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THE TRIAL OF AARON BURR
[Illustration]
[Illustration: CHIEF JUSTICE MARSHALL
_Frontispiece_
]
THE TRIAL
OF AARON BURR
BY
JOSEPH P. BRADY
_Clerk of the United States District Court for the
Eastern District of Virginia_
[Illustration]
NEW YORK
THE NEALE PUBLISHING COMPANY
1913
Copyright, 1913, by
THE NEALE PUBLISHING COMPANY
PREFACE
Among the records of the United States Courts at Richmond, Virginia,
are the original papers in the case of the “United States versus Aaron
Burr, Indictment for Treason.” The tawny fingers of time have dealt
gently with these papers, and although more than a century old they are
still in a good state of preservation.
The story of the trial of Aaron Burr has often been written, and there
is little new that can be added; but these old manuscripts and official
documents, so historic in their character, should at least in some
form survive the ravages of time. It is with this thought in mind, and
with the hope that possibly some fact not already recorded in history
might be disclosed by the original papers, that this brief history is
written.
LIST OF ILLUSTRATIONS
Chief Justice Marshall _Frontispiece_
FACING
PAGE
Warrant for arrest of Burr 20
Affidavit of Burr for subpœna _duces tecum_ for President
Jefferson 40
Subpœna _duces tecum_ for President Jefferson 50
Subpœna _duces tecum_ for President Jefferson (continued) 50
Findings of the Grand and Petit Juries 70
THE TRIAL OF AARON BURR
On the evening of the 26th of March, 1807, Aaron Burr, attended by
a military guard of nine men, under the command of Major Nicholas
Perkins, who had been largely instrumental in his arrest, arrived
in the City of Richmond, Virginia. Immediately upon his arrival he
was lodged in the Eagle Tavern, the leading hostelry of its time in
that city, where he remained confined until March 30th, when he was
delivered to the civil authorities by virtue of a warrant issued by
Chief Justice Marshall.
The preliminary examination of Burr was private. The warrant was
served on him in his apartment by Major Scott, the Marshal of the
Virginia District, who, after informing him of the object of his
visit, conducted him to another room, where he was brought before
the Chief Justice. The few persons present were Cæsar A. Rodney,
Attorney-General of the United States; George Hay, the United States
Attorney for the Virginia District; Edmund Randolph and John Wickham,
counsel for the prisoner; the United States Marshal and his two
deputies; and a few friends of the counsel for Burr.
The evidence introduced on behalf of the prosecution was a copy of the
record in the case of Bollman and Swartout in the Supreme Court of the
United States, which contained the depositions of General Eaton and
General Wilkinson directly connecting Burr with the offense charged
against him. No verbal testimony was heard, except that of Major
Perkins, who told of the arrest of the prisoner and of his conveyance
of him to Richmond.
At the conclusion of the evidence a motion in writing was submitted by
Mr. Hay for the commitment of the accused on two charges, viz:--
First. For a high misdemeanor, in setting on foot, within the United
States, a military expedition against the dominions of the King of
Spain, a foreign prince, with whom the United States, at the time of
the offense, were, and still are, at peace.
Second. For treason in assembling an armed force, with a design to
seize the city of New Orleans, to revolutionize the territory attached
to it, and to separate the western from the Atlantic states.
It soon developed that this motion would cause considerable discussion,
and as previously agreed upon by counsel, with the approval of the
Chief Justice, the further hearing of the case was adjourned to the
House of Delegates in the Capitol, where all subsequent proceedings
were had.
The argument on the motion lasted two days. It was opened by Mr. Hay
for the United States. He was followed by Mr. Wickham and Mr. Randolph
for the accused. Colonel Burr spoke about ten minutes in his own
behalf, and Mr. Rodney, the Attorney-General of the United States,
closed the discussion.
The third day of the trial, the Chief Justice delivered his written
opinion. “On an application of this kind,” says he, “I certainly
should not require that proof which would be necessary to convict the
person to be committed on a trial in chief; nor should I even require
that which should absolutely convince my own mind of the guilt of the
accused; but I ought to require, and I should require, that probable
cause be shown; and I understand probable cause to be a case made out
by proof furnishing good reason to believe that the crime alleged has
been committed by the person charged with having committed it.” The
Chief Justice then reviews the testimony of General Eaton and General
Wilkinson in the Swartout and Bollman case to show how far these
charges are supported by probable cause, and in conclusion delivers
himself as follows: “I shall not therefore insert in the commitment the
charge of high treason, since it will be entirely in the power of the
Attorney-General to prefer an indictment against the prisoner for high
treason should he be furnished with the necessary testimony.”
Burr was now called upon to give bond, and the amount to be required
of him gave rise to much discussion. The Chief Justice stated, “that
he wished it to be neither too large to amount to oppression, nor
too small to defeat the objects of justice.” It had occurred to
him that the sum of ten thousand dollars would perhaps avoid both
these extremes. Mr. Hay earnestly insisted upon a larger amount, but
the amount was fixed at ten thousand. Burr was then bailed for his
appearance at the next term of the Circuit Court of the United States
to convene at Richmond on the 22d of May next, to answer the charge of
high misdemeanor.
Aaron Burr was now at liberty. President Jefferson was enraged at the
result of the first trial. The feeling between the partisans of the
Administration and the Federalists, to which political party Marshall
belonged, was rampant. The friends of Jefferson charged Marshall
with having permitted his political bias and personal dislike of the
President to warp his judgment in favor of Burr throughout the trial,
and Jefferson in one of his letters to Senator Giles, written a few
days after Burr’s first examination at Richmond, refers to the _tricks_
of the judges in hastening the trial so as to clear Burr. It was
evident that Jefferson was to be the real prosecutor of Burr, and had
made up his mind to convict him at whatever cost.
The 22d of May, 1807, the United States Circuit Court for the Virginia
District convened in the House of Delegates in the City of Richmond,
Virginia, with Chief Justice Marshall and Cyrus Griffin, District
Judge, on the bench.
Long before the hour the Court was to meet the hall and the entrances
to the Capitol were thronged with people. Not a few of them were
witnesses and persons summoned as grand jurors, while others were
attracted by the notoriety of the trial. There could be seen John
Randolph, of Roanoke, “the brilliant, eccentric leader of the Quids,”
in the House, and afterwards United States Senator from Virginia;
Andrew Jackson, who was loud in his denunciation of Jefferson and
his administration for “persecuting his innocent friend”; Winfield
Scott, then a young lawyer just admitted to practice; General Eaton,
with a grudge against the Government for its failure to pay his claim
for services and cash advanced while consul in Barbary, and with
whom Burr had talked with great freedom about his plans; Commodore
Truxton, another disgruntled officer of the Government in whom Burr
had confided; Col. Morgan, a valiant old campaigner from the West,
and his two stalwart sons, whose services Burr tried to enlist, but
whom Jefferson credited with giving him the first intimation of Burr’s
designs; John Graham, who had been sent out by the Administration to
the Mississippi territory as its confidential agent to circumvent
Burr and expose the conspiracy; Colonel Dupiester, one of the leading
spirits in the plot and Burr’s trusted friend and ally; Jonathan
Dayton, formerly speaker of the House of Representatives and Ex-Senator
from the State of New Jersey, and John Smith, lately a Senator from
Ohio, both friends of Burr and prominent in the conspiracy with him;
Dr. Erick Bollman, an educated German, who had recently distinguished
himself by a gallant but unsuccessful attempt to rescue Lafayette
from prison in the castle of Olmutz, Austria, and in whom Burr had
confided. Jefferson expected Bollman to give testimony that might
criminate himself, and during the trial sent through District Attorney
Hay a pardon for him, which Bollman indignantly refused to accept. And
thither also came Governor Alston of South Carolina, and his wife, the
beautiful and accomplished Theodosia, the only daughter of Aaron Burr;
who had fled to his side the moment she had heard of his arrest.
The court was formally opened at half past twelve o’clock, and probably
there never was such an array of learning and legal attainments as
was present on that occasion. Foremost and overshadowing all was John
Marshall, the Chief Justice. “Gentlemen of the profession,” said
Parton, “who witnessed the trial, who saw the effective dignity with
which the judge presided over the court, who heard him read those
opinions, so elaborate and right, though necessarily prepared on the
spur of the moment, regarded it as the finest display of judicial skill
and judicial rectitude which they had ever beheld.”
Seated at the bar and appearing in behalf of the United States were
Colonel George Hay, William Wirt and Alexander MacRae.
Colonel Hay was a son-in-law of James Monroe, who was afterwards
President of the United States. He was a lawyer of great industry
and much ability, and bore the laboring oar in the trial. He was a
zealous partisan of Jefferson, and was assisted in the prosecution by
almost daily communications from him. Later he was appointed United
States judge for the Virginia district. Mr. Wirt was present at the
personal request of President Jefferson. He was the most eloquent and
accomplished advocate then at the Richmond bar. There was no one whose
rising to speak “so instantaneously hushed the spectators to silence.”
“A handsome, fortunate, brilliant, high-minded man was William Wirt,”
says Parton, “the toil of whose life it was to achieve those solid
attainments which alone make brilliancy of utterance endurable in a
court of justice.” Mr. MacRae, the third attorney for the government,
was then Lieutenant-Governor of Virginia, and while less able than
his two colleagues, was a lawyer of “respectable ability and a sharp
tongue.”
On the side of the defense were the greatest lawyers of the time.
The best known of them was perhaps Edmund Randolph. Mr. Randolph had
been a delegate to the Continental Congress and to the Philadelphia
Constitutional Convention, Attorney-General and Governor of Virginia,
and Attorney-General and Secretary of State under Washington. He was
a man of great experience and learning. Associated with him from the
day of Burr’s arrival in Richmond was John Wickham, grandfather of
the late General W. C. Wickham and great-grandfather of Hon. Henry
T. Wickham, an eminent member of the present bar of Virginia. Mr.
Wickham was regarded by many as the ablest lawyer at the Virginia
bar. “The qualities,” says Mr. William Wirt in the _British Spy_, “by
which Mr. Wickham strikes the multitude are his ingenuity and his
wit. But those who look more closely into the anatomy of his mind,
disclose many properties of much higher dignity and importance. This
gentleman, in my opinion, unites in himself a greater diversity of
talents and acquirements than any other at the bar in Virginia.”
Another great lawyer of counsel for Burr, and probably the greatest
one of his day, was Luther Martin of Maryland. He and Burr had formed
a friendship about two years before in Washington, when Justice Chase
of the Supreme Court of the United States was impeached by the House
of Representatives and tried by the Senate for abuse of his office in
certain political trials. Burr was then Vice-President of the United
States, and presided over the Senate in that celebrated proceeding,
says a contemporary, “with the dignity and impartiality of an angel,
but with the rigor of a devil.” Martin was the leading counsel for
Justice Chase, and greatly distinguished himself. Conspicuous also
was Benjamin Botts, father of the distinguished John Minor Botts, who
although the youngest man on the side of the defense, had already
become eminent in his profession.
The other counsel for Burr were Charles Lee, an Ex-Attorney-General
of the United States, and a lawyer of much learning; “Jack” Baker,
who was more of a “good fellow” than lawyer; and Washington Irving,
then attracting some attention in the field of letters, who to use his
own words, “went to Richmond on an informal retainer from one of the
friends of Col. Burr,” although, as he said, “his client had little
belief in his legal erudition, and did not look for any approach to a
professional debut, but thought he might in some way or other be of
service with his pen.”
But of the defense _facile princeps_ was Burr himself. He was keenly
alive to every proceeding, and while the burden fell upon others, no
move was made, or point conceded, without his sanction. Mr. Robertson,
the reporter of the trial, says: “Among these stood Aaron Burr, proudly
pre-eminent in point of intelligence to his brethern of the bar, who
had been vice-president of the United States, and now accused of the
highest and darkest crime in the criminal code. Standing before the
Supreme tribunal of his country, and with the eyes of the nation
upon him, he was, in the opinion of many, already condemned. He had
the talent and tact, and the resources of the Government to contend
against, and every faculty of his mind was exerted in his own defense.
The magnitude of the charge, the number of persons involved, the former
high standing and extraordinary fortunes of the accused, had excited an
interest in the community such as never before had been known.”
[Illustration: WARRANT FOR ARREST OF BURR
_Facing p. 20_
]
The Marshal had summoned for service on the grand jury the most
intelligent and representative citizens of the Commonwealth.
Prominent among them was William B. Giles. He had served in both
branches of the Legislature of Virginia; had been Governor of the State
of Virginia; and representative and senator in the Congress of the
United States. Senator Giles was a partisan of Jefferson, a member of
what John Randolph called “the President’s back-stair cabinet.” He was
the leader of the republicans in the Senate, and had been foremost in
the assaults on the “last stronghold of Federalism--the Judiciary.”
When Senator Giles was called on the _voir dire_ he was challenged
personally by Burr. Burr claimed the same right of challenging grand
jurors for favor that he had of challenging petit jurors, and was
sustained in his position by the Chief Justice. His objection to Giles
was that, on occasions in the Senate, he had pronounced his opinion on
certain documents sent to that body by President Jefferson attributing
to Burr treasonable designs, and upon such information advocating the
suspension of the writ of _habeas corpus_. He stated that he could
produce evidence, if necessary, of public utterances of Senator Giles
confirming these views. Senator Giles was stricken from the panel.
Another former United States Senator, and afterwards Governor of
Virginia, summoned as a grand juror, was Wilson Cary Nicholas. He was
a personal enemy of Burr, and when his name was called Burr challenged
him. Colonel Nicholas had served three years in the Senate when Burr
presided over it, and had taken a very decided part in favor of the
election of his successor. He had freely expressed his suspicions, both
in correspondence and publicly, of Colonel Burr’s probable objects in
the west. He was rejected.
Some of the other distinguished citizens of Virginia summoned by the
Marshal, and who served on the grand jury, were Littleton Waller
Tazewell and James Pleasants, both afterwards United States Senators
and Governors of Virginia; Joseph C. Cabell, one of the founders with
Jefferson of the University of Virginia; William Daniel, father of
the late Judge William Daniel of the Court of Appeals of Virginia,
and grandfather of John Warwick Daniel, the lamented senator from
Virginia; and Colonel James Barbour, afterwards Governor of Virginia,
United States Senator, Secretary of War under John Quincy Adams, and
Minister to England.
The general belief in the guilt of the accused was manifested at
the very beginning of the trial. The proclamations and the special
messages of President Jefferson to Congress, and the depositions
of Generals Eaton and Wilkinson had had their effect on the public
mind. A number of citizens summoned for service on the grand jury
frankly admitted they had prejudged the case, and in consequence of
such disqualifications and excuses the original panel was reduced to
fourteen.
The court, being now without a legal grand jury in attendance, directed
the Marshal to summon from the bystanders two additional persons.
The Marshal summoned and returned John Randolph and William Foushee.
Mr. Randolph was named as foreman, but upon being asked to take the
oath, requested to be excused from serving. He had formed an opinion
concerning the nature and tendency of certain transactions imputed to
Mr. Burr. He had a strong prepossession, but thought he could divest
himself of it upon evidence. Mr. Burr observed that he was afraid they
would be unable to find any man without this prepossession. “The rule
is,” said the Chief Justice, “that a man must not only have formed, but
declared an opinion, in order to exclude him from serving on the jury.”
Mr. Randolph replied that he had no recollection of having declared
one, and he was thereupon sworn as foreman.
Dr. Foushee when called to be sworn was found to be disqualified, and
was permitted to withdraw. Colonel James Barbour was called in his
stead and accepted.
The selection of the grand jury having been completed, the grand jury
was duly sworn by the clerk. It was composed of the following citizens:
John Randolph, Foreman, Joseph Eggleston, Joseph C. Cabell, Littleton
W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough,
William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford
Beverly, John Ambler, Thomas Harrison, Alexander Shephard and James
Barbour.
The Chief Justice promptly delivered an appropriate charge to the
grand jury. He dwelt more particularly upon the definition and nature
of treason, and the testimony requisite to prove it. He said in part:
“To you by the Constitution and laws of our country is confided the
important right of accusing those whose offenses shall have rendered
them subject to punishment under the laws of the United States. It
is on you that the fundamental principles on which the stability of
our political institutions and the safety of individuals most greatly
depend. For to little purpose would laws be formed to protect the
innocent of the body politic from crimes of the worst nature if a
misplaced nonentity should control the execution of them. Juries,
gentlemen, as well as judges, should be superior to every temptation,
which hope, fear or compassion, may suggest; who will allow no
influence to balance their love of justice; who will follow no guide
but the laws of their country.
“In outlining to you, gentlemen of the jury, those offenses which are
cognizable in the court, and which may scarcely be noticed by you,
the first on the calendar, as well as the highest known atrocity,
is treason against the United States. With a jealousy peculiar to
themselves the American people have withdrawn the subject from the
power of their legislature, and have declared in their Constitution
that ‘treason against the United States shall consist only in levying
war against them, or in adhering to their enemies, giving them aid and
comfort.’”
After the grand jury had retired Colonel Burr addressed the court
on the propriety of specially instructing them in regard to the
admissibility of certain evidence, which he stated would be laid before
the grand jury by the attorney for the United States. Mr. Hay opposed
this application. He said he could never agree to it, and he trusted
the court also would never sanction such a suggestion; that Colonel
Burr stood before the court on the same footing as any other citizen,
and he hoped the court would not distinguish between his case and that
of any other. The question was postponed for further discussion. The
court then adjourned to the following morning.
The court met the next day and the grand jury also appeared. It became
apparent that nothing effectual could be done until the arrival of
General Wilkinson, the most important witness for the Government. The
grand jury were therefore adjourned from day to day until he put in his
appearance.
Meanwhile Mr. Hay had moved to commit Burr on a charge of high treason
against the United States. On his preliminary examination he was bailed
on the charge of misdemeanor, but said Mr. Hay “there was no evidence
of an overt act. The evidence is different now.”
This motion was discussed at length throughout the day, and provoked
one of the most eloquent debates of the whole trial and revealed the
political passions of the day. Mr. Botts “begged leave to make a few
remarks on this extraordinary application, and the pernicious effects
such an extraordinary measure, if generally practised, would inevitably
produce. The organ particularly appropriated for the consideration
of the evidence which the motion calls for, is the grand jury; and
the motion is to divest the grand jury of the office, which the
Constitution and laws have appropriated to them, and to devolve it
upon the court. The grand juror’s oath is to inquire into all crimes
and misdemeanors committed within the district of the State of which
they are freeholders. Their office is to perform that which the court
is now called upon to perform. To them belongs the exclusive duty of
inquiring and examining into all species of evidence, which may lead
to a conviction of the crimes of which Colonel Burr is now charged;
but there is a great objection to the exercise of this examining and
committing power by a high law officer, who is to preside upon the
trial, when the grand jury, the appropriate tribunal, is in session.”
After Mr. Botts had taken his seat, Mr. Hay in response to an inquiry
by the Chief Justice, as to whether the counsel for the prosecution
intended to open the case more fully, stated, “that he had not intended
to open it more fully; he did not himself entertain the least doubt,
that if there was sufficient proof produced to justify the commitment
of Colonel Burr, the court had completely the right to commit him.”
Mr. Wickham complained because the gentlemen on the other side had
not given them notice of their intended motion. “We come into this
discussion completely off our guard, completely unprepared.” “The fact
is this,” replied Mr. Hay, “Mr. Wilkinson is known to be a material
witness in this prosecution; his arrival in Virginia, might be
announced in this city, before he himself reached it. I do not intend
to say what effect it might produce upon Colonel Burr’s mind; but
certainly Colonel Burr would be able to effect his escape, merely upon
paying the recognizance of his present bail. My only object then was
to keep his person safe, until we could have investigated the charge
of treason; and I really did not know but that if Colonel Burr had
been previously apprised of my motion he might have attempted to avoid
it. But I did not promise to make the communication to the opposite
counsel, because it might have defeated the very end for which it was
intended.”
Mr. Wickham observed, “that the present motion was unprecedented in
a system of criminal jurisprudence, which was upwards of one hundred
years old.” Continuing, Mr. Wickham said: “What, sir, is the tendency
of this application? What is the motion? I have no doubt, the gentlemen
mean to act correctly--I wish to cast no imputation; but the counsel
and the court well know that there are a set of busy people (not I hope
employed by the Government) who, thinking to do right, are laboring to
ruin the reputation of my client. I do not charge the Government with
this attempt; but the thing is actually done. Attempts have been made.
The press from one end of the continent to the other, has been enlisted
on their side to excite prejudice against Colonel Burr. Prejudice? Yes,
they have influenced the public opinion by such representations, and by
persons not passing between the prisoner and his country, but by _ex
parte_ evidence and mutilated statements. Ought not this court to bar
the door as much as possible, against such misrepresentation? to shut
out every effort to excite further prejudice, until the case is decided
by a sworn jury? Not by the floating rumors of the day, but by the
evidence of sworn witnesses?”
In reply to Mr. Botts and Mr. Wickham, Mr. Wirt for the first time
addressed the court:
“Where is the crime,” said Mr. Wirt, “of considering Aaron Burr a
subject to the ordinary operation of the human passions? Towards any
other man, it seems, the attorney would have been justified in using
precautions against alarms and escapes; it is only improper when
applied to this man. Really, sir, I recollect nothing in the history
of his deportment which renders it so very incredible, that Aaron Burr
would fly from a prosecution. But at all events, the attorney is bound
to act on general principles, and to take care that justice be had
against every person accused, by whatever name he may be called, or
by whatever previous reputation he may be distinguished. This motion,
however, it seems, is not legal at this time, because there is a grand
jury in session. The amount of the position is, that though it may be
generally true, that the court possesses the power to hear and commit,
yet, if there be a grand jury, the power of the court is suspended;
and the commitment cannot be had unless in consequence of a presentment
or bill of indictment found by that body. The general power of the
court being admitted, those who rely on this exception, should support
it by authority; and, therefore, the _loud call_ for precedents, which
we have heard from the other side come improperly from that quarter.
We ground this motion in the general power of the court to commit: let
those who say that this general power is destroyed by the presence
of a grand jury show one precedent to countenance this original and
extraordinary motion. I believe, sir, I may safely affirm, that not a
single reported case or dictum can be found, which has the most distant
bearing towards such an idea. Sir, no such dictum or case ought to
exist. It would be unreasonable and destructive of the principles of
justice.
“But, sir, we are told, that the investigation is calculated to
keep alive the public prejudice; and we hear great complaints about
these public prejudices. The country is represented as being filled
with misrepresentations and calumnies against Aaron Burr; the public
indignation, it is said, is already sufficiently excited. This
argument is also inapplicable to our right to make this motion; it
does not affect the legality of our procedure. Sir, if Aaron Burr be
innocent instead of resisting this motion, he ought to hail it with
triumph and exultation. What is it that we propose to introduce? Not
the rumors that are floating through the world, nor the _bulk_ of
the multitude, nor the speculations of newspapers, but the _evidence
of facts_. We propose, that the whole evidence exculpatory as well
as accusative, shall come before you; instead of exciting, this is
the true mode of correcting, prejudices. The world, which it is
said has been misled and influenced by falsehood, will now hear the
truth. Let the truth come out, let us know how much of what we have
heard is false, how much of it is true; how much of what we feel is
prejudice, how much of it is justified by fact. Whoever before heard
of such an apprehension as that which is professed on the other side?
_Prejudice excited by evidence!_ Evidence, sir, is the great corrector
of prejudice. Why then does Aaron Burr shrink from it? It is strange
to me that a man, who complains so much of being, without cause,
illegally seized and transported by a military officer, should be
afraid to confront the evidence; evidence can be promotive only of
truth. I repeat it then, sir, why does he shrink from the evidence? The
gentlemen on the other side can give the answer. On our part we are
ready to produce that evidence.
“The gentleman assures us, that no imputation is meant against the
Government. Oh no, sir; Colonel Burr indeed has been oppressed, has
been persecuted; but far be it from the gentleman to charge the
Government with it. Colonel Burr indeed has been harassed by a military
tyrant, who is ‘the instrument of the Government bound to blind
obedience’; but the gentleman could not by any means be understood
as intending to insinuate aught to the prejudice of the Government.
The gentleman is understood, sir; his object is correctly understood.
He would divert the public attention from Aaron Burr and point it
to another quarter. He would, too, if he could, shift the popular
displeasure, which he has spoken of, from Aaron Burr to another
quarter. These remarks were not intended for your ear, sir; they were
intended for the people who surround us; they can have no effect upon
the mind of the court. I am too well acquainted with the dignity,
the firmness, the illumination of this bench, to apprehend any such
consequence. But the gentlemen would balance the account of popular
prejudices; they would convert the judicial inquiry into a political
question; they would make it a question between Thomas Jefferson and
Aaron Burr. The purpose is well understood, sir; but it shall not
be served. I will not degrade the administration of this country by
entering on their defence. Besides, sir, this is not our business; at
present we have an account to settle, not between Aaron Burr and Thomas
Jefferson, but between Aaron Burr and the laws of his country. Let us
finish his trial first. The administration, too, will be tried before
their country; before the world. They, sir, I believe, will never
shrink, either from the evidence or the verdict.”
Mr. Hay then delivered an elaborate argument in support of his motion
and was followed by Mr. Randolph. Colonel Burr concluded the debate in
a ten minutes’ speech.
“The case is this,” says Colonel Burr: “No man denies the authority of
the court, to commit for a crime; but no commitment ought to be made,
except on probable cause. This authority is necessary; because policy
requires, that there should be some power to bind an accused individual
for his personal appearance, until there shall have been sufficient
time to obtain witnesses for his trial; but this power ought to be
controlled as much as possible.
“The question in the present case, is whether there is probable cause
of guilt; and whether time ought to be allowed to collect testimony
against me. This time ought generally to be limited; but there is no
precise standard on the subject; and much is of course left to the
sound discretion of the court. Two months ago, however, you declared
that there had been time enough to collect the evidence necessary to
commit, on probable cause; and surely, if this argument was good then,
it is still better now.
“As soon as a prosecutor has notice of a crime, he generally looks out
for witnesses. It is his object to obtain probable cause for committing
the accused. Five months ago, a high authority declared that there was
a crime; that I was at the head of it; and it mentioned the very place,
too, where the crime was in a state of preparation. The principal
witness against me, is said to be Mr. Wilkinson. Now, from what period
is the time to be computed? If, from the time I was suspected, five
months; if, from the time when I was seized, three months; or is it
to be only computed from the time when I was committed? So that it is
near forty days since the notice must have arrived at New Orleans. But
a vessel navigates the coast, from New Orleans to Norfolk, in three
weeks. I contend, however, that witnesses ought to be produced, from
the very time when the crimes are said to be committed. There is, then,
no apology for the delay of the prosecution, as far as it respects the
only person for whom an apology is attempted to be made.
“There are other serious objections to my situation. Must I be ready
to proceed to trial? True, sir, but then it must be in their own way.
Are we then on equal terms here? Certainly not. And again, as to
affidavits. The United States can have compulsory process to obtain
them; but I have no such advantage. An _ex parte_ evidence, then, is
brought before this court, on a motion for commitment. The evidence on
one side only is exhibited; but if I had mine also to adduce, it would
probably contradict and counteract the evidence for the United States.
Well, sir, and these affidavits are put into the newspapers, and they
fall into the hands of the grand jury. I have no such means as these,
sir; and where then is the equality between the Government and myself.
“The opinion of the court, too, is to be committed against me. Is this
no evil?
“A sufficient answer, sir, has been given to the argument about my
delay; and its disadvantages to myself have been ably developed. But
my counsel have been charged with declamation against the Government
of the United States. I certainly, sir, shall not be charged with
declamation; but surely it is an established principle, sir, that no
government is so high as to be beyond the reach of criticism; and it
is more particularly laid down, that this vigilance is more peculiarly
necessary, when any government institutes a prosecution: and one reason
is, on account of the vast disproportion of means which exists between
it and the accused. But, if ever there was a case which justified this
vigilance, it is certainly the present one, when the Government has
displayed such uncommon activity. If, then, this Government has been so
peculiarly active against me, it is not improper to make the assertion
here, for the purpose of increasing the circumspection of the court.”
Mr. Burr observed, that he meant by persecution, the harassing of
any individual, contrary to the forms of law; and that his case,
unfortunately, presented too many instances of this description. He
would merely state a few of them. He said that his friends had been
everywhere seized by the military authority; a practice truly consonant
with European despotisms. He said that persons had been dragged by
compulsory process before particular tribunals, and compelled to give
testimony against him. His papers, too, had been seized. “And yet,
in England,” said he, “where we say they know nothing of liberty,
a gentleman, who had been seized and detained two hours, in a back
parlour, had obtained damages to the amount of one thousand guineas.”
He said that an order had been issued to kill him, as he was descending
the Mississippi, and seize his property. And yet, they could only have
killed his person, even if he had been formally condemned for treason.
He said that even post-offices had been broken open, and robbed of his
papers; that, in the Mississippi Territory, even an indictment was
about to be laid against the postmaster; that he had always taken this
for a felony; but that nothing seemed too extravagant to be forgiven
by the amiable morality of this Government. “All this,” said Mr. Burr,
“may only prove that my case is a solitary exception from the general
rule. The Government may be tender, mild and humane to everybody but
me. If so, to be sure it is of little consequence to anybody but
myself. But surely I may be excused if I complain a little of such
proceedings.”
[Illustration: AFFIDAVIT OF BURR FOR SUBPŒNA _DUCES TECUM_ FOR
PRESIDENT JEFFERSON
_Facing p. 40_
]
“Our President,” said Mr. Burr, “is a lawyer and a great one too. He
certainly ought to know what it is that constitutes a war. Six months
ago, he proclaimed that there was a civil war. And yet, for six months
have they been hunting for it, and still cannot find one spot where it
existed. There was, to be sure, a most terrible war in the newspapers;
but nowhere else.”
The next day the court in a written opinion held that the motion was
a proper one at this stage of the proceedings, and the attorney for
the United States was permitted to open his testimony; but in doing
so, the Chief Justice expressed his regrets that the result of the
motion “may be publications unfavorable to the justice and to the right
decision of the case.” Counsel were impressed with this observation
of the court, and an attempt was made to reach an agreement whereby
a public disclosure of the evidence at this time might be avoided.
It was proposed by counsel for the United States that Colonel Burr’s
recognizance be made sufficiently large to insure his appearance to
answer the charge of high treason against the United States, but on
the following day this proposition was rejected by Colonel Burr. Mr.
Hay then proceeded with some reluctance to the examination of witnesses
in support of his motion to commit Burr, as “he felt the full force of
the objections to a disclosure of the evidence, and the necessity of
the court declaring its opinion before the case was laid before the
jury.”
The attorney for the United States first sought to read the deposition
of General Wilkinson, which precipitated the question of the order in
which the testimony was to be introduced and its admissibility. The
Supreme Court had already decided in the case of Swartout and Bollman
that the deposition of Wilkinson might be admitted in evidence under
certain circumstances, but that it did not contain any proof of an
overt act. The Chief Justice observed that no evidence certainly had
any bearing upon the present case unless the overt act be proved, but
he would permit the attorney for the United States to pursue his own
course as to the order of introducing his testimony.
A lengthy argument here ensued, in which Mr. Botts took a conspicuous
part. In a most lucid manner he defined the crime of high treason under
the Constitution of the United States, and applied it to the issue
before the court.
“First,” he said, “it must be proved that there was an actual war. A
war consists wholly in acts, and not in intentions. The acts must be in
themselves acts of war; and if they be not so intrinsically, words or
intentions cannot make them so. In England, when conspiring the death
of the King was treason, the _quo animo_ formed the essence of the
offence; but, in America, the national convention has confined treason
to the act. We cannot have a constructive war within the meaning of the
Constitution. An intention to levy war, is not evidence that a war was
levied. Intentions are always mutable and variable; the continuance
of guilty intentions is not to be presumed. Secondly, the war must
not only have been levied, but Colonel Burr must be proved to have
committed an overt act of treason in that war. A treasonable intention
to coöperate is no evidence of an actual coöperation. The acts of
others, even if in pursuance of his plan, would be no evidence against
him. It might not be necessary that he should be present, perhaps;
but he must be, at the time of levying the war, coöperating by acts,
or, in the language of the Constitution, be committing overt acts.
Thirdly, the overt act by the accused, as an actual war, must not only
be proved, but it must be proved to have been committed within this
district. Fourthly, the overt act must be proved by two witnesses.”
The Chief Justice declared this view of the law to be correct, and
General Wilkinson’s deposition was accordingly put aside.
Mr. Hay realized the utter futility of his efforts to commit Burr on
the charge of treason at this stage of the case, and readily consented
to Burr’s proposition to double the amount of his bond to answer the
charge of a misdemeanor. Luther Martin, who appeared for the first
time, became one of his sureties. He declared in open court that he
was happy to have this opportunity to give a public proof of his
confidence in the honor of Colonel Burr, and of his belief in his
innocence.
General Wilkinson had not as yet put in his appearance, and much
impatience was manifested because of the inconvenience he had caused.
The grand jury were therefore adjourned from day to day until the
second day of June, when they were adjourned until the 9th, on which
last named day he was expected to arrive.
The court met accordingly on the 9th, and after the names of the grand
jury had been called and explanations offered as to the continued
absence of General Wilkinson, Colonel Burr moved the court to issue
a subpœna _duces tecum_ addressed to the President of the United
States, requiring him to produce certain papers, and on the following
day he presented to the court an affidavit, drawn up and sworn to by
himself in open court in support of his motion. In this affidavit he
sets forth that he has great reason to believe, that a letter from
General Wilkinson to the President of the United States, dated October
21st, 1806, as mentioned in the President’s message of the 22nd
January, 1807, to both Houses of Congress, together with the documents
accompanying the said letter, and copy of the answer of said Thomas
Jefferson, or of anyone by his authority, to the said letter, may be
material in his defence in the prosecution against him. And further
that he has reason to believe, the military and naval orders given by
the president of the United States, through the departments of war
and of the navy, to the officers of the army and navy, at or near
New Orleans stations, touching or concerning the said Burr, or his
property, will also be material in his defense; and that he had made a
personal request for copies of these papers during a recent visit to
Washington, and had been refused.
Mr. Martin in support of the propriety of granting this particular
subpœna laid down as a general principle, in all civil or criminal
cases, that every man had a right by process to establish his rights
or his innocence. He asserted that one of the papers necessary to the
defense is the original letter from General Wilkinson described in
Burr’s affidavit. The other papers are copies of official orders by
the navy and war departments. He had supposed that every citizen was
entitled to such copies of official papers as are material to him, and
he had never heard of but one instance where they were refused, and
this was under presidential influence.
“We intend to show,” says Mr. Martin, “that, by this particular order,
his property and his person were to be destroyed; yes, by these
tyrannical orders, the life and property of an innocent man were to be
exposed to destruction. We did not expect these originals themselves.
But we did apply for copies; and were refused under presidential
influence. In New York, in the farcical trials of Ogden and Smith, the
officers of the Government screened themselves from attending, under
the sanction of the President’s name. Perhaps the same farce may be
repeated here; and it is for this reason that we applied directly to
the President of the United States. Whether it would have been best
to have applied to the Secretaries of State, of the Navy and War, I
cannot say. All that we want is the copies of some papers, and the
original of another. This is a peculiar case, sir. The President has
undertaken to prejudge this trial by declaring, that, ‘of his guilt
there can be no doubt.’ He has assumed to himself the knowledge of
the Supreme Being himself, and pretended to search the heart of my
highly respected friend. He has proclaimed him a traitor in the face
of that country, which has rewarded him. He has let slip the dogs
of war, the hell-hounds of persecution, to hunt down my friend. And
would this President of the United States, who has raised all of this
absurd clamor, pretend to keep back the papers which are wanted for
this trial, where life is at stake? It is a sacred principle, that in
all such cases, the accused has a right to all the evidence which is
necessary to his defense. And whoever withholds, wilfully, information
that would save the life of a person, charged with a capital offence,
is substantially a murderer, and so recorded in the registry of Heaven.”
[Illustration: SUBPŒNA _DUCES TECUM_ FOR PRESIDENT JEFFERSON]
[Illustration: SUBPŒNA _DUCES TECUM_ FOR PRESIDENT JEFFERSON (Continued)
_Facing p. 50_
]
Mr. Wirt replied to Mr. Martin, and in the course of his argument, made
the following reference to Martin’s arraignment of Jefferson and the
administration: