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. Brady