. He was undoubtedly in the secrets -of Burr, until he saw the impending explosion,<span class="pagenum"><a id="Page_58">58</a></span> -and then he became active in exposing the plot -and bringing Burr to trial. Certain it is that -Burr regarded him as an associate and denounced -his treachery.</p> - -<p>The meeting between Burr and his former -friend Wilkinson was dramatic, and is graphically -described by Washington Irving.</p> - -<p>“Burr,” says Irving, “was seated with his back to the entrance, facing -the judges, and conversing with one of his counsel when Wilkinson -strutted into the court and took a stand in a parallel line with Burr -on his right hand. Here he stood for a moment swelling like a turkey -cock, and bracing himself up for the encounter of Burr’s eyes. The -latter did not take any notice of him until the Judge directed the -clerk to swear General Wilkinson; at the mention of the name Burr -turned his head, looked him full in the face with one of his piercing -regards, swept his eye over his whole person from head to foot, as if -to scan its dimensions and then cooly resumed his former position, and -went on conversing with his counsel as tranquilly as ever. The whole look -was over in an instant, but it was an admirable one. There was no -appearance<span class="pagenum"><a id="Page_59">59</a></span> -of study or constraint in it; no affectation -of disdain or defiance; a slight expression -of contempt played over his countenance, such -as you would show on regarding any person to -whom you were indifferent, but whom you considered -mean and contemptible.”</p> - -<p>The examination of witnesses by the grand -jury continued from day to day until June 24th, -when in the midst of an argument by Mr. Botts -for an attachment against General Wilkinson -for endeavoring to prevent the free course of -testimony, the grand jury entered the courtroom, -and speaking through its distinguished -foreman, stated that they had agreed upon several -indictments, which he handed to the clerk -of the court. The clerk then read the following -endorsements thereon:</p> - -<p>“An indictment against Aaron Burr for -treason—a true bill.”</p> - -<p>“An indictment against Aaron Burr for -a misdemeanor—a true bill.”</p> - -<p>“An indictment against Herman Blannerhassett -for treason—a true bill.”</p> - -<p>“An indictment against Herman Blannerhassett -for a misdemeanor—a true bill.”</p> - -<p><span class="pagenum"><a id="Page_60">60</a></span> -The grand jury then adjourned until the next -day, and at the conclusion of Mr. Bott’s argument -on the motion for attachment, Colonel -Burr with his wonted serene and placid air -arose and stated to the court, that as true bills -had been found against him, it was probable, the -United States Attorney would move for his commitment; -he would, however, suggest two ideas -for the consideration of the court. “One was -that it was within their discretion to bail in -certain cases, even when the punishment was -death; and the other was, that it was expedient -for the court to exercise their discretion in this -instance, as he should prove, that the indictment -against him had been obtained by perjury.”</p> - -<p>Mr. Hay moved for his commitment. He -stated that if the court had the power to bail, -it was only to be exercised according to their -sound discretion. After much time had been -spent in debate, the Chief Justice observed that -“he was under the necessity of committing -Colonel Burr.” He was accordingly committed -to the custody of the Marshal, and conducted to<span class="pagenum"><a id="Page_61">61</a></span> -the city jail, for the County of Henrico and the -City of Richmond; but two days later on the -affidavit of his counsel, who had visited him in -his confinement, that the miserable state of the -prison would endanger his health, and that it -was so arranged as to deprive him of consultation -with his counsel, and upon the further report -of the Surveyor of the Public Buildings of -the United States, the court entered the following -order:</p> - -<p>“Whereupon, it is ordered, that the Marshal -of this district, do cause the front room of the -house now occupied by Luther Martin, Esq., -which room has been and is used as a dining -room, to be prepared for the reception and safe-keeping -of Colonel Aaron Burr, by securing the -shutters to the windows of the said room by -bars, and the door by a strong bar or pad-lock. -And that he employ a guard of seven men to be -placed on the floor of the adjoining unfinished -house, and on the same story with the before -described front room, and also, at the door opening -into the said front room; and upon the Marshal’s -reporting to the court that the said room<span class="pagenum"><a id="Page_62">62</a></span> -has been so fitted up, and the guard employed, -that then the said Marshal be directed, and he -is hereby directed, to remove to the said room, -the body of the said Aaron Burr from the public -gaol, there to be by him safely kept.”</p> - -<p>This building now known as Blair’s Drug -Store, still stands at the corner of Ninth and -Broad Streets, in the City of Richmond, Virginia.</p> - -<p>The grand jury had on the day previous -brought in indictments for treason against Ex-Senator -Jonathan Dayton of New Jersey, Ex-Senator -John Smith of Ohio, Comfort Tyler and -Israel Smith of New York; and Davis Floyd of -the territory of Indiana. This completed their -inquiries, and after an appropriate address by -the Chief Justice in which he complimented -them upon the great patience and cheerful attention -with which they had performed the arduous -and laborious duties in which they had -been so long engaged, discharged them from -further attendance on the court.</p> - -<p>After some discussion as to procedure, the -clerk of the court read the indictment against -Burr, for treason against the United States,<span class="pagenum"><a id="Page_63">63</a></span> -which with the endorsements thereon (exclusive -of the verdict of the trial jury), is as follows:</p> - -<blockquote class="newpage"> - -<p class="p1 in0 large">“VIRGINIA DISTRICT:</p> - -<p class="large">“IN THE CIRCUIT COURT OF THE<br /> -UNITED STATES OF AMERICA, IN AND<br /> -FOR THE FIFTH CIRCUIT AND VIRGINIA<br /> -DISTRICT:</p> - -<p class="p1">“The grand inquest of the United States of -America, for the Virginia district, upon their -oath do present that Aaron Burr, late of the -city of New York, and State of New York, Attorney -at Law, being an inhabitant of and residing -within the United States, and under the -protection of the laws of the United States, and -owing allegiance and fidelity to the same United -States, not having the fear of God before his -eyes, nor weighing the duty of his said allegiance, -but being moved and seduced by the instigation -of the devil, wickedly devising and -intending the peace and tranquillity of the said -United States to disturb and to stir, move and -excite insurrection, rebellion and war against -the said United States, on the tenth day of December<span class="pagenum"><a id="Page_64">64</a></span> -in the year of Christ one thousand eight -hundred and six at a certain place called and -known by the name of Blannerhassett’s Island, -in the county of Wood and District of Virginia -aforesaid, and within the jurisdiction of this -Court, with force and arms unlawfully, falsely, -maliciously and traitorously did compass, imagine -and intend to raise and levy war, insurrection -and rebellion against the said United -States; and in order to fulfil and bring to effect -the said traitorous compassings, imaginations -and intentions of him, the said Aaron Burr, he, -the said Aaron Burr, afterwards, to wit, on the -said tenth day of December in the year one -thousand eight hundred and six aforesaid, at -the said island, called Blannerhassett’s Island -as aforesaid, in the County of Wood aforesaid -in the District of Virginia aforesaid and within -the jurisdiction of this Court, with a great multitude -of persons whose names at present are -unknown to the grand inquest aforesaid, to a -great number, to wit, to the number of thirty -persons and upwards, armed and arrayed in a -warlike manner, that is to say, with guns,<span class="pagenum"><a id="Page_65">65</a></span> -swords, and dirks and other warlike weapons -as well offensive as defensive, being then and -there unlawfully, maliciously and traitorously -assembled and gathered together, did falsely -and traitorously assemble and join themselves -together against the said United States, and -then and there with force and arms did falsely -and traitorously, and in warlike and hostile -manner, array and dispose themselves against -the said United States, and then and there that -is to say on the day and in the year aforesaid -at the island aforesaid commonly called Blannerhassett’s -Island in the County aforesaid of -Wood, within the Virginia district, and the jurisdiction -of this Court, in pursuance of such their -traitorous intentions and purposes, aforesaid, -he the said Aaron Burr with the said persons -so as aforesaid traitorously assembled and -armed and arrayed in manner aforesaid, most -wickedly, maliciously and traitorously did ordain, -prepare and levy war against the said -United States, contrary to the duty of their -said allegiance and fidelity, against the Constitution, -peace and dignity of the said United<span class="pagenum"><a id="Page_66">66</a></span> -States, and against the form of the Act of Congress -of the said United States, in such case -made and provided:</p> - -<p>“And the grand inquest of the United States -of America for the Virginia district upon their -oaths aforesaid do further present, that the said -Aaron Burr, late of the City of New York, and -State of New York, attorney at law, being an -inhabitant of and residing within the United -States and under the protection of the laws of -the United States, and owing allegiance and -fidelity to the same United States, not having -the fear of God before his eyes, nor -weighing the duty of his said allegiance, -but being moved and seduced by the instigation -of the devil, wickedly devising and intending -the peace and tranquillity of the -United States to disturb, and to stir, move, and -excite insurrection, rebellion and war against -the said United States, on the eleventh day of -December in the year of our Lord one thousand -eight hundred and six, at a certain place, called -and known by the name of Blannerhassett’s -Island in the County of Wood and District of -Virginia aforesaid and within the jurisdiction<span class="pagenum"><a id="Page_67">67</a></span> -of this court, with force and arms, unlawfully, -falsely, maliciously and traitorously did compass, -imagine and intend to raise and levy war, -insurrection and rebellion against the said -United States, and in order to fulfil and bring -to effect the said traitorous compassings, imaginations -and intentions of him the said Aaron -Burr, he, the said Aaron Burr, afterwards, to -wit, on the said last mentioned day of December -in the year one thousand eight hundred and six -aforesaid, at a certain place commonly called -and known by the name of Blannerhassett’s -Island in the said County of Wood, in the District -of Virginia aforesaid, and within the jurisdiction -of this court, with one other great multitude -of persons, whose names at present are -unknown to the grand inquest aforesaid, to a -great number, to wit, to the number of thirty -persons and upwards, armed and arrayed in a -warlike manner, that is to say, with guns, -swords and dirks, and other warlike weapons -as well offensive as defensive being then and -there unlawfully, maliciously and traitorously -assembled and gathered together, did falsely -and traitorously assemble and join themselves<span class="pagenum"><a id="Page_68">68</a></span> -together against the said United States, and -then and there with force and arms did falsely -and traitorously and in a warlike and hostile -manner, array and dispose themselves against -the said United States, and then and there, that -is to say, on the day and in the year last mentioned, -at the island aforesaid in the County of -Wood aforesaid, in the Virginia district, and -within the jurisdiction of this Court, in pursuance -of such their traitorous intentions, and -purposes aforesaid, he the said Aaron Burr -with the said persons so as aforesaid traitorously -assembled and armed and arrayed in manner -aforesaid, most wickedly, maliciously and -traitorously did ordain, prepare and levy war -against the said United States, and further to -fulfil and carry into effect the said traitorous -compassings, imaginations and intentions of the -said Aaron Burr against the said United States, -and to carry on the war thus levied as aforesaid -against the said United States, the said -Aaron Burr with the multitude last mentioned -at the island aforesaid, in the said -County of Wood, within the Virginia district -aforesaid and within the jurisdiction of this<span class="pagenum"><a id="Page_69">69</a></span> -court, did array themselves in a warlike manner, -with guns and other weapons offensive and defensive, -and did proceed from the said island -down the river Ohio, in the County aforesaid -within the Virginia district, and within the jurisdiction -of this Court, on the said eleventh day -of December in the year one thousand eight -hundred and six aforesaid, with the wicked and -traitorous intention to descend the said river -and the river Mississippi and by force and arms -traitorously to take possession of a City commonly -called New Orleans in the territory of -Orleans belonging to the United States; contrary -to the duty of their said allegiance and -fidelity, against the Constitution, peace and dignity -of the said United States and against the -form of the Act of the Congress of the United -States in such case made and provided.</p> - -<p class="p1 center large">HAY.</p> - -<p class="center">Attorney of the United States for the Virginia -District.</p> - -<p class="in0">“Witness in behalf of the United States.</p> -<p class="in0"> 1. Thomas Truxton<br /> - 2. Stephen Decatur<br /> - 3. Benjamin Stoddert<br /> - 4. William Eaton<br /> - 5. William Duane<br /> - 6. Erick Bollman<br /> - 7. Peter Taylor<span class="pagenum"><a id="Page_70">70</a></span><br /> - 8. Jacob Allbright<br /> - 9. Charles Willie<br /> -10. John Graham<br /> -11. Saml. Swartout<br /> -12. Julien Dupeistre<br /> -13. <span class="in2">Prevost</span><br /> -14. James Miller<br /> -15. Saml. Kouten<br /> -16. George Morgan<br /> -17. John Morgan<br /> -18. Thomas Morgan<br /> -19. Nicholas Perkins<br /> -20. Robert Spence<br /> -21. George Harris<br /> -22. Cyrus Jones<br /> -23. Thomas Peterkin<br /> -24. Elias Glover<br /> -25. Simeon Poole<br /> -26. Dudley Woodbridge<br /> -27. David C. Wallace<br /> -28. Edward W. Tupper<br /> -29. Edmund B. Dana<br /> -30. James Read<br /> -31. John G. Henderson<br /> -32. Alex. Henderson<br /> -34. Ambrose Smith<br /> -35. Hugh Phelps<br /> -36. Gen. Wilkinson<br /> -37. <span class="in2">Dunbaugh</span><br /> -38. Charles Lindsay<br /> -39. John Manhatton<br /> -40. James Knox<br /> -41. William Love<br /> -42. David Fisk<br /> -43. Thomas Heartly<br /> -44. Stephen S. Welch<br /> -45. James Kenney<br /> -46. Samuel Moxley<br /> -47. Edw. P. Gaines<br /> -48. A. D. Smith.” -</p> - -<div class="intact"> -<p class="p1 center large"><i>ENDORSED</i>:</p> - -<p class="p1 in0 larger"> -“United States<br /> -<span class="in2">vs.</span><br /> -Aaron Burr.<br /> -<span class="in1">Indictment for Treason.</span></p> -<p class="in0 larger vspace"><span class="in7">A true Bill.</span><br /> -<span class="in10">John Randolph.”</span> -</p> -</div></blockquote> - -<div id="i_70" class="figcenter p4" style="max-width: 21.4375em;"> - <img src="images/i_081.jpg" width="343" height="800" alt="" /> - <div class="caption">FINDINGS OF THE GRAND AND PETIT JURIES</div> - <div class="captionl"><i>Facing p. 70</i></div></div> - -<p><span class="pagenum"><a id="Page_71">71</a></span> -At the conclusion of the reading of the indictment, -Mr. Burr addressed the court as follows:</p> - -<p>“I acknowledge myself to be the person -named in the indictment: I plead <em>not guilty</em>; -and put myself upon my country for trial.”</p> - -<p>The indictment, as will be observed, specifies -the place of the overt act to be at Blannerhassett -Island, and the time the 10th day of December, -1806.</p> - -<p>The court, when the plea was in, made an -order for a venire of forty-eight jurors, twelve -of whom, at least, were to be summoned from -Wood County and on the following day, June -27th, the court ordered the <i xml:lang="la" lang="la">venire facias</i> to issue -to the marshal, returnable on the 3rd day of -August and fixed that day for the trial.</p> - -<p>Three days later Burr was, on motion of the -United States attorney, removed from his lodging -at the corner of Ninth and Broad Streets, -and, with the approval of the Governor of Virginia, -placed in the third story of the penitentiary, -therein to be confined, until the 2nd day -of August.</p> - -<p>The court pursuant to adjournment met -promptly at 12 o’clock, Monday, August 3rd, in<span class="pagenum"><a id="Page_72">72</a></span> -the House of Delegates, with Chief Justice Marshal -presiding. Judge Griffin, the District -Judge, who had heretofore set in the case, did -not appear until the following Friday.</p> - -<p>George Hay, William Wirt and Alexander -MacRae appeared as counsel for the prosecution, -and Edmund Randolph, John Wickham, -Benjamin Botts, John Baker and Luther Martin -for the prisoner. Mr. Charles Lee appeared -about two weeks later.</p> - -<p>The court room was crowded with an immense -throng of citizens, when Burr, accompanied -by his son-in-law, Governor Alston, of -South Carolina, and exhibiting his usual serenity -and self-possession, entered. The names -of the jurors were promptly called, and shortly -thereafter the court adjourned until the following -Wednesday, to give counsel for the defense -time to examine the list of the jurors summoned.</p> - -<p>The court met pursuant to adjournment, and -for twelve days was engaged in the selection of -a jury for the trial of the case. Of the original -venire of forty-eight, only four, Richard E. -Parker, David Lambert, Hugh Mercer, and<span class="pagenum"><a id="Page_73">73</a></span> -Edward Carrington were elected, and, of the -second venire for a like number, eight were -accepted as competent jurors, namely, Christopher -Anthony, James Sheppard, Reuben -Blakey, Miles Bottes, Henry C. Coleman, Benjamin -Graves, John M. Sheppard, and Richard -Curd.</p> - -<p>The jury now being elected and sworn, the -prisoner was directed to stand up. The clerk -read the indictment for treason against him, -and, at the conclusion of the reading, addressed -the jury in the usual form. The case was then -opened for the prosecution by Mr. Hay, it being -agreed that he should fully present the side of -the government, and immediately thereafter -proceed with his evidence.</p> - -<p>Mr. Hay dwelt at great length on the crime -of treason.</p> - -<p>“In Great Britain,” he said, “there are no -less than ten different species of treason; at -least that was the number when Blakstone -wrote, and it is possible that the number may -have been increased since. But in this country, -where the principle is established in the -Constitution, there are only two descriptions of<span class="pagenum"><a id="Page_74">74</a></span> -treason; and the number being fixed in the -Constitution itself, can never be increased by -the legislature, however important and necessary -it should be, in their opinion, that the -number should be augmented. By the third -section, article 3 of the Constitution of the -United States, ‘treason against the United -States shall consist only in levying war against -them, or in adhering to their enemies; giving -them aid and comfort.’ With respect to the -latter description, there is no occasion to say -anything, as the offense charged in the indictment -is ‘levying war against the United States’; -but it adds that ‘<em>no person shall be convicted -of treason, unless on the testimony of two witnesses -to the same overt act, or on confession -in open court</em>.’”</p> - -<p>The first witness called was General Eaton. -Colonel Burr objected to the order of the testimony. -He said Mr. Hay had not stated the nature -of the witness’ testimony; but he presumed -that it related to certain conversations said -to have happened at Washington. He contended -that no such evidence as that, which -tended only to show intentions or designs, was<span class="pagenum"><a id="Page_75">75</a></span> -admissible until an <em>overt</em> act of treason had -been proved. This question was ably argued -by counsel on both sides.</p> - -<p>The next day the Chief Justice decided that -so far as the testimony of General Eaton “relates -to the fact charged in the indictment, so -far as it relates to levying war on Blannerhassett’s -Island, so far as it relates to a design -to seize on New Orleans, or to separate by force, -the Western from the Atlantic states, it is -deemed relevant and is now admissible: so far -as it respects other plans to be executed in the -City of Washington, or elsewhere, if it indicate -a treasonable design, it is a design to commit -a distinct act of treason, and is therefore not -relevant to the present indictment. It can -only, by showing a general evil intention, render -it more probable that the intention in the particular -case was evil. It is merely additional -or corroborative testimony, and therefore, if -admissible at any time, it is only admissible according -to the rules and principles which the -court must respect, after hearing that which it -is to confirm.”</p> - -<p>General Eaton was then called to the stand<span class="pagenum"><a id="Page_76">76</a></span> -and examined. He stated in the beginning that -he knew nothing of any overt act of treason on -the part of Burr, or of any of the happenings -on Blannerhassett’s Island; but that he knew -much concerning Burr’s expressions of treasonable -intentions.</p> - -<p>The next witnesses called to prove treasonable -designs were Commodore Truxton, Peter -Taylor, Blannerhassett’s gardener, and Colonel -Morgan and his two sons.</p> - -<p>The prosecution now took up the testimony to -establish the <em>overt</em> act and called to the stand -Jacob Allbright, Peter Taylor, William Love, -Maurice P. Belknap and Edmund B. Dana. -These witnesses proved the assemblage of men, -some thirty or more, on Blannerhassett’s Island, -December 10th, 1806, armed with rifles -and pistols, the pretended purpose of which -was to descend the Ohio River to the City of -New Orleans, and make it the base of operations -in an expedition to Mexico; but failed to -prove the act of levying war.</p> - -<p>It was not proved that Burr was present on -the Island when the assemblage of the men took -place.</p> - -<p><span class="pagenum"><a id="Page_77">77</a></span> -The only witness, who gave any direct testimony -on the overt act sought to be proved was -Allbright, and he was discredited on cross-examination. -He testified on the night of the -flight from the Island that “a man by the name -of Tupper (meaning General Tupper), laid his -hands upon Blannerhassett, and said: ‘Your -body is in my hands, in the name of the Commonwealth.’ -Some such words as that he mentioned. -When Tupper made that motion, -there were seven or eight muskets leveled at -him. Tupper looked about him and said ‘Gentlemen, -I hope you will not do the like.’ One -of the gentlemen who was nearest about two -yards off said ‘I’d as leave as not.’ Tupper -then changed his speech, and said he wished -him to escape safe down the river, and wished -him luck.”</p> - -<p>At the conclusion of the evidence relating -directly to the overt act charged in the indictment, -counsel for the prosecution attempted to -introduce collateral testimony of acts beyond -the limits of the jurisdiction of the court; but -Colonel Burr and his counsel strenuously objected -to such testimony as wholly irrelevant<span class="pagenum"><a id="Page_78">78</a></span> -and inadmissible, and moved the court to arrest -the evidence on the ground that the United -States had failed to prove an overt act, constituting -treason, under the Constitution of the -United States.</p> - -<p>The argument on this motion, which was so -vital to the further prosecution of the case commenced -on the 20th of August, and continued -until the 29th of that month, and was “doubtless,” -says Parton, “the finest display of legal -knowledge and ability of which the history of -the American bar can boast.”</p> - -<p>Mr. Wickham opened the debate and was -followed by Randolph, Wirt, Botts, MacRae, -Hay and Lee. Mr. Martin concluded. It fills -one volume of Mr. Robertson’s report of the -case, and it would be vain to attempt in this -brief review to give anything like a satisfactory -account of it. Some of the reasons urged -in support of the motion were: that Burr, not -being present on Blannerhassett’s Island, was -merely an accessory, and not a principal; that -if he was a principal he was a principal only in -the second degree, where guilt is merely derivative, -and that therefore no parole evidence<span class="pagenum"><a id="Page_79">79</a></span> -could be admitted against him, until a record -was produced of the conviction of the offenders -in the first degree; that the facts must be -proved as laid in the indictment, and evidence -proving the accused to have been absent at the -time of the overt acts is inadmissible to support -an indictment charging him with the commission -of that act; that no parole evidence -could be given to connect the prisoner with the -men assembled on Blannerhassett’s Island, -until an act of treason on the part of these men -was proved; and that the assemblage there was -not an act of treason; that until the fact of a -crime is proved no evidence should be heard -respecting the guilty intentions of the accused.</p> - -<p>On Monday, August 31st the Chief Justice -rendered his decision. He read it with great -care and consumed three hours in doing so.</p> - -<p>“The question now to be decided,” he began, -“has been argued in a manner worthy of its importance, -and with an earnestness evincing the -strong conviction felt by the counsel on each -side that the law is with them.</p> - -<p>“A degree of eloquence seldom displaced on -any occasion has embellished a solidity of argument,<span class="pagenum"><a id="Page_80">80</a></span> -and a depth of research by which the -court has been greatly aided in forming the -opinion it is about to deliver.</p> - -<p>“The testimony adduced on the part of the -United States to prove the overt act laid in the -indictment having shown, and the attorney for -the United States having admitted, that the -prisoner was not present when that act, whatever -may be its character, was committed, and -there being no reason to doubt but that he was -at a great distance and in a different state, it is -objected to the testimony offered on the part of -the United States, to connect him with those -who committed the overt act, that such testimony -is totally irrelevant and must therefore -be rejected.</p> - -<p>“The arguments in support of this motion -respect in part the merits of the case as it may -be supposed to stand independent of the pleadings, -and in part as exhibited by the pleadings.</p> - -<p>“On the first division of the subject two -points are made:</p> - -<p>“1st. That conformably to the constitution -of the United States, no man can be convicted<span class="pagenum"><a id="Page_81">81</a></span> -of treason who was not present when the war -was levied.</p> - -<p>“2d. That if this construction be erroneous, -no testimony can be received to charge one man -with the overt acts of others until those overt -acts, as laid in the indictment, be proved to the -satisfaction of the court.</p> - -<p>“The question which arises on the construction -of the constitution, in every point of view -in which it can be contemplated, is of infinite -moment to the people of this country and to -their government, and requires the most temperate -and the most deliberate consideration.</p> - -<p>“Treason against the United States shall -consist only in levying war against them.”</p> - -<p>The Chief Justice then proceeds to elaborately -discuss an overt act of levying war. The -opinion delivered by the Supreme Court in the -case of Bollman and Swartout was declared by -him to be not correctly understood; and that -there must be, before an overt act of treason -is completed, either the actual employment of -force or a military assemblage of men, who -are in a posture of war.</p> - -<p><span class="pagenum"><a id="Page_82">82</a></span> -In conclusion the Chief Justice said:</p> - -<p>“The law of the case being thus far settled; -what ought to be the decision of the court on -the present motion? Ought the court to sit -and hear testimony which cannot affect the -prisoner? or ought the court to arrest that -testimony? On this question much has been -said: much that may perhaps be ascribed to a -misconception of the point really under consideration. -The motion has been treated as a -motion confessedly made to stop relevant testimony; -and, in the course of the argument, it -has been repeatedly stated, by those who oppose -the motion, that irrelevant testimony may -and ought to be stopped. That this statement -is perfectly correct is one of those fundamental -principles in judicial proceedings which is acknowledged -by all, and is founded in the absolute -necessity of the thing. No person will contend -that, in a civil or criminal case, either party is -at liberty to introduce what testimony he -pleases, legal or illegal, and to consume the -whole term in details of facts unconnected with -the particular case. Some tribunal then must -decide on the admissibility of testimony. The<span class="pagenum"><a id="Page_83">83</a></span> -parties cannot constitute this tribunal; for they -do not agree. The jury cannot constitute it; -for the question is whether they shall hear the -testimony or not. Who then but the court can -constitute it? It is of necessity the peculiar -province of the court to judge of the admissibility -of testimony. If the court admit improper -or reject proper testimony, it is an -error of judgment; but it is an error committed -in the direct exercise of their judicial functions.</p> - -<p>“The present indictment charges the prisoner -with levying war against the United -States, and alleges an overt act of levying war. -That overt act must be proved, according to -the mandates of the constitution and of the act -of congress, by two witnesses. It is not proved -by a single witness. The presence of the accused -has been stated to be an essential component -part of the overt act in this indictment, -unless the common law principle respecting accessories -should render it unnecessary; and -there is not only no witness who has proved -his actual or legal presence, but the fact of his -absence is not controverted. The counsel for<span class="pagenum"><a id="Page_84">84</a></span> -the prosecution offer to give in evidence subsequent -transactions at a different place and in -a different state, in order to prove—what? the -overt act laid in the indictment? that the prisoner -was one of those who assembled at Blannerhassett’s -Island? No: that is not alleged. -It is well known that such testimony is not competent -to establish such a fact. The constitution -and law require that the fact should be -established by two witnesses; not by the establishment -of other facts from which the jury -might reason to this fact. The testimony then -is not relevant. If it can be introduced, it is -only in the character of corroboratives or confirmatory -testimony, after the overt act has -been proved by two witnesses in such manner -that the question of fact ought to be left with -the jury. The conclusion, that in this state of -things no testimony can be admissible, is so -inevitable that the counsel for the United -States could not resist it. I do not understand -them to deny, that, if the overt act be not -proved by two witnesses so as to be submitted -to the jury, all other testimony must be irrelevant; -because no other testimony can prove<span class="pagenum"><a id="Page_85">85</a></span> -the act. Now, an assemblage on Blannerhassett’s -Island is proved by the requisite number -of witnesses; and the court might submit it to -the jury whether that assemblage amounted to -a levying of war; but the presence of the accused -at that assemblage being nowhere alleged -except in the indictment, the overt act is -not proved by a single witness; and of consequence -all other testimony must be irrelevant.</p> - -<p>“The only difference between this motion as -made, and the one in the form which the counsel -for the United States would admit to be -regular, is this: it is now general for the rejection -of all testimony. It might be particular -with respect to each witness as adduced. But -can this be wished? or can it be deemed necessary? -If enough be proved to show that the -indictment cannot be supported, and that no -testimony, unless it be of that description which -the attorney for the United States declares -himself not to possess, can be relevant, why -should a question be taken on each witness?</p> - -<p>“Much has been said in the course of the -argument on points on which the court feels<span class="pagenum"><a id="Page_86">86</a></span> -no inclination to comment particularly; but -which may, perhaps, not improperly, receive -some notice.</p> - -<p>“That this court dares not usurp power is -most true.</p> - -<p>“That this court dares not shrink from its -duty is not less true.</p> - -<p>“No man is desirous of placing himself in a -disagreeable situation. No man is desirous of -becoming the peculiar subject of calumny. No -man, might he let the bitter cup pass from him -without self reproach, would drain it to the -bottom. But if he have no choice in the case, -if there be no alternative presented to him but -a dereliction of duty or the opprobrium of those -who are denominated the world, he merits the -contempt as well as the indignation of his country -who can hesitate which to embrace.</p> - -<p>“That gentlemen, in a case the most interesting, -in the zeal with which they advocate particular -opinions, and under the conviction, in -some measure produced by that zeal, should -on each side press their arguments too far, -should be impatient at any deliberation in the -court, and should suspect or fear the operation<span class="pagenum"><a id="Page_87">87</a></span> -of motives to which alone they can ascribe that -deliberation, is perhaps a frailty incident to -human nature; but if any conduct on the part -of the court could warrant a sentiment that it -would deviate to the one side or the other from -the line prescribed by duty and by law, that -conduct would be viewed by the judges themselves -with an eye of extreme severity, and -would long be recollected with deep and serious -regret.</p> - -<p>“The arguments on both sides have been -intently and deliberately considered. Those -which could not be noticed, since to notice every -argument and authority would swell this opinion -to a volume, have not been disregarded. -The result of the whole is a conviction, as complete -as the mind of the court is capable of receiving -on a complex subject, that the motion -must prevail.</p> - -<p>“No testimony relative to the conduct or -declarations of the prisoner elsewhere and subsequent -to the transaction on Blannerhassett’s -Island can be admitted; because such testimony, -being in its nature merely corroborative -and incompetent to prove the overt act in itself,<span class="pagenum"><a id="Page_88">88</a></span> -is irrelevant until there be proof of the overt -act by two witnesses.</p> - -<p>“This opinion does not comprehend the proof -by two witnesses that the meeting on Blannerhassett’s -Island was procured by the prisoner. -On that point the court for the present withholds -its opinion for reasons which have been -already assigned; and as it is understood from -the statements made on the part of the prosecution -that no such testimony exists. If there be -such let it be offered; and the court will decide -upon it. The jury have now heard the opinion -of the court on the law of the case. They will -apply that law to the facts, and will find a verdict -of guilty or not guilty as their own consciences -may direct.”</p> - -<p>The next morning Mr. Hay, after counsel for -the prosecution had given serious consideration -to the opinion of the court, stated that he -had neither argument nor evidence to offer to -the jury. The jury then retired and after an -absence of twenty-five minutes, reported to the -court through their foreman, Colonel Carrington, -the following verdict endorsed on the indictment:</p> - -<p><span class="pagenum"><a id="Page_89">89</a></span> -“We of the jury find that Aaron Burr is not -proved to be guilty under the indictment by -any evidence submitted to us. We therefore -find him not guilty.”</p> - -<p>Colonel Burr and his counsel objected to entering -this form of the verdict on the record. -The court at length decided that the verdict -should remain on the indictment as found by -the jury, and that the record of the proceedings -of the court should show simply a verdict of -“not guilty.” The following day Burr was released -from prison on bail.</p> - -<p>The trial was now begun on the indictment -for high misdemeanor against him, for having -set on foot a military expedition against the -territory of a foreign prince, to-wit, the -Province of Mexico, which was within the empire -of the King of Spain, who was at peace -with the United States. The trial lasted until -the latter part of October when Burr was acquitted.</p> - -<p class="p2 center"><span class="smaller wspace">THE END</span></p> -</div> - -<div class="chapter"><div class="transnote"> -<h2 class="nobreak p1">Transcriber’s Notes</h2> - -<p>Punctuation and spelling were made consistent when a predominant -preference was found in this book; otherwise they were not changed.</p> - -<p>Simple typographical errors were corrected; occasional unbalanced -quotation marks retained.</p> - -<p>Ambiguous hyphens at the ends of lines were retained; occurrences -of inconsistent hyphenation have not been changed.</p> - -<p>Most of the illustrations are of handwritten documents, and -some are difficult to read. Their lighting and contrast in this -eBook have been adjusted in an attempt to improve readability. -The most readable versions of these documents may be found in -the HTML version of this eBook at Project Gutenberg.</p> - -<p><a href="#loi">List of Illustrations</a>: “Affidavit of Burr for subœena” -originally was printed as “Affidavit at Burr for subpoena”; -changed here.</p> - -<p>Page 58: Transcriber corrected several lines of transposed text.</p> - -<p>Page <a href="#Page_78">78</a>: “MacRae” originally was printed as “McRae” but was -changed here to match the predominant spelling of the name -elsewhere in this eBook.</p> -</div></div> - - - - - - - - -<pre> - - - - - -End of Project Gutenberg's The Trial of Aaron Burr, by Joseph P. 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