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-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)
-
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-
-
-
-
-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.
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-Simple typographical errors were corrected; occasional unbalanced
-quotation marks retained.
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-Ambiguous hyphens at the ends of lines were retained; occurrences of
-inconsistent hyphenation have not been changed.
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-Most of the illustrations are of handwritten documents, and some are
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-been adjusted in an attempt to improve readability. The most readable
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-eBook at Project Gutenberg.
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-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.
-
-
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