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