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.