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I
THE <i
NEW YORK. PUBLIC LIBRARY
PRESENTED BY
.HcLwl n - .a* - .Kas.slilf .
16 June 192^
J
■ / , ' / T ••
•. z M- I j
/vf
7-
THE ^
NEW YORK. PUBLIC LIBRARY
PRESENTED BY
♦■.
16 June I92,g
A\y
/ 1
I *'^'
^ •; ( r >
livu r^ «i states . (SftuxMS: c tTTfu .T Cs>' •rt"''. • /^ -
^ • • • • ^
REPORTS ■ ^<^.iir^c^u^/yr'
OF THE TRIALS OF '^ ^^
COLONEL AAROK BURU, i
(LATE VICE PRESIDENT OP THE^^nOTEB^STATES,) ' ^ J
FOR
TREASON,
AMD FOR
A MISDEMEANOR,
In preparinnf ttie means of a Military Expedition ag^ainst Mexico, a territOTy df
the King of Spain, with whom the United States were at peace,
IN THE
CIRCUIT COURT OF THE UNITED STATES,
Held at the city of, Richmond^ in the district of Virginia^ in the Summer
Term of the year 1Q07,
TO -WHICH 18 ADDED,
AN APPENDIX,
CONTAINING
THE ARGUMENTS AND EVIDENCE
IN SUPPORT AND DEFENCE OF TAE MOTION AFTERWARDS HADE Br
THE C0UN9EL FOR THE UNITED STATES,
TO COMMIT *
A. Burfy H. Blarmerhassett and L Smithy
TO BE SENT FOR TRIAL TO THE STATE OF KENTUCKY,
FOR
TREASON OR MISDEMEANOR,
ALLEGED TO BE COMMTTTEU TU&RE.
«
TAKEN IN SHORT HAND
BY DAVID ROBERTSON,,
COUNSELLOR AT LA.W.
IN TWO VOLUMES-.. VOL. L
PHILADELPHIA:
PUBLISHED BT HOPKINS AND EARLE.
FRY AND KAMMERER, PRINTERS.
J 1808.
•
r /
m^»mm
mmtam
TK3 se:w YO'K I
A8T0a» LCMOX AND
i*««i
District of Virginia^ 98,
BE it remembered that on the 9th day of June, in the thirty-second
year of the independence of the United States of America, Da-
vid Robertson of the said district liath deposited in this ofRce the
title of a book, the right whereof he claims as author, in the words
following, to wit:
" Reports of the trials of colonel Aaron Burr, (late Vice President
^ of the United States,) for Treason, and for a Misdemeanor, in
<< preparing the means of a military expedition against Mexico,
<< a territory of the king of Spain, with whom the United States
'< were at peace, in the Circuit Court of the United States, held
<' at the city of Richmond, in the district of Virginia, in the sum-
^< merterm of the year 1807. To which is added. An Appendix,
<< containing the arguments and evidence in support and defence
'< of the motion afterwards made by the counsel for the United
<< States, to commit A. Burr, H. Blannerhassett and I. Smith, to
" be sent for trial to the state of Kentucky, for Treason or Mis-^
<< demeanor, alleged to be committed there. In Two Volumes.
'< Taken in short hand by David Robertson, counsellor at law."
In conformity to the act of the Congress of the Unked States, inti-
tuled '< An act for the encouragement of learning, by securing the
« copies of maps, charts and books, to the authors and proprietors of
^< such copies, during the times therein mentioned;" and also, to an
ict intituled " An act supplementary to an act, intitled an Act for the
« encouragement of leammg, by securing the copies of maps, charts
<' and books, to the authors ai)d proprietors of such copies, during the
" times therein mentioned; and extending the benefits thereof to the
• « arts of designing, engraving, and etching historical and other
«« prints."
WILLIAM MARSHALL,
Clerk of the District qf Virginia,
• •<
m , • • ■
• • • ■
• ••» •
• • • • •
• • •
• • • •
• • • •' •
: • •• • •
• • • •• •
• • • • •
x^REFACE.
X HIS publication contains a full and correct statement of all
the testimony and documents adduced on the two trials of
' Col. Burr, for treason and misdemeanor, and on th6 motion
made by the counsel for the United States, to commit the
accused, for the purpose of sending them to Kentucky, to be
tried for similar offences committed there; also the arguments
of the counsel and the opinions of the judges on all the points
discussed* The proceedings previous to the trials, before and .
while the grand jury were m deliberation, are also detailed, but
the first part of them not so fully as the rest of the report;
because it was the middle of June, before the reporter was'
prevailed on to undertake the publication. He has however
consulted the best sources of information, in order to enable
him to present to the public a correct statement of those pre-
liminary proceedings which occurred from the commencement
of the term till he began the report. He was present in couft,
during a considerable part of that interval^ and iias therefore
been aided by his recollection.
The report of the trials might be perfect, and would be long,
even if all those proceedings were omitted. But they are in-
serted, because it was deemed more satisfactory to the public
to give a connected historical detail of all the proceedings
against colonel Burr from his first arrest, till the decision of
the final motion against himself, I. Smith and H. Blanner-
hassett, than to limit the publication to a statement, however
full, of the trials only. For j|uch a detail would most probably
enable the reader to judge most correctly of the views of the
accused, and of the nature and tendency of the great scheme
or plot which has thrown the country into such a state of agi-
tation and alarm, and of the measures adopted to counteract
and defeat It. For the same purpose, and to elucidate the sub-
ject, there are prefixed a concise accouitt of his first examination
before the Chief Justice, the opinion pronounced thereon, and
the opinion of lkt supreme court of the United States,' in the
case of BoUmaxrand Swartwout.
The arguments of the counsel on all points of importance
are detailed vlftbatim as uttered: and those of a subordinate
nature are considerably condensed^ as the report would other-
I
•
PREFACE.
«
wise have been too voluminous and expensive* As much of
the authorities referred to are inserted, as will enable any
reader to comprehend their application. The opinions of the
court, on most of the points, are published as written and de-
livered by the Chief Justice, and in the few -other cases as
uttered.
In whatever view these trials are to be regarded, they must
be deemed very interesting. But when we consider the cele-
brity of the party accused, the stations and characters of some
of those implicated with him, the magnitude and extent of their
supposed designs, the danger to the union of the states appre-
hended therefrom, the learned and profound doctrines which
were so ably and elaborately discussed by such eminent counsel,
and the great talents of the court, this report cannot but be
highly important and valuable. Perhaps no trial for treason
has taken place in any country, in which more ability, learning,
ingenuity and eloquence have been displayed* All die impor-
tant decisions on treason, in England and this country, were
acutely and thoroughly examined, and considered; and their
application to the questions before the court discussed with
great ingenuity and skill: nor was less industry or judgment
shown in arguing the application and effect of the constitution of
the United States, and of the common law, if it existed at all as
a law of the union. On the motion to commit, the effect of th^
]plea of " autrefois acquit** or the doctrine of a former acquittal,
was also ably investigated.
It is believed that this report will be amusing and interesting
to all persons capable of reading and understanding; and that
to the lawyer, politician and man of general information, it will
be particularly gratifying and useful, as it will comprehend a
valuable treatise on criminal law, and especially high treason.
The reporter has used his best exertions to maike the accuracy
of the publication correspond with the importance of the work*
How far he has succeeded, he now submits to the judgment
and candour of the court, the counsel engaged in the cause,
and the public.
f
CONTENTS
OF THE
FIRST VOLUME.
EXAMINATION of Col. Aaron Burr before- the Chief Justice of
fhe United States, - - 1
Evidence *>f Major Perkins, who arrested Col. Burr on the Tombigbee
river, in the Mississippi territory, 2
Motion of Mr. Hay, the Attorney of the United States, for the. Dis-
trict of Virginia, to commit the Prisoner, S
Speech of Mr. Wickham, counsel of Col Burr, in opposition to the
motion, - - - - - -- - - ,- 4
peech of Mr. Randolph) counsel of Col. Burr, in opposition to the
motion, *- - - - -- - -5
Speech of Col. Burr, in opposition to the motion, - - . - 6
of Mr. Rodney, the Attorney General of the United States^
in support of the motion, - - - - - - 8
Opinion of the Chief Justice on the motion, ... 11
of the Supreme Court, in the case of BoUman and Swartwout, 21
Appearance of Col. Burr, pursuant to his recognisance, at the Circuit
Court of the United States, for the district of Virginia, on Friday,
the 22d May, 1807, - * 31
Challenge of Col. Burr to tbe panel of the Grand Jury, • - U/.
This su^ect discussed to - - - • - - - 38
Challenges for favour, - ----- t A.
The subject discussed to ..-.-- 46
Grand Jury sworn, - ' - - - - - • «^-
Motion of Col Burr, to instruct the Grand Jury, discussed - 46—49
of Mr. Hay to commit Mr. Burr, on a charge of high treason, 50
discussed to - - - ' - - - 78
OfMiiion of the Court, delivered by the Chief Justice, on this motion, 79
Previous proof of an overt act insisted upon by Col Burr's counsel, 82
discussed to - ----- 96
Motion of Col. Burr*s counsel to exclude the affidavit of Jacob Dun-
baugfa, as not appearing to be properly taken, -x - - Ht-
Opinion-of the Court thereon, - - - - - - 97
Motion of Mr. Hay, to bind Col. Burr in a further recognisance, 101
Opinion of the Court thereon, - - - - • 104
Bail given by Col Bmr, ------ 10©
The Grand Jury adjourned from the 3d till the 9th of June, - 112
adjoumedfromthe9th till 11th of June, - - 113
Motion of Col. Burr to issue a subpoena duces tecurth to be directed to
the President of the United States, requiring the production of cer-
tain papers in evidence, ------ 114
This motion discussed to ----- - 17*
MotioQ of Col BiUT, to give specific instnictkms to tho Grand Juiy. m
CONTENTS.
Page
Opinion of the Court, on the motion to issue a subpoena duca tecunh to
be directed to the President of the United States, - 177
Motion of Mr. Hay to send Doctor BoUmafi to the Grandjury, and that
he be considered as a pardoned man, ... - 191
Motion of Mr. Wickham, to instruct tlie Grand Jury to receive no
papers but throuj^h the medium of the Court, ... 197
Discussion of this subject to . - . . . 205
Motion of Mr. Hay, to send to the Grand Jury a cyphered letter and
Willie to explain it, - . .... 206
Objection, that he should be asked no question tending to criminate
himselfj - -* - ... .. . .. 207
Letter from the President of the United States, in answer to Mr. Hay,
on the subject of the subpcena ducet tecuntf ... 209
Discussion of the question, how far a witness may refuse to answer
questions which he thinks* would criminate himself, . 212—234
Preliminary discussion of the right to move for an attachment against
General Wilkinson, - - - - . ' . 236
Opinion of the Court in the case of Willie, - ... 242
Motion of Mr. Randolph to issue an attachment ag^ainst General Wil-
kinson, supported by affidavits, ..... 247
Objection to those affidavits, because said to be written by the attorney
of the accused, - ..... 258
Objection, because the witnesses were present and could be examined
viva voce, .-..--. 259
Testimony of James Knox, in support of the motion, - - !268
of Lieut. Gaines, against the motion, ' - - -■ 271
of Mr. John Graliam against it, ... 274
of Captain Murray against it, .... 277
Speech of Mr. Randolph, in support of the motion, - • i6.
of Mr. Mac Rae, in opposition to the motion, . - 292
of Mr. Botts, in support of the motion, ... 300
True bills for Treason and Misdemeanor found against Aaron Burr
and -Herman Blannerhasaet, ..... 306
Motion to bail Col. Burr, discussed .... 306 — 312
Speech of Mr. Hay, against the motion to attach General Wilkinson, ib*
Grand Jury call for the cyphered letter, said to be from Gen. Wil-
kinson to Col. Burr, post marked the 13th May, - • 327
Discussion of this subject to . - . . . 329
Mr. Wickham's speech in support of the motion to attach Gen. Wil-
kinson, --- ...... 331
Mr. Martin's speech, in support of the same, ... 341
Indictments found by the Grand Jury against Jonathan Dayton, John
Smith, Comfort Tyler, Israel Smith and Davis Floyd, - - 350
Motiop to remove Col. Burr from the public gaol, to another place of
confinement, on account of the situation of that gaol, - - ib.
His removal ordered, -...-- 351
CoL Burr pleads not guilty, ..... 352
A venir/ of 48 Jurors awarded* out of whom 12 to be from Wood
county, --..-.-. 354
Opinion of the Court on the motion against Gen. Wilkinson, - i6.
Tnal postponed till the 3d day of August, - - - - 357
Order to remove Col. Burf to the penitentiary, pursuant to the offer of
the Executive of Virginia, - - - ... 359
Discussion of the mode of conducting the prosecution and defence
before the Petit Jury, ..... 364-^65
Chalienge of the Jurors from Wood county, discussed - 367 — 372
Discussion of the challenges to the other Jurors, - • 373 — 382
FrelimiDary observations as to the suspended Jurymen, - 382 — 3B6
CONTENTS.
%)eech t)f Mr. Martin as^ainst the competency of the suspended
Juiymen, - -*- - - - -- 386
Speech of Mr. Botts an^ainst the same, .... 391
of Mr. Burr against the same, .... 393
of Mr. Mac Rae in support of their competency, - 393
of Mr. Hay in support of their competency, - - 395
of Mr. Randolph against it, - - - - 412
Opinionof the Court on this question^ ... - 414
A " fa/rx," or panel of 48 Jurors, awarded to he summoned by the
Marshal, - ..... 431
The Jury sworn, ....... 430
Opening speech of Mr. Hay to the Petit Jury, - - - ' 433
Objection of Mr. Burr's counsel to Mr. Hay's mode of examining the
witnesses, and demand of the previous proof of an overt act, 452—^454
Mr. Wirt's speech in vindication of this mode of examination, - ib,
Ar^mentof Mr. BurHs counsel against it, - - - 459-— 460
Opmion of the chief justice on the order of evidence, - • tb»
Evidence of general William £aton, .... 473
of commodore Truxtun, ..... 485
of Peter Taylor, - - . - 491
of general John Morgan, - - - 497
of colonel Morgan, - - • - > ' 500
of Thomas Morgan, • • - ... 5Q5
of Jacob Allbrignt, ..... 506
Further Evidence of Peter Taylor, . ., . 514
Evidence of William Love, .... - ib.
of Dudley Woodbridge, ..-..- 518
of Simeon Poole, - ' - - - ^ • 526
of Maurice P Belknap, - - - - 538
of Edmund P. Dana, - - - - - iA.
Speech of Mr. Wickham in support of the motion to arrest the evidence, 533
V
\
I
Alterations^ Additions and Corrections.
Page 5, Line 39, for * who' rt-ad • which*
7, 16, for ' that' read * the'
25, 1, dele • so'
25, 17, for • moved' read * proved*' -
33, 20, dele * of fieri facias'
33, 25, for * that' read * they'
34, 37, for ' deny him' read * be denied'
\ 38, 42, for * in' read.* on'
40, 43, for * it' read • they'
54, 47, for ' argument' read ' agreement'
SS^ 6, for * of rea^d « and'
^ 70, 1, after the comma the sentence ought to read
thus: ' I trust that unless some hard-mouthed precedents,
from old black letter books, be found to justify this proce-
dure, it will be disregarded'
Page 72, Line 33. for * prejudicate' read * prejudice'
75, 46, for « with' read * to*
100, 4, after * things* add * to'
121, 31, for ' 27th' read ' 22d'
124, 11, for • 27th' read 22d'
127, 34, after * that' add • it'
136, 34, for • Aire' read * Aac*
173, 20, for « 15th' read * 5th'
222, 9, for * person* read * prisoner'
237, 41, for * motion' read * mstance'
241, 30, aflcr • this' read * because it is'
257, 23, for • attach' read • atUck'
274, 30, after • relevancy' add * of his evidence'
2a*?, 16, for ' that' read « lest'
292, 13, for • 3d' read * 2d*
302, 44, for ' cares' read ' ears'
310, 33, for ' would* read * could'
315, 40, afler * refers' dele ' to'
315, 41, after • question* dele * ;'
328, 15, for ' impel* read • compel'
337. 6, before * command* read ' a'
343, 19, after * faciliUting' dele « to'
349, 45, for * gentlemen' read * gentleman^
381, 2, for * returned* read * retained'
387, 20, for * juryman' read * witness*
387, 21, for • witness* read * juryman'
398, 2o, for * severally* read * several*
401, 47, after * kingdom* add '.that*
413, 35, for • has* read * is*
421, 41, for * Pegrom' read * Pcgram*
438, 12, after • and' dele • we*
440, 41, for * and* read * but*
444y 20, for 'influence' read * inference'
444, 38, for ' assemblage* read ' assembly'
483, 19, for • those' read * that*
516, 33, for • him' read ' them'
534, 36, for « note a* read • note B*
538, 5, for • Teumley* read * Fernley*
542, 16, for * note a* read • note B'
543, 22, after • Fries* insert • f
552, 13, for • the present* read * this*
562, 2, dele ' this*
562, 26, before • 33 Hen. 8* read ' By*
562, 26, after • 281* dele « By'
562, 43, after ' be' add • so*
564, 2, for * be' read * were*
S^5, 17, for * and^ read * when*
THE EXAMINATION
or
COLONEL AARON BURR.
RICHMOND, Monday,. March dOth, 1S07.
Colonel AARON burr, who had been arrested
OB the Tombigbee river, in the Mississippi Territory, on the
19th day of February last, and brought to this city under a
military escort on Thursday evening the 26th instant, remain-
ed under guard until this day, when he was delivered dver to
die civil authority, by virtue of a warrant issued by the chief
J'ustice of die* United States, grounded on the charges of a
ligh misdemeanor, in setting on foot and preparing, within
the territories of the United States, a military expedition, to
be carried on from thence against the dominions of the king of
Spain, with whom the United States then were and still are at
peace; and also of treason against the United States.
Between the hours of twelve and one o'clock, major Scott,
the marshal of the district of Virginia, attended by two of his
deputies, wsdted on colonel Burr, at his lodgings at the Eagle
Tavern, and, after informing him in the most respectful man*
aer, of the nature and object of his visit, conducted him through
an awfully silent and attentive assemblage of citizens to a re-
tired room in the house, where he was brought before chief
justice Marshall for examination. The counsel and a witness
for the United States, the counsel for the prisoner, the mar-
shal and his deputies, and a few friends invited by the counsel
of colonel Burr, were alone admitted.
This mode of proceeding occasioned some degree of dissatis-
faction among the citizens; but the following statement of facts,
which we are authorised to say is correct, will readily account
for it. When the attorney for the district applied to the chief
justice for a warrant, some conversation ensued on the manner
rf examination. Mr. Marshall observed that it was indifferent
to him whether it was held at the capitol or at the Eagle
Tavern. Mr. Hay objected to the latter, that no room was suf-
ficiently large to receive the crowd that would attend, which
Vol. L a
would 1)e a source of considerable inconvenience* Mr. Mar-
shall observed, that this difficulty could be obviated by luiving
the examination in* private. To which Mn Hay assented, on
the condition, that if there were a discussion by counsel, they
should adjourn to the capitol.
The evidence introduced on this occasion consisted of a
copy of the record in the case of Bollman and Swartwout in
the supreme court of the United States, (containing the af-
fidavits of general Eaton, general Wilkinson, and others) ; and
also of the verbal testimony of major Perkins, the gentleman
by whom colonel Burr was apprehended; the substance of which
we are authorised to assert, is correctly as follows : On the night
of the 1 8th or 19th of February last, he was at Washington court-
house. At about i 1 o'clock, as he was standing at the door of
the house occupied by the sheriff, he observed two men com-
ing down the road. The moon afforded him light enough to
enable him to see objects at some distance. The foremost
man, who was thirty or forty yards before his companion, and
who turned out to be colonel Burr, passed near the door with-
out stopping or speaking. Burr's companion stopped and in-
quired the way to major Hinson's: the way was pointed out,
but Perkins informed him that the major was from home, and
that, in consequence of a late rise in the waters, he would ex-
perience some difficulty in getting there that night ; the stran«
ger, however, went on. Perkins, struck with this midnight
journey, the silence of the person who had first passed, the un-
willingness of the travellers to stop at a public place, where
they and their horses might have been accommodated, and
their determination to continue their route to Hinson^s, after
information was given that he was from home, communi*
cated to the sheriff his suspicion, that these men must be
under the influence of some extraordinary m6tive. Possibly-
they might be robbers, or perhaps one of them was Burr en*
deavouring to effect his escape. He had been informed that
Burr had left Natchez. Impressed by these suspicions, he
urged the sheriff, who had gone to bed, to rise and go with
him to Hinson's. After some time the sheriff agreed to ac«
company him, and they went to Hinson's, where they found
both the travellers. Burr, who had been in the kitchen to warm,
himself, soon came into the room where his companion and.
Perkins were. He spoke very little, and did not seem willing
to be obseryed. Perkins eyed him attentively, but never got a
full view of his face. He discerned that Burr once glanced his
eye at him, apparently with a view to ascertain whether Per-
kins was observing him ; but withdrew it immediately. The
latter had heard Mr. Burr's eyes mentioned as being remar-
kably keen, and this glance from him strengthened his suspi<*
cionfl* He detenmned immediatdy to take measures for ap-
prehending him. He accordingly left the place, after men.
tioning in a careless manner the way he meant to take. Th«
way he indicated was opposite to the course he thought Burr
would pursue* After getting beyond the reach of observation,
he took the road to Fort Stoddajt, and obtained the aid of the
commandant and four soldiers. The circumstances of the ar-
rest have been already stated to the public
Perkins further said, that, while they were on their way to
Washington, at Chester Town or courthouse, in the back part
of South*Carolina, Mr. Burr, observing a small collection of
people, got oif his horse, went into the company, asked for a
magistrate, and complained of being under an illegal arrest
and military guard* Perkins, however,- soon reinstated him on
his horse, and directed the guard to proceed. The people
manifested no disposition to interfere.
After the evidence was gone through, Mr. Hay submitted
to the chief justice a motion in writing for the commitment
of the prisoner on the two charges above mentioned. A dis-
cussion was then agreed, on both sides, to be necessary; and,
in pursuance of the arrangement previously made, Mr. Hay
moved for an adjournment to the capitol, to which the counsel
of colonel Burr readily assented. Colonel Burr was then ad-
mitted to bail in the sum of five thousand dollars for his ap-
pearance on the following day at ten o'clock,
Tuesday, 3 1st March, 1 807.— Present, John Marshall, chief
justice of the United States. Counsel for the prosecution, C«sar
A* Rodney, attorney general for the .United States ; George
Hay, attorney of the United States for the district of Virginia*
Counsel for colonel Burr, Edmund Randolph, esquire, John
Wickham, esguire.
At ten oMock, the chief justice was seated on the bench,
and the court room crowded with citizens. Colonel Burr ar-
rived at half past ten o'clock, and apologised for the delay, de-
daring that he had misapprehended the hour at which he was
bound to appear.
On the suggestion of the counsel, that it would be impossible
to accommodate the spectators in the court room, the chief jus-
tice adjourned to the hall of the house of delegates.
Mr. Hat, the attorney for the United States, for the dis-
trict of Virginia, moved, that the prisoner should be committed
in order to take his trial upon two charges, exhibited against
him on the part of the United States : 1st, For a high misde-
meanor, in setting on fopt, within the United States, a military
«xt»«ditib«i ftgftiiifit the dbtnittions of the king of Sptiuy ft 4b*
i^ign prince, with whom the United States, at the time of tht
offence, were, and still are, at peace. 2d, For treason in ass^m''
Uing an armed force, with a design to*seize the city of Netf^
Orleans, to revolutionize the territory attached to it, and to
separate the western from the Atlantic states.'
He stated the first offence to be a violation of the fifth sec*
tion of an act of congress, passed on the 5th of Jixii^e, i794^
Sntitled, ^^ an act in addition to the act for thii puhishment of
certain crimes against the United States," continued forfimif-
ed periods by several succeeding laws, and continued without
limitation by an act passed in 1799. The said section prok
Vides, ** that if any person shalL within the territory or juris-
** diction of the United States, begin or set on foot, or provide
** or prepare the means for any military expedition or entef^
^ prize, to be carried on from thence against theterritories ot
'^ dominions of any foreign prince or state, with whom the!
^^ United States are at peace, every person^so offending shall|
^' upon conviction, be adjudged guilty of a high misdemeanor,
^ and shall suffer fine and imprisonment, at the ^ discretion of
*^ the court in which the conviction shall be had, so as that
^^ such fine shall not exceed three thousand dollars, nor the
^' term of imprisonment be more than three years.'' He sup-
ported this charge by the letter of the prisoner addressed to
general Wilkinson, and insisted that it showed probable
cause to suspect him of having committed this offence ; nay,
that he had actually committed it, and that this construction of
the letter was deliberately adopted by the supreme court of
the United States ; that the intention of the prisoner to com-
mit these offences was perfectly clear from the evidence.
But, secondly, he insisted, that there was probable cause to
suspect, thtit the prisoner had committed an act of treason;
that he intended to take possession of New-Orleans, make it
the seat of his dominion, and the capital of his empire ; and
^at this charge was proved by the adSdavits exhibited in tb6
ca^es of BoUman and Swartwout, and he referred to the opi-
nion of the supreme court in those cases, as supporting th^
doctrine for which he contended, that there was just ground
of suspicion agadnst him. *He went minutely' into an examina-
tion of the evidence, to show that he was correct, and among^
other circumstances mentioned his fi;ight from jostice.
Mr. WicKHAM, in behalf of the prisoner, contended, that
there was no evidence of treascta committed by colonel Burr ;
that there was nodiing like an overt act, or probable ground to
believe hitp. guilty of such an offence; that the letter in cypher
to general Wilkinson was not delivered by Mn Burr, nor
proved to be written by him ; that ft compnriscm of the h»cU
writing was inadteissible evidence ; that if it were written by
him, the contents of it might be mistaken, and general Wii*
kinson acknowledged that it could not be fully interpreted ; that
the definition of treason was clearly marked out by the consti^
tution itself, and could not be mistaken. He contested the pro*
priety and effect of die evidence relied on by the attorney for
die United States, and insisted, ths^t if any thing could be in*
ferred from it, an invasion of the territories of the king of
Spain, a power with which we were in an intermediate BttM
between war and peace, was by far the most probable $ that if
his intention were to attack the Spanish setdetnents, it was
not only innocent, but meritorious ; that th^e were strong cir*
cumstances at that time to justify the expectation of a war with
Spain ; and he appealed to the message of the president of the
United States, at the opening of the session of congress, to
prove die provocations on the part of Spain, and the probability
of such an event; that if we remained at peace with that power^
sdll colonel Burr might very innocendy contemplate some in*
dividual enterprize, and the president recommended strong
settlements beyond the Mississippi; that as to what was deem*
ed a flight, he only exercised a right in endeavouring to escape
ftom military despousm. He concluded, that there was not a
•hadow of evidence to support the charge of treason ; and as
to the other, the evidence was trivial ; but if deemed sufficient
to put him on his trial, it was a bailable offence; and as, unfor*
tmately for colonel Burr, he was brought to the place where
he had fewer friends or acquaintances, than in almost any other
part of the United States, it woul^ be cruelty in counsel to
insist on his giving bail in a considerable sum.
Mr. Randoli>h enforced the same principles in behalf of the
accuseds He denied that there was any evidence to support
eidier of the charges ; that, though long conversant with cri*
ittinal jurisprudence, he never before heard of a conjecture of
an overt act of treason attempted to be proved from a supposed
intention! which was as inconsistent with law and justice as
with charity. But whatever the intention might have been, the
law required, that a criminal act must be proved, to support
a prosecution ; that the government, who had caused him to
be brought such a great distance from his friends and the scene
of intelligence, ought not to avail itself thereof to oppress him ;
that as treason was of all crimes the most heinous, it required
the strongest evidence to support it; whereas here there was
no proof except what was vague, weak, and unsatisfactory; that
ke had not fled from justice, but from military oppression,
(which he had a right to resist) after he had been acquitted in
Kentucky, and a grand juty in the Mississippi Teiritory had
found him not guUty. Notwithstanding the alarm excited^ no-
thing like an overt act of treason in levying war was proved.
No military preparations existed, not a single soldier was en*
listed ; nay, not even a servant extr£lordinary has been shown
to have attended him; that there was no evidence that Swar-
twout's communication with Wilkinson was authorised by
Burr, or that he faithfully delivered the message, if entrusted
with one ; that therefore the affidavit of Wilkinson proved no-
thing: that his being in the western country, and engaged in
collecting persons to settle some valuable lands, were the only
circumstances which remained to subject him to the slightest
shade of suspicion; and these were strangely converted into
acts of ^^ levying war;" that the terrible alarm at New-Orleans
was imputable to the conduct of general Wilkinson, whose ar-
bitrary and violent proceedings, and magnifying accounts of
danger, were calculated to make the people tremble for their
personal safety* As to his attempt to escape in South Carolina,
Mr. Randolph concluded that any other man would in the
same circumstances have endeavoured to escape from military
persecution and tyranny ; and that the manner in which he was
treated, was barbarous, inhuman and oppressive, to the last
degree* That, according to the doctrine contended for by the
counsel for the United States, a man might be apprehended in
the district of Maine, and carried as far as the Tombigbee,
illegally, without redress any where between those places, for
want of evidence; and when brought to the place appointed
for his trial, the court would not try him, but wait for further
evidence, if the commitment appeared to be right on the face
of it, which would annihilate, altogether, the benefit of the
writ of habeas corpus. He concluded, that there was no evi-
dence of an overt act to support the charge of treason, and that
it ought to be renounced* As to the other point, the fitting out
an expedition against the dominions of the king of Spain, he
asked,' where it was prepared? in what state? Virginia, Ohio,
Kentucky, or the Mississippi Territory f That they had no arms,
no ammunition; that they had some boats calculated only to
accommodate families removing to form new settlements^ He
hoped, that if the judge should think that a recognisance ought
to be required^ it should be in as small a sum as possible*
Colonel Burr rose, he said, not to remedy any omission of
his counsel, who had done great justice to the subject* He
wished only to state a few facts, and to repel some observa-
tions of a personal nature* The present inquiry involved a
simple question of treason or misdemeanor* According to the
constitution, treason consisted in acts; that an arrest could
\
only be justified by the suspicjons of acts, whereas, in this ease^
his honour was invited to issue a warrant upon mere conjee*
tare ; that alarms existed without cause ; that Mn Wilkinson
alarmed the president, and the president alarmed the people
of Ohio. He appealed to historical facts. No sooner did he
understand that suspicions were entertained in Kentucky of the
nature and design of his movements, than he hastened to meet
an investigation. The prosecution not being prepared, he was
discharged. That he then went to Tennessee. While there he
beard that the attorney for the district of Kentucky was pre*
paring another prosecution against him ; that he immediately
returned to Frankfort, presented himseljf before the court, and
again was honourably discharged ; that what happened in the
Mississippi Territory was equally well known ; that there he
was not only acquitted by the grand jury, but they went far«
ther, and censured the conduct of that government ; and i#
there had been really any cause of alarm, it must have been
felt by the people of that part of the country; that the manner
of his descent^own the river, was a fact which put at defiance
all rumours about treason or misdemeanor; that the nature of
his equipments clearly evinced that his object was purely
peaceable and agricultural ; that this fact alone ought to over*
dm>w the testimony against him ; that his designs were ho-
nourable, and would have been useful to the United States.
His flight, as it was termed, had been mentioned as evidence
of guilt* He asked, at what time did he fly? In Kentucky he
invited inquiry, and that inquiry terminated in a firm convic*
don of his innocence ; that the alarms were at first great in the
Mississippi Territory, and orders had been issued to seize and
destroy the persons and property of himself and party; that
he endeavoured to undeceive the people, and convince them
that he had no designs hostile to the United States, but that
twelve hundred men were in arms for a purpose not yet de-
veloped ; the people could not be deceived ; and he was ac-
quitted, and promised the protection of the government ; but
die promise could not be performed; the arm of military
power could not be resisted; that he knew there were military
orders to seize his person and property, and transport him to
a distance from that place; that he was assured by the officer
of 9fk armed boat, that it was lying in the river ready to receive
him on board. Was it his duty to remain there thus situated i
That he took the advice of his best" friends, pursued the dic-
tates of his own judgment, and Abandoned a country where
the laws ceasefl to be the sovereign power ; that the charge
stated in a hand-bill, that he had forfeited his recognisance^
was false ; that he had forfeited no recognis^ance ; if he had
forfeited any recognisance, he asked, why no proceedings had
9
uken place for the breach of it? If he was to be proteeuted
for such breach, he wished to know why he was brought to thii
place? Why not carry him to the place where the breach hap«
pened ? That more than three months had elapsed since thi
order of government had issued to seize and bring him tp that
place; yet it was pretended, that sufficient time had not been
allowed to adduce testimony in support of the prosectiti^i*
He asked, why the guard who conducted him to that place,
livoided every magistrate on the way, unless from a conviction
that they were acting without lawful authority? Why had he
been debarred the use of pen, ink, and paper, and not even
permitted to write to his daughter? That in the state of South
Carolina, where he happened to see three men together, he de-
manded the interposition of the civil authority; that it was
firom military despotism, from the tyranny of a military escort,
that he wished to be delivered, not from an investigation into
his conduct, or from the* operation of the laws of his country*
He concluded, that there were three courses that might be pur*
sued,— an acquittal, or a commitment for treason, or for a mis*
demeanor; that no proof existed in support of either, but what
was contained in the affidavits of £aton and Wilkinson,
abounding in crudities and absurdities*
Mr« Rodney, the attorney general of the United States,
then addressed the judge. He observed, that when he consi*
dered the numerous and attentive audience, the public anzietjr
ao strongly excited, the character charged, and the crime of
which he was accused, he was more than usually embarrassed ;
that he had never felt more for any person than for the pri*
soner, who wa3 no less Uian the late vice president of the
United States, esteemed for his transcendent talents, an<|
whoi9 he once considered as his friend, and treated as such in
his own house ; that he now stood charged widi the most hei*
nous crime ; that it was incumbent on those who prosecuted,
to prove probable cause to believe his^ guilt, and that the chain
of circumstances showed, without ddvA^t, that he was guilty :
that, however, he would endeavour to convince him, by his
manner of conducting the prosecution, that the government
was not influenced by malicious or vindictive passions, to perr
secute him.
That the gentlemen on the other side had argued as if thejr
were then before a jury upon the principal trial, and demanded
such legal evidence as would be sufficient to convict him on
such trial : that the law however, required no stich plenary tes^
timony in this incipient stage of the proceedings ; that to sboir
probable cause to authorise a commitment, ex parte testimony
was admissible; and unless it manifestly appeared that* he was
f
iiinoceiit, he ought to be committed; whereas before a jury,
3ach testimoDy would be excluded, and his innocence would
be presumed till his guilt appeared ; that on the trial the law re-
quired two witnesses to an ov#rt act of treason ; and that his
confession would be unavailing unless made in open couit; that
on the present inquiry, two witnesses were not requisite to
prove an overt act, and that ex parte evidence of his confession
must be admitted; that it was true, that the constitution requir*
ed two witnesses of an overt act to convict the prisoner; but
that the sixth article of the amendments to the constitution,
rendered probsdde cause only necessary to- justify the issuing
a warrant to take a man into custody, and of course to commit
him for trial. That there were two charges against him : one
for a crime against the constitution ; the other for a violation
of the act of congress passed in 1 794, to prevent the safety and
peace of the United States from being put in jeopardy, by the
daring enterprises of unauthorised in^viduals; on both of
which he would make a few remarks* In the first place he
contended, that the mystery in which this business was enve-
loped, afforded just grounds of suspicion. If the setdement o(
lands merely was intended, why were dark and corruptive mes«
sages sent to military commanders? why was a letter in cypher.
sent to the commander in chiefs when be was supposed to be
at St. Loais? why, when it was found he was not there, was
another sent to Natchitoches, and frpm thence to.New-Orlesuis?
That it was an important fact, that colonel Burr in the preceding
year had been throughout that whole country; that it was the
practice every 'day to take the confession of accomplioes aa
evidence against their principals, though made to escape pu-
nishment themselves ; that here the case was much stronger,
for the confessions of B<^man and Swartwout to general
Wilkinson were perfectly voluntary— -with the design of engaging
him in the criminal projects of colonel Burr: Their disclo-
sure ought to have the more weight, because they knew the
contents of the letters which they delivered, which stated them
to be in his confidence; and they declared themselves his par-.
tizans; that the affidavit of general Wilkinson, by which the^e
&cts are proved, was certainly good as a piece of ex pairte teati*'
Bony in this stage of the business, though inadmissible on. the
trial; that the declaration of Swartwout^ as stated in that affida-
vit, proves the intention of the prisoner to have been to seize on
New-Orleims, and plunder it, as preparatory to his expedition
against Mexico; that the supreme court, in the case of JBotlman
and S vartwouti had adjudged, that if an end cannot be accom^
(dished without treasonable means, the end itself was treasona-
ble; and of course the project of the prisoner must have been
tb perpetrate treason. Mr. Kodney further contended, that the
Vol. I. B
10
trea9onabIe intention thus proved by Wilkiiison wm Mronglf
fortified by the deposition of general Eaton, vhidi was un**
questionable evidence in this stage of the prosecution; that
ihere could be no doubt of the truth of the statements of this
gallant soldier; diis man of true honour and most respective
tharaeter, who had rendered such memorable services to his
country by traversing the deserts of Lybia, and by the conquest
of Deme; that his communications to him were begun in the
same cautious manner with those to general Wilkinson ; that
in both instances, he pretended at first to be in the confidence
of the government, but afterwards proceeded by degrees to de«*
velop his treasonable plans ; that the territory of Orleans, or
some other territory belonging to the United States, was to be
tevolutionized; that there was to be some seizure at'New«Or-
leans; thatno doubtremaitiedof the treasonable indention; that
the only doubt was, whether there was sufficient proof of force
having been actually embodied, and that all the circumstances
rendered that fact very probable. Mr. Rodney here expatiated
On the evidence : the letter of colonel Btirr written in July; his
intention to wait till he heard ft-om the military commander at
New-Orleans ; Swartwout's statement ^ Eaton's deposition; the
activity of colonel Burr in Ohio, Kentucky, Tennetie6,and the
Mississippi Territory, and his cautious nlysterious conduct; and
that in this incipient stage of the proceedings, stro^gier testimo-
ny could not be reasonably' expected ; that the goveifittient,
however vigilant it had been, had not had sufl|cien« time to ob^
tain it; and that he ought to be put on his trial i that if he
thotdd be acquitted by a jnry bf his country, It w^uld give no
man more heartfelt pleasui'e than himself*
When Mr. Rodney concluded, Mr. Hay observed, that if
fli^ judj^ should be of opinion, that the prisoner ought to b«
^\xt on his trial, and that he might be admitted to bail, he wish**
ed to make some observations on the amount of the sum in
tHbich tiie recognisance should be taken* He cited the 1st
tol. of the laws of the United States, p« 144, and 2d voL p. %7Sy
to show, that it was discretionary with the judge to admit to
ball, whether he shotlld be of opinion that he ought to be triecl
for treason or misdemeanor.* ' The chief justice answered, thsur
he wqiild' certainly give hhn ah opportui^ity to make the ob«
iefvatiohs he desired ; and that. he intended hinhterelf, to deliver
his opinion in writing, to prevent any misrepresentations of es.
pressions which might fall iVom him. Ab it could not be pre*
{mred tiH the next day, eolonel Burr's recognisance was renew-
ed for his appearance at the capitol on the following day at
ten o'clock.
n
WsmftsDAY, l9C April, 1607««-*-Th« chitf justice delivered
tke ibUowiog opinion in the presence of a numerous audience :
I am required on the part of the attorney for the United
States to commit the accused on two charges:
Ist. For setting on foot and providing the means for an ex*
pedittOQ against the territories of a nation at peace with the
United States.
2d. For committing high treason against the United States.
On an application of this kind I certainly should not require
diat proof which would be necessary to ccmvict the person to
be commjltedf 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.
I think this opinion entirely reconcileable with that quoted
from judge Blackstone. When that learned and accurate com*
mentator says, that *^ if upon an inquiry it manifesdy appears
diat no such crime has been committed, or that the suspicion en-
tertained of the prisoner was wholly groundless, in such cases
only it is lawful totally to discharge him, otherwise he must be
committed to prison or give bail, I do not understand him as
meaning to say that the hand of malignity may grasp any indi«
vidual against whom its hate ma^ be directed, or whom it may
capriciovaly seize^ charge him with some secret crime, and put
him on the proof of his innocence.* But I understand that the
foundation of the proceeding must be a probable cause to be-
lieve there is guUt; which probable cause is only to be done
away in the manner stated by Blackstone. The total failure of
proof on the part of the accuser would be considered by that
writer as being in itself a legal manifestation of the innocence
of the accused.
In inquiring therefore into the charges exhibited against
Aaron Burr, I hold myself bound to consider how far those
charges are supported by probable cause.
The first charge stands upon the testimony of general £aton
and general Wilkinson.
The witness first named proves that among other projects
* The cbicf justice ezpliciOy ttated to the reporters, that, in making the
abore observatioDS, he had no alhision to the conduct of t^e government in the
case before him, but only meant an elucidation of the general doctrine laid
dovm by Blackstone. He was induced, he said, to make these remarks, be-
cause it bad been sug|^stcd to him by a friend, after he had delivered liia
opinion, that his meaning in the abbvc expressions might possibly be miaap-'
wchefidcd.
/
12
which were more criminal, colonel Burr meditated an expedi^
tron against the Mexican dominions of Spain. This deposition
may be considered as- in^xKluctory to the affidavit of genend
Wilkinson, and as explanatory of the objects of any imlitary
preparations which may have been made.
I proceed then to that affidavit.
To make the testimony ofgeneral Wilkinson bear on colonel
Burr, it is necessary to consider as genuine the letter stated by
the former to be, as nearly as he can make it, an interpretation
of one received in cypher from the latter. Exclude this letter,
and nothing remains in the testimony, which can in the most
remote degree aiFect colonel Burr. That there are to the ad-
missibility of this part of the affidavit great and obvious objec-
tions, need not be stated to those who know with how much
caution proceedings in criminal cases ought to be instituted^
and who know that the highest tribunal of the United States
has been divided on them. When this question came before
the supreme court, I felt the full force of these objections, al-
though I did not yield to them. On weighing in my own
mind the reason for and against acting, in this stage of the bu-
siness, on that part of the affidavit, those in favour of doing so
appeared to me to preponderate, and, as this opinion was oot
overruled, I hold myself still at liberty to conform to it.
That the original letter, or a true copy of it accompanied by
the cypher, wduld have been much more satisfactory, is not to
be denied: but I thought, and I still think, that, upon a mere
question whether the accused shall be brought to trial or not,
upon an inquiry not into guilt but into the probable cause, the
omission of a circumstanoe which is indeed important, but
which does not disprove the positive allegations of an affidavit,
ought not to induce its rejection or its absolute disbelief, when
the maker of Ae affidavit is at too great a distance to repair the
fault. I could not in this stage of the prosecution absolutely
discredit the affidavit, because the material facts alleged may-
very well be within the knowledge of the witness, although he
has failed to state explicit^ all the means by which this know-
ledge is obtained.
Thus, general Wilkinson states that this letter was received
from colonel Burr, but does not say that it was in his hand
writing, nor does he state the evidence which supports this af-
firmation. But, in addition to the eircumstance that the posi-
tive assertion of the fact ought not perhaps, in this stage of the
inquiry, to be disregarded, the nature of the case furnishes that
evidence.
The letter was in cypher. General Wilkinson k is true, does
notsay that acypher had been previbusly settled between colonel
Burr and himself, in which they might correspond on subjects
13
which, Aoogfa innocent^ neither of them might with to subject
to the casualties of a transportation from the Atlantic to the
Mississippi; but when we perceive that colonel Burr has written
in cypher, and that general Wilkinson is able to decypher the
letter, we must either presume, that the bearer of the letter was
also the bearer of its key, or that the key Iras previously in
possession of the person to whom die letter was addressed. In
staling particularly the circumstances attending the delivery of
this letter, general Wilkinson does not say that it was accom-
panied by the key, or that he felt any surprise at its being in
cypher. For this reason, as well as because there is not much
more security in sending a letter in cypher accompanied by its
key, than there is in sending a letter not in cypher; I think it
more reasonable to suppose that the key was previously in poS^
session of Wilkinson. If this was the fact, the letter being
written in a cypher previously setded between himself and
colonel Burr, is, in this stage of the inquiry at least, a circum«
stance which sufficiendy supports the assertion, that the letter
was written by colonel Burr.
The enterprize described in this letter is obviously a milita-
3 enterprise, and must have been intended either against the
nited States, or against the territories of some other power on
the continent, with all of whom the United States were at
The expressions of this letter must be admitted to furnish at
least probable cause for believing, that the means for the expe*
dition were provided. In every part of it, we find declarations
indicating that he was providing the means for the expedition;
and as these means might be provided in secret, I do not think
that further testimony ought to be required to satisfy me, that
there is probable cause for committing the prisoner on this
charge.
Since it will be entirely in the power of the attorney general
to prefer an indictment against the prisoner, for any other of-
fence which he shall think himself possessed of testimony to
support, it is in fact, immaterial whether the second charge be
expressed in the warrant of commitment or not; but as I hold
it to be my duty to insert every charge alleged on the part of
the United States, in support of which probable cause is shown,
and to insert none in support of which probable cause is not
shown, I am bound to proceed in the inquiry.
The second charge exhibited againt the prisoner, is high
treason against the United States in levying war against
them.
As this is the most atrocious offence which can be committed
against the political body, so is it the charge which is most ca-
pable of being employed as the instrument of those malignant
14
tnd vtndiGtsire piivaians which may rag% in the bosoms of con*
tending parties straggling for power« It is that, of which the
people of America hare been most jealous, and therefcme,
while other crimes are unnoticed, they have refused to trust
the national legislature with the definition of this, but have
themselves declared in their constitution that ^4t shall consist
only in levying war against the United States, or in adhering
to their enemies giving them aid and comfort." This high
crime consists of overt acts wUch must be proved by two wit*
nesses or by the confession of the party in open courts
Under the control of this constitutional regulation, I am to
inquire whether the testimony laid before me furnishes proba*
ble cause in support of this charge. The charge is, that the fact
Itself has been committed, and the testimony to support it must
furnish probable cause for believing that it has been actually
committed, or it is insufficient for the purpose for which it ia
adduced.
Upon this point too, the testimony of general Eat6n is first
to be considered. That part of his deposition which bears up-
on this charge is the plan disclosed by the prisoner for seizing^
upon New-Orleans, and revolutionizing the western states.
That this plan, if Consummated by overt acts, would amount
to treason, no man will controvert. But it is equally clear, that
an intention to commit treason is an offence entirely distinct
from the actual commission of that crime. War can only be
levied by the employment of actual force. Troops must be
embodied, men must be assembled in order to levy war. If
colonel Burr had been apprehended on making these commu-
nications to general Eaton, could it have been alleged that he
had gone further than to meditate the crime ? Could it have
been said that he had actually collected forces and had actually-
levied war? Most certainly it could not. The crime really com-
pleted was a conspiracy to commit treason, not lin actual com*
mission of treason.
If these communications were not treason at the instant they
were made, no lapse of time can make them so. They are not
injthemselves acts. They may serve to explain the' intention
with which acts were committed, but they cannot supply those
acts if they be not proved.
The next testimony is the deposition of general Wilkinson,
which consists of the letter already noticed, and of the comma-
nications made by the bearer of that letter.
This letter has already been considered by the supreme
court of the United States, and has been declared to import,
taken by itself or in connexion with Eaton's deposition, rather
au expedition against the territories of the United States. By
tliMt dedflicm I am boundi wjhfillier 1 fcoit^iiKrei.)ii U<Hr 4K>t« 0UI
I did concur in iu On this point the court Was unsuwnpusS
It is, howeyer, urged that the detkif ations of S wartvrput may
be connected with the letter and Used against coioael Burf.
Although the confession of one man cannot criminate} an*»
other, yet I am indined to think that, ovkaimtre inquiry in«
to probable cause, the declaration of Swattwout made on this
particular occasion, maybe used against colonel tBurr» My
reason for thinking so is, that tcdonel Burr's letter authorUea
Mr. Swartwout to speak in his name. He empowers Mn
Swartwont to make to general Wilkinson vetbal cQiniiiunica*
tions explanatory of the plans and designs Of Burr, w4|ich Burc
adopts as his own explanations. However inadmissible tbere^
fore, this testimony may be on a trial in cUef^ I am inclined tCr
admit it on this inquiry.
If it be admitted, what is its amount? Upon thitf point too, it
i^peaiB that the supreme court was divided^ I thefefOTe hold
asysclf at liberty to pursue my own opiniont which was, that th^
words **this territory must be revolutionized^" did not so
ckarly iq)ply to a foreign territoiy as to reject that sense which
would make them applicable to a territory of die United States^
it least so far as to admit of further inquiry into their meaning*
And if a territory of the United Sutes was to be revolutionit<i
ed, thoagh only as a mean for an expedition again$t a foreign
power, the act would he treason*
This reasoning leads to the conelusibn diat there is probable
cause far the allegation that treasonable designs were enter*
tained by the prisoner so late as July last, when this letter was
written*
It remains to inquire whether there is also probable cause to
hdieve, that these designs have been ripened into the crime it*
self by actually levying war against the United States*
It has been already observed, that to constitute this Crime,
troops must be embodied, men must be actually assembled;
and these are facts which cannot remain invisible. Treason
may be machinated in secret, but it can be perpetrated only in
open day and in the eye of the world. Testimony of a fact
which in its own nature is so notorious ought to bc unequivo-
caL The testimony now offered has been laid before the su-
preme court of the United States, and has been determined in
the cases of BoUman and Swartwout, not to furnish probable
cause for the opinion that war had been actually levied. What-
ever might have been the inclination of my own mind in that
i, I riiould fe^l much difficulty in departing from the deci«
dien made, unless this case could be clearly distinguished
finm it. I will, however, briefly review the arguments which
have been urged, and the facts now before me, in order to show
16
more dearly the panicolar opeimtion they have on my own
judgment.
The fact to be established is, that in pursuance of these de-
signs previously entertained, men have been actually assembled
for the purpose of making war against the United States; and cm
^e showing of probable cause that this fact h^ been committed,
depends the issue of the present inquiry.
The first piece of testimony relied on to render this fact pro-
bable, is the declaration of Mr. Swartwout, that ^^colonel Burr
was lewfing an armed body of 7,000 men • from the state of
New- York and the western states and territories, with a view
to carry an expedition against the Mexican provinces.'^ The
tenii ^^leinfing^^ has been said, according to the explanation of
the lexicons, to mean the embodying of troops, and therefore to
prove what is required. Although I do not suppose that Mr.
Swartwout had consulted a dictionary, I have looked into
Johnson for tiie term, and find its first signification to be ^to
raise,'' its second ^^to bring together." In common parlance, it
may signify the one or the other. But its sense is certainly decid-
ed by the fact. If when Mr. Swartwout left colonel Burr, which
must be supposed to have been in July, he was actually embo*
dying men from New-York to the western states, whatcould veil
his troops from hunian sight? An invisible army is not the in-
strument of war, and had these troops been visible, some testi*
mony relative to them could have been adduced. I take tho
real sense then in which this term was used to be, that colonel
Burr was raising, or in other Vords engaging or enlisting men
through the country described, for the enterprize he meditated*
The utmost point to which this testimony can be extended is,
that it denotes a future embodying of men, which is more parti-
cularly mentioned in the letter itself, and that it affords proba-
ble cause to believe that the troops did actually embody at the
period designated for their assembling, which is sufficient to
induce the justice to whom the application is made to commit
for trial.
I shall readily avow my opinion, that the strength of the
presumption arising from this testimony ought to depend
gready on the time at which the application is made. If soon
after the period at which the troops were to assemble, when
full time had not elapsed to ascertain the fact, these circum*
stances had been urged as the ground for a commitment on
the charge of treason, I should have thought them intided to
great consideration. I will not deny, that in the cases of Boll-
man and Swartwout, I was not perfectiy satisfied that they did
not warrant an inquiry into the fact. But I think every person
must admit that the weight of these circumstances daily Ai^
miqjshes. Suspicion may deserve great attention, when the
17
means of ascertaining its teal grounds are not yet possessed ;
but when those means are or may have been acquired, if facts
to support suspicion be not shown, every person, L think,
must admit, that the ministers of justice at least ought not of*
ficially to entertain iu This, I tfamk, must be conceded by all ;
but whether it be conceded by others- or not, it is the dictate
of my own judgment, and in the performance of ray duty I
can know no other guide.
The fact to be proved in this case is an act of public noto-
riety. It must exist in the view of the world, or it cannot
exist at all. The assembling of forces to levy war is a visible
transaction, and numbers must witness it. It is therefore ca-
pable of proof; and when time to collect this proof has been
given, it ought to be adduced, or suspicion becomes ground
too weak to stand upon.
Several months have, elapsed, since this fact did occur, if it
ever occurred. More, than five weeks have elapsed, since the
opinion of the aujpreme court has declared the necessity of
proving the fact, ii it exists. Why is it not proved?
To we executive government is intrusted the important power
of prosecuting those, whose crimes may disturb the public re-
pose,ior endanger its safety. It would be easy, in muchless time
than has intervened sitice colonel Burr has been alleged to have
assembled his troops, to procure affidavits establishing the fact*
If, in November or December last, a body of troops had been
assembled on the Ohio, it is impossible to suppose that affida-
vits jeatablishing the fact could not have been obtained by the
Jan of March. I ought not to believe that there has been any
remissness on the part of those who prosecute, on this impor-
tant and interesting subject ; and consequently, when at this
late period no evidence, that troops have been actually embo-
died, is g^ven, Fmust say, that the suspicion, which in the first
instance might have been created, ought not to be continued,
uidess this want of proof can be in some mani^ accounted
for. V^
It is stated by the attorney for the United States, that, as
affidavits can only be voluntary^ the difficulty of obtaining them
accounts for the absence of proof.
I cannot admit this position. On the evidence furnished by
this very transaction of the attachment felt by our western for
their eastern brethren, we justly felicitate ourselves. How in-
consistent with this fact is the idea, that no man could be
found who would voluntarily depose, that a body of troops had
actually assembled, whose object must be understood to be
hostile to the union, and whose object was detested and de-
feated by the very people who could give the requisite infor-
mation !
Vol. I. C
18
I cannot doubt that means to obtain information have been
taken on the part of the prosecution ; if it existed, I cannot
doubt the practicability of obtaining it ; and its nonproduction,
at this late hour, does net, in my opinion, leave me at liberty
to give to those suspicions which grow out of other circum-
stances, that weight to which at an earlier day they might have
been entitled.
I shall not therefore insert in the commitment the charge
of high treason. I repeat, that this is the less important, be-
cause it detracts nothing from the right of the attorney to pre-
fer an indictment for high treason, shouid he be furnished with
the necessary testimony.
The chief justice having delivered his opinion, observed,
that, as colonel Burr would be put on his trial for carrying on
a military expedition against a nation with whom the United
States were at peace, his case was of course bailable.
Mr. Wickham wished to say something as to the sum in
which colonel Burr should be recognised to appear.
Chief Justice.— I have thought a good deal on the subject,
but have formed no very deliberate opinion. Bail ought cer-
tainly to be required in a sum sufficiently serious to insure the
appearance of the party, but not so large as to amount to op-
pression. It has occurred to me, that, under all the circum-
stances of the case, ten thousand dollars would be about right,
and would avoid the two extremes.
Mr- Hay. — I have no doubt of Mr. Burros ability to pro-
cure bail for any sum which might be exacted, even without
asking for it. I do not think ten thousand dollars adequate ;
nor would I ask a larger sum if I did not think it could be
obtained wiliiout subjecting colonel Burr to any kind of incon-
venience. From the facility with which bail was offered a few
days ago, I have discovered a disposition in certain gendemen
of this place to relieve colonel Burr from the humiliation of an
imprisonment.
Mr. Wickham.*— I should suppose, sir, that five or six thou-
sand dollars would be sufficient. It should be recollected, that
colonel Burr is to give bail to answer the charge of a misde-
meanor only. He is here, among strangers. Perhaps, in no
part of the United States, has colonel Burr fewer acquaint-
ances than in Richmond. And however easy it might be for
him to procure bail among his friends or connexions, I am
very apprehensive he will not be able to obtain it here for so
19
large a sum as ten thousand dollars. With respect to his abi-
lity to procure bail for any amount, as stated by Mr. Hay, I
do expect that that observation, like some others of that gen-
deman, is not well warranted. Upon this point I am unable
to express any decided opinion, as it is a subject with which I
am personally unacquainted. But as to the spirit^ which, it is
insinuated by Mr. Hay, has been shown by certain 'gentlemen
to relieve colonel Burr, I am enabled explicitly to state the
opinions of others, of a very different nature. It is true that
two gentlemen stepped forward a few days ago, and relieved
colonel Burr from the horrors of a dungeon. Their sole ob-
ject was to assist a gendeman in distress, who had been drag-
ged here by a military force more than a thousand miles. Gren-
demen might be willing to be bound for two days, who would
reluctantly engage for a longer time. Besides, I have heard
several gentleman of great respectability, who did not doubt
but colonel Burr would keep his recognisance, express an un-
wiUingness to appear as bail for him, lest it might be supposed
they were enemies to their country. I hope this sentiment is
incorrect; but it certainly will have, its influence. I doubt very
much whether he can procure bail, considering his remote
sitnation from his friends, and the apprehensions just men«
tioned.
Mr. Hat.— <I did state, sir, my belief to be, that colonel
Burr could find bail for any sum which might be demanded.
Mr. Wickham has been pleased to say, that this observation,
like some others of mine, is not well warranted. I therefore
consider it my duty to state candidly and correctly the reasons
which have induced me to form that opinion. In the first
place; two gentlemen, having no acquaintance with colonel
Burr, on the first day of the examination voluntarily stepped
forward^ and offered themselves as his bail. This proves the
prevailing sentiment among certain gentlemen. This senti-
ment, we may fairly presume, is not confined to those two
gentlemen alone. Secondly; I have been well informed, that
colonel Barr could give bail in one hundred thousand dollars.
Mr. Wickham has not mentioned names, nor shall I state the
source of my information. I do not pretend to say, that this
large sum should be required. But when it is considered, that,
at the next court, evidence of assembling troops may be ad-
duced, which will constitute the crime of treason, and prevent
the appearance of colonel Burf^ I do think that a sum suffi«
ciendy large should be fixed on to insure that object.
Colonel Burr.— I had no expectation, sir, that anything
would be taken into consideration but the subject immediately
20
before you. Possibilities have, however, been gone into, which
are sorely out of the question. With respect to my ability to
find bail, I very mudi doubt it. Qnly one person ever told
me that he was willing to be my baH;^nd I much question
whether it will be in my powerto procure bail at this time for
any sum. It is true, that, by the courtesy of two gentlemen, I
was relieved for twenty»four hours. A man may be willing to
be bail for a day, or for two days, who would not engage
for a longer time. I am sensible,- tOQ, that many will be re*
Strained by the circumstances meotionedby my counsel. Gen*
tlemen are unwilling to expose themselves to animadversion*
As to my pecuniary circumstances, it is pretty, well known
that government has ordered niy property to be seized, and
that the order has been executed. My property to the amount
of upwards of forty thousand dollars has been lost, and my
credit has consequently been much impaired*
Chief Justice. — If colonel Burrliadbeen in the circle of
kis friends, it might have made a difference as to the sum in
which bail would be required. It b supposed that, under his
present circumstances, bail to the amount of ten thousand dob
lars may be given. On a mere question as to bail| in this stage
of the business, and from the proofs already adduced, the
charge of treason ought not to be considered.
If bail for ten thousatid dollars cannot be had, I will hear
an application to reduce the sum.
•
Mr. Hat. — As long as that impression remains, no person
will offer till the sum shall be reduced to its.minimum.
.1 ' ■
Chief Justice.— I shall certainty not very readily yi^d to
an application to reduce the sum. And should it, he made,^you
shall have notice of it.
The judge adjourned till three o'clock, in order to pve the
prisoner an opportunity to procure bail. At the hour appoint*
ed, he again attended at the capitol, when colonel Burr, with
iive securities, entered into a recognisance in the supoi of ten
thousand dollars for his appearance at the next circuit court of
the United States for the Virginia district, which will com*
mence on the 22d day of May neact.
r
\
21
OPINION
or SUPREME COUBT Or TBE UNITES STATET,
Beliv€rrd byi CAi^ Jtistice Marsball^ on the 2Ut of fcbruary^
. 1907 i r^errcd to in the trials of caUnel Bur tm "
The United States 1 ij.. ^ * . •
• ^g/ L Habeas,corpu9^ op a commitment
BoUman and Swartwout. J ^
THjS prUonera having been broujitit. before this court on^ 4
writ of habeas corptiSy and the testinipny on which they were
committed having beei^ fully examined and attentively consir
^Hbd, the court ifi now to declare the law upon (h^ir case.
Thia being a mere inquiry, which, without deciding upom
guilty precedes the. institution of a prc^ecutk^n^y^e quesdop to
be determined is, whether the accused shall be discharged or
hcM to trial ; and if the latter, in what place they are to be
tried, and wh<^ther they shall be confined, or admitted to Vail.
^^ If," says a very learned and acc^rate commentator, ^' upon tfai^
inquiry it nuuiifestiy appears that no such crime has been oom«
milKcdt or that the suspicion entertained of the prisoner was
wholly groundless, in such cases only it is lawful totsdly to dis«
chsfcgM Mm ; othtei:wise he must either be committed txi prU
sott^rgMFebail." . ,
The sp^fic charge brought against the prisoners is treason
in levying war against the United States.
As tfafre is no crime which can more e^ite and agitate; the
passtoni •f fi|ien than treason, no charge demands more from
the.tribuii||| l)efore which it is made a deliberate and temperate
mqwy* Whether this inquiry be directed to the fact or the
iMWf jnone cao^ be more solemn; none more important to the
citizen or to the government; none can more afiea the aa£ety
dFboth.
To prevent the possibility of those calamities which result
frovs the extension of treason to offences of minor importanoei
that great fundamental law which defines and limits the vai^
rious departments of our government, has given a rule on the
sabj/ect, both to the legislature and the courts of America^
which neither can be permitted to transcend*
^* Treason against the United States shall consist only la
levying^ war against them, or in adhering to their enemieSf
giving^ them aid and comfort/'
To constitute that specific crime for which the prisoner!
DOW before the court have been committed, war must be ac«
rnaOy levied against the United States* However flagitioite
mav be the crime of conspiring to subvert by force the |[o-
24
t.
Mexico •etxsXB %o faiive4>een the first and most matured p^rt of
his plan, if indeed it did not constitute a distinct and separate
plan, upon, the success of which other schemes atijll more «ttl«
pable, but Mt yet' well digested, might depends Maps md
other information preparatory to its execution, and which would
rather indicate thnt it was the immediate object, had been pro-*
cur^; and for a considerable time, in repeated conversations,
the whole effosia of colonel. Burr were directed to prove to the
witness, who was to have held a high command under Mm, the
practicability of the enterprize, and in explaining to him the
means by which it was to be effected.
This deposition exhibits the various schemes of colonel Bun;,
and its materiality depends on connecting the prisoners at th#
bar in such of those schemes as were treasonable* For this
puipose the affidavit of general Wilkinson, comprehending in its
body the substance of a letter from colonel Burr^ has been of*
fered and was received by the circuit court. To the admission
of this testimony great and serious objections have been made*
It has been urged, that it is a voluntary^ or rather an extraju-
dicial affidavit made before a person not appearing to be a ma*
gistrate, and contains the substance only of a letter, of which
the original is retained by the person who made the affidavit.
The objection that the affidavit is extrajudicial, resolves it«
self into the question, whether one magistrate may commit on
an affidavit taken before another magistrate : For if he may, an
affidavit made as the foundation of a commitment, ceases to be
extrajudicial, and the person who makes it would be as liable
to a prosecution for perjury as if the warrant of commitment
had been issued by the magistrate before whom the affidavit
was made*
To decide that an affidavit made before one magistrate
would not justify a commitment by another, might in many
cases be productive of great inconvenience, and does not ap«
pear susceptible of abuse if the verity of the certificate be esta*
blished. Such an affidavit seems admissible on the principle
that before the accused is put upon his trial, all the proceedings
are ex parte* The court therefore overrule this objection.
That which questions the character of the person who has on
this occasion administered the oath is next to be considered.
The certificate from the office of the department of state has
been deemed insufficient by the counsel for the prisoners ; be-
cause the law does not require the appointment of magistrates
for the territory of New-Orleans to be certified to that office ;
because the certificate is in itself informal, and because it does
not appear that the magistrate had taken the oath required by
the act of conrress.
The first of these objections is not supported by the law of
25
the case, and the second may be so easily corrected, retaining
however any final decision, if against the prisoners, until the
correction shall be made. With regard to the third, the ma-
gistrate must be presumed to have taken the requisite oaths,
since he is found acting as a magistrate.
On the admissibility of that part of the affidavit which pur-
ports to be as near the substance of the letter from colonel Burr
to general Wilkinson as the latter could interpret it, a division
of opinion has taken place, in the court. Two judges are of
opinion that as such testimony delivered in the presence of the
prisoner on his trial would be totally inadmissible, neither can
it be considered as a foundation for a commitment. Although
in making a commitment the magistrate does not decide on the
guilt of the prisoner, yet he does decide on the probable cause,
and along and painful imprisonment may be the consequence
of his decision. This probable cause therefore ought to be
moved by testimony in itself legal, and which, though from the
nature of the case it must be ex parte, ought, in most other re-
spects to be such as a court and jury might hear.
Two judges are of opinion that in this incipient stage of the
prosecution an affidavit stating the general purport of a letter
may be read, particularly where the person in possession of it
is at too great a distance to admit of his being obtained, and that
a commitment may be founded on it.
Under this embarrassment it was deemed necessary to look
into the affidavit for the purpose of discovering whether if ad-
mitted, it contains matter which would justify the commitment
of the prisoners at the bar on the charge of treason.
That the letter from colonel Burr to general Wilkinson re-
lates to a military enterprize meditated by the former has not
been questioned. If this enterprize was against Mexico, it
would amount to a high misdemeanor ; if against any of the ter-
ritories of the United States, or if in its progress the subversion
of the government of the United States, in any of their territo-
ries was a mean clearly and necessarily to be employed, if such
mean formed a substantive part of the plan, the assemblage of
a body of men to efkct it would be levying war against the
United States.
The letter is in language which fiimishes no distinct view of
the design oCthe writer. The cooperation, however, which ia
stated to have been secured, points strongly to some expedi-
tion against the territories of Spain. After making these ge-
neral statements the writer becomes rather more explicit and
says, ^Burr's plan of operations is to move down rapidly from
die falls on the 15thof November with the first 500 or 1000
men in light boats now constructing for that purpose, to be at
Natchez between the 5th and 15th of December, there to meet
Vol. I. J}
26
Wilkinson': then to determine whether it will be ei^edient in
the first instanee to seize on or to pass by Baton Rouge- The
people of the country to which we are going are prepared to
receive us. Their agents now with Burr say that if we will
protect their religion and will not subject them to a foreign
power, in three weeks all will be settled."
There is no expression in these sentences which would jus*
fify a suspicion that any territory of the United States was the
object of the expedition.
For what purpose seize on Baton Rouge ? why engage Spain
against this enterprize, if it was designed against the United
Sutes?
"The people of the country to which we are going are pre-
pared to receive us." This language is peculiarly appropriate to
a foreign country. It will not be contended that the terms would
be inapplicable to a territory of the United States, but other
terms would more aptly convey the idea, and Burr seems
to consider himself as giving information of which Wilkinson
was not possessed* When it is recollected that he was the go«
vernor of a territory adjoining that which must have been
threatened, if a territory of the United States was threatened,
and that he commanded the army, a part of which was station-
ed in that territory, die probability that the information com«
municated related to a foreign country, it must be admitted,
gains strength.
"Their agents now with Burr say that if we will protect
their religion and will not subject them to a foreign power, in
three weeks all will be setded."
This is apparently the language of a people who, from the
contemplated change of their political situation, feared for their
religion, and feared that they would be made the subjects of a
foreign power. That the Mexicans should entertain these
apprehensions was natural, and would readily be believed*
Xhey were, if the representation made of their dispositions
be correct, about to place themselves much in the power of
men who professed a faith different from theirs, and who by-
making them dependent on England, or the United States,
would subject them to a foreign power.
That the people of New*Orleans, as a people, if really enga-
ged in the conspiracy, should feel the same apprehensions, and
require assurances on the same points, is by no means so ob-
vious.
There certainly is not in the letter delivered to general Wil«
kinson, so far as that letter is laid before the court, one syllable
which has a necessary or a natural reference to an enterprize
against any territory of the United States.
. That the bearer of this letter must be considered as acquaint*
27
ed with Its contents, is not to be controverted. The letter and
his own dicclarations evince the fact*
After stating himself to have passed through New- York and
the western states and territories, without insinuating that he
had perfionned on his route any act whatever, which was con^
nected with the enterprize, he states their object to be ^^to car*
ry an expedition to the Mexican provinces.''
This statement may be considered as explanatory of the let-
ter of colonel Burr, if the expressions of that letter could be
thought ambiguous.
But there are two other declarations made by Mr. Swartwout,
which constitute the difficulty of this case. On an inquiry .
from general Wilkinson, he said, ^^ this territory would be re-
volutionized,* where the people were ready to join, and that
there would be some seizing, he supposed, at New-Orleans*
If these words import that the government, established by
the United States in any of its territories, was to be revolution-
ized by force, although merely as a step to, or a mean of exe-
cuting some greater projects, the design was unquestionably
treasonable, and any assemblage of men for that purpose would
amount to a levying of war* But on the import of the words a
difference of opinion exists.
Some of the judges suppose they refer to the territory
against which the expedition was intended, others to that in
which the conversation was held. Some consider the words,
if even applicable to the territory of the United States, as al«
kMiing to a revolution to be effected by the people, rather than
by the party conducted by colonel Burr.
Butwh^er this treasonable intention be really imputable
to the plan or not, it is admitted that it must have been carried
into execution by an open assemblage of men for that purpose,
previous to the arrest of the prisoner, in order to consummate
the cnmt as to him; and a majority of the court is of opinion,
dnt the conversation of Mr. Swartwout affords no sufficient
proof of such assembling.
The prisoner stated, that ^ colonel Burr, with the support
of a powerful association, extending from New- York to New-
Orleans, was levying an armed body of 7,000 men, from the
state of New- York and the western states and territories, with
a view to cany an expedition to the Mexican territories." ,
That the association, whatever may be its purpose, is -not
ti«ason, has been already stated. That levying an army may or
may not be treason, and that this depends on the intention
with which it is levied, and on the point to which the parties
Ittve advanced, has been also stated. The mere enlisting of
men without assembling them, is not levying war. The ques-
tion then is, whether this evidence proves colonel Burr to have
28
Advanced ao far in levying an army, as actually to have assem*
bled them.
It is argued, that since it cannot be necessary that the whole
7,000 men should have assembled, their commencing their
march by detachments! to the place of rendezvous, must be
sufficient to constitute the crime.
^ This position is correct, with some qualification. It cannot
be necessary that the whole army should assemble, and that
the various parts which are to compose it should haVe com-
bined. But it is necessary there should be an actual assem-
blage, and therefore this evidence should make the fact une-
quivocal«
The travelling of individuals to the place of rendezvous
would perhaps not be sufficient. This would be an equivocal
^act, and has no warlike appearance. The meeting of particu-
lar bodies of men, and their marching from places of partial to
a place of general rendezvous, would be such an assemblage.
The particular words used' by Mr. Swartwout are, that
colonel Burr was levying an armed body of 7,000 men* If
the term levying, in this place, imports that they were assem-
ble<L then such fact would amount, if the intention be against
the United States, to levying war. If it barely imports that he
was enlisting or engaging diem in his service, the fact would
not amount to levying war.
It is thought sufficiendy apparent, that the latter is the sense
in which the term was used. The fact alluded to, if taken ia
the former sense, is of a nature to force itself upon the public
view, that, if the army had been actually assembled, either to-
gether^ or in detachments, some evidence of such a&sembUngp
would have been laid before the court.
The words used by the prisoner in reference to seizing at
New-Orleans, and borrowing pei4iaps by force from the bank^
though indicating a design to rob, and consequendy importing^
a high offence, do not designate the specific crime of levying
war against the United States.
It is, therefore, the opinion of a majority of the court, thaty
in the case of Samuel Swartwout, there is not sufficient evi-^
dence of his levying war against the United States to justify
his commitment on the charge of treason.
That both the prisoners were engaged in a most culpable
enterprize against the dominions of a power at peace witli the
United States, those who admit the affidavit of general Wil«
kinson cannot doubt. But that no part of this crime was com*
mitted in the district of Columbia, is apparent. It is therefore
the unanimous opinion of the court, that they cannot be tried
in this district.
The law read on the part of the prosecution is understood
29
to applf only to offences committed on the high seas, or in any
river, haven, bason, or bay, not within the jurisdiction of any
pfltrticular state. In these cases t)iere is no court which has
particular cognizance, of the crime, and'thereCcM*e the place in
which the criminal shall be apprehended, or, if he be a)>pre*
hended where no court has exclusive jurisdiction, that to
which he shall be first brought, is substituted for the place in
which the offence was committed. ^
But in this case, a tribunal for the trial of the offence,
wherever it may have been committed, had been provided
by congress; and at the place where the prisoners were seized
by the authority of the commander in chief, there existed such
a tribunal. It would too be extremely dangerous to say, that
because the prisoners were apprehended, not by a civil magis*
trate, but by the military power, there could be given by law
a right to try the persons so seized in any place which the ge-
neral might select, and to which he might direct them to be
carried*
The acts of congress, which the prisoners are supposed to
have violated, describe as offenders d)ose who begin or set on
foot, or provide or prepare the means for any military expedi*
tton or enterprize to be carried on from thence against the do*
minions of a foreign prince or state, with whom the United
States are at peace.
There is a want of precision in the description of the of-
fence, which might produce some difficulty in deciding what
cases would come within it. But several other questions arise,
which a court, consisting of four judges, finds itself unable to
decide ; and therefore, as the crime with which the prisoners
stand charged has not been committed, the court can only
direct them to be discharged. This is done with the less re-
luctance, because the disclmrge does not atquit them from the
offence, which there is probable cause for supposing they have
committed; and if those whose duty it is to protect the nation
by prosecuting offenders against the laws shall suppose those
who have been charged with treason to be proper objects for
punishment, they will, when possessed of less exceptionable
testimony, and when able to say at what place the offence has
been committed, institute fresh proceedings against them.
The order of the court was as follows :
The United States '\
vs. V On a writ of habeas corpus.
Sivartwout. j
The arguments of die attorney general, and of the at-
torney of the United States for the district of Columbia,
so
and the ailments of the counsel for the prisoner having been
heard ; and the record of the circuit court for the county of
Washington, containing the order by which the said Samuel
Swartwout was committed on the charge of treason in levying
war ag^nst the United States, and the testimony on which the
said commitment was made, having been inspected and at-
tentively considered, the court is of opinion that that testimony
does not furnish probable cause for supposing that the said Sa*
muel Swartwout levied war against the United States, and
doth therefore direct, that he be forthwith discharged from the
custody of the marshal.
The same order with regard to Bollman.
THE TRIAL
I
or
COLONEL AARON BURR
CITY OF RICHMOND, Fridat, 22d May, 1807.
Court of the United States for the fifth circuit and iSsirici
of Virginia*
PRESENT^OHN Marshall, chief justice of the United
States; and CtrusGriffik, judge of the district of Virginia.
The court was opened at half past twelve o'clock ; when
colonel Aaron Burr appeared, with his counsel, Messrs. Ed*
mund Randolph, John Wickham, Benjamin Botts, and John
Baker.
Counsel for the prosecution ; Messrs. George Hay, district
attorney, William Wirt, and Alexander Mac Rae.
The clerk having called the names of the gentlemen who
had been summoned on the grand jury, Mr. Burr's counsel
demaaded a sight of the panel; which was shown to them:
when Mr. Burr addressed the court to the following eifect:
May it please the court,
Before any further proceeding with regard to swearing
Ae jury, I beg leave to remark some irregularity that has taken
place in summoning part of the panel. This is the proper
dme to make the exception. I understand that the marshal
iu:ts not under an act of congress, but a law of the state of Vir-
ginia, by which he is required to summon twenty-four free«
holders of the state to compose the grand jury. When he has
sammoned that number, his function is completed. He cannot
on any account summon a twenty-fifth. If, therefore, it can
be made to appear, that the marshal has struck off any part of
the original panel, and substituted other persons in their
flead, the summons is illegal. Such is the law and the dictate
32
<»f true policy; for in important cases, like the present, a dif-
ferent course would produce the most injurious consequences.
I consider it proper to ask the marshal and his deputies, what
persons they have summoned, and at what periods : whence it
may be known, whether some have not been substituted in
place of odiers struck off the paneU When we have settled
this objection, (^all proceed to exceptions of a different na-
ture. '
Mr. BoTTs observed, that it was the 29th section of the ju«
dicial act, which refers to the state law, besides a distinct act,
which enumerates other duties; that neither of these laws
specified any particular mode by which marshals were (o sum*
mon juries in different districts. By the first section of the
Virginia act, the sheriff is to summon twenty-four freeholders,
any sixteen of whom appearing are to constitute a grand jury*
The first section does not state that he is to make a return,
but a distinct section inflicts a penalty, if he violate the duties
prescribed by the first section; 'that is, if he fail ^^ to summon
a grand jury, and return a panel of their names." Colonel
Burr is anxious to have nothing more than a fair trial. The
reports circulated, and prejudices excited against him, justify
a strict attention to his rights. He therefore asks the strictest
scrutiny into past and subsequent measures. An important in-
terest is involved in the authority of the grand jury. And if
there be any irregularity in the marshaVs summons, it ought
now to be rectified. By the act of Virginia, a sheriff, and by
the act of congress a marshal, are mere ministerial officers
bound to discharge certain duties. He is to summon twenty-
four jurors. When that act is done, it is irrevocable, and his
duty at an end. This court only possesses the authority to
excuse, any of those who have been summoned, and to direct
the marshal to substitute others, till the necessary quorum be
completed.
Mr. Botts further observed, that he had no intention of cast-
ing the slightest imputation on the marshal for his conduct in
this transaction; that his honourable character placed him
above suspicion, and the fault, if any, must have arisen from
ofiicial misconceptions ; that he did not propose to interrogate
major Scott in any manner that might possibly criminate him;
but that the court had a right to inquire, and, if any error was
committed, to correct it. That if he was overruled in this mo-
tion, he would then crave leave of the court .to produce testi-
mony as to the facts: that he took it for granted, that if a sin-
gle moment intervened between the summoning of a juror and
the meeting of a court, the court alone had the power to dis«
charge him; that with regard to the present panel it would
33
appear, fhzt the marshal, after summoning one individual, had
notified another to attend; in other words, he had summoned
him according to the legal definition of the term ^* summons."
That this was not the duty of the marshal; thai when the ori-
ginal panel was complete, his duty was at an end,' and he
must return that ven^ panel precisely, without any addition*
What mischiefs might not result from a diflFerent practice, par-
ticularly in cases of extreme importance, where the gorern-
ment was concerned, «ince the marshal himself depended on
the government for the duration of his commission?
Mr. Botts therefore contended, that the ministerial duties
of a marshal ceased with the summons which he gave ; and
that, if the jurors did not appear, it was the privilege of the
court to supply any deficiency. He cited the decision of the
supreme court of the United States in the case of Marbury v.
Madison, to show, that when the ministerial duties of an offi-
cer were discharged, his power necessarily ceased, and his act
was irrevocable. This doctrine was of universal application in
law, both in America and England. It was applicable to a
sheriflf, after he had served a common writ of ^eri facias. If
he summon a petit juryman, who fails to appear before the
court, it is the rieht of the court alone to fine or to excuse
him* Mr. Botts then concluded, that he would ask the mar-
shal, who were the twenty-four whom he had first summoned;
for that may constitute the grand jury. Every one beyond that
number was illegally summoned. It was the 'right of colonel
Burr to demand such a purgation of the panel.
Mr. Hat, the district attorney, observed, that he was not
prepared to make any observations upon this question, as it
was a point which he had never before had any occasion to
consider; that the proposition was, however, of no great im-
portance, since, if any of them were set aside, there would
still be a sufficient number to constitute a grand jury; or the
deficiency might be supplied by a new summons among the
bystanders. If there were, in reality, any objection to the re-
gularity of the summons, he was wiUing to accommodate the
opposite counsel ; that he was not certain how far it was strictly
proper to interrogate, or examine into the time of summoning
the different members of the panel, as he had not been very
conversant with business of this kind. He was, however, con-
tent that the court should decide ; and if it should be their
opinion that the marshal should be interrogated, how many
jurymen he had summoned, and when he had discharged
them, he should feel perfectly satisfied.
Mr. WiCKHAM-^Before we go into this inquiry, we de-
dare, that we mean no personal imputation upon the respecta-
VoL. I. E
34
ble gendemta who is the marshaL Hb iafentions were cer*
tainly pure. It is an error of judgment alone to which we ob*
ject* But in the present case, where such important interests
are at suke, and where such unjustifiable means have been
used to prejudice the public mind against colonel Burr,
it 18 his right to take every advantage which the law gives
him. We are prepared to show, that when a person is bound
in a recognisancife, he has a rig^t, at this period of the busi*
ness, to come before the court widi his exceptions to the grand
jury; and if in any other case, why not in one of such deep
importance as the present? In support of this position, Mr.
Wickham cited 2 Hawkins's Pleas of die Crown, page 307,
sect. 16, and 3 Bacon's Abridgment, page 7^S* Whether we
might afterwards file a plea in abatement for the error com*
mitted, is not now to be discussed. It is colonel Burros anxious
desire, that this whole aSair should terminate here, and that
this grand jury may determine his case.
The chief justice called for the law of Virginia.
Mr. Hay read it«— -Revised Code, page 100, sect. 2. — The
construction put upon this part of the law seems to me far more
rigid than sound sense warrants. By this law, the marshal is
empowered to select twenty-four freeholders, legally qualified
to serve on the grand jury. The officer, in many cases neces*
sarily ignorant of the situation of an individual, summons him
to attend. The person informs him, that, from some personal
misfortune, some domestic calamity, or some indispensable bu-
siness, it is impossible for him to attend. We ask, whether the
accurate construction of this law forbids him to summon another
in his place ? Where is the legal authority to prove, that when
he has once summoned twenty-four jurymen, his ministerisd
function is at an end? The moment it appears in court, that
the legal number of jurors is not present, he is to fill up his
panel from the bystanders. We appeal to the candour of the
opposite counsel, to point out the real distinction between the
two cases. Why should the marshal have the right to fill up his
panel, when it is once ascertained before the court, that some
of the jurymen have not actually attended, and yet deny him.
the right of substituting others in the place of those he has
summoned, but who, he is satisfied, before the meeting of the
court, cannot attend? Instead of a difference, the two cases
are strikingly parallel. What the fact was, Mr. Hay said he
knew not, but he believed that some of those who were said
to be substituted had not been positively summoned by the
marshal, but had been merely applied to, to know whether they
could attend.
35
Mr. WiCKRAM contended, that the counsel for the United
States had not fairly met the question. There is a doubt whe-
ther colonel Burr has not a right to come forward with his ex<*
ceptions now to the grand jury. As the authorities on this
subject are short, he would take the liberty of reading them
to the court. (He read those he before cited.) From these au-
tliorities it manifestly appears, that a person bound in a recog-
Msance, had a right, before the grand jury were sworn, to state
his exceptions to the mode of impaneling them. It is for this
reason that colonel Burr has, in this stage of the business,
come forward with his objections. Mr. Hay contends, that
our construction of the law is more rigid than sound policy de-
mands* Bat when the words of the law are obvious, why
should we resort to a dubious construction ? ^' Ita kx scripta
estm^^ But if we are to wander into the wide field of policy,
how con^pletely would it bear against the gendeman's cause !
God forbid, sir, that I should utter the slightest imputation
upon the character and official conduct of major Scott ; they
soar above suspicion. But if once the marshal, who holds his
commission at the will of the government, were permitted to
alter the panel as he pleased, the life of every citizen in this
state would be held at his pleasure. It is therefore essentially
important, that the ministerial officer should rigidly pursue the
statute from which he derives his authority. And what is his
duty in the present instance ? He is to summon twenty-four
freeholders to serve on the grand jury^ any sixteen of whom
may constitute a quorum. Mr. Hay had declared, that this pro-
vision was mere matter of form ; tor if there be not a sufficient
number present to constitute a quorum, the marshal may make
up to the full number twenty-four. But that is not the fact. If
sixteen jurymen attend, the marshal cannot add one more. Let
us then apply a suppositious case. The marshal, if notified that
one of the jury whom he has summoned cannot attend, is au-
thorised, according to Mr. Hay's doctrine, to summon a sub-
stitute* It is no impediment to the exercise of this authority,
that there be the legal quorum of sixteen remaining upon the
panel; he may proceed to summon substitutes till he com-
jdetes the whole number twenty-four. And yet, if the case
were to happen in court, the marshal would certainly have no
authority to complete the whole number. Why then suppose
such a difference of authority in and out of court? Why not
rather suppose, that the marshal has no authority to do that
out of court, which he cannot do before the court* Let us
8iq>pose another case* A grand juror has been summoned for
several weeks before the meeting of the court. The bare au-
diority of the marshal is sufficient, according to this doctrine,
to excuse him from serving, and to substitute another in his
36
place, only one hour before the meeting of the court. Mr.
Wickham declared he could mention the case of a man who
had been excused from this very panel.
Major Scott (the marshal.) — Name him, sir: I demand his
name.
Mr. Wickham declared, that he meant no imputation upon
major Scott, but he would not submit to such interruptions*
If no sufficient excuse is given by the absent juror, he is sub-
ject to a fine. Is it then contended, that the marshal is to
judge in the place of the court ? not only to relieve the pereon
of the juror, but his property also from die fine ? The words
of this law are too plain to be mistaken. It admits of no lati-
tude of construction. But if the marshal has really transcend-
ed his authority, yet I do not hesitate to declare my opinion,
that he intended to discharge his duty with fidelity. It was
only an error in judgment, to which all .men, however well
versed in the law, are liable.
Mr. Hay. — Will the court indulge me with a single addi-
tional remark? I stated before, that when the marshal found,
that one of the jury whom he had before summoned could not
attend, he was authorised to summon a substitute. Mr. Wick-
ham, however, contends, that the marshal cannot summon
others, after sixteen have appeared* But for what reason? Be-
cause there is, in reality, no occasion for it. The object of the
law is already attained. The grand jury is complete, and it is
unnecessary to take up further time, when the grand juiy is
legally full. But before the court convenes, how is it possible
for the marshal to know how many of those summoned will
attend? According to the doctrine of the opposite counsel,
there may be no grand jury.
The chief justice inquired, whether the question had ever
come before the state courts ?
Mr. Randolph. — Not, sir, to my knowledge. In nearly
thirty years practice, (and a considerable part of that time I
was attorney general for the commonwealth) no occasion has
occurred for such an objection. I have never seen a case
where it was so absolutely necessary to assert every privilege
belonging to the accused, as in this. But as to the right itself^
abstractedly considered, I have never hesitated a moment
about its existence. It is written in broad intelligible characters.
Sir, if we ever submit to these relaxations of the rights of the
accused, a time may possibly come, when we may lament the
precedent we have established ; when men less virtuous than the
present respectable marshal, shall succeed to his functions. But
the question in the present case is, not what has been the prae«.
37
tice in the state. courts, but what is the right? If this right has
never been before asserted, it is because there never was an oc«
casion which so imperiously demanded it as the present; because
there never, was such a torrent of prejudice excited against any
man, btfore a court of justice,* as against colonel Burr, and by
means which we shaU presently unfold.
Chief Justice.— As this question has never been decided
before the state courts, we must refer to the words of the act of
assembly. There can be no doubt that this is the time when the
accused has a right to take exceptions to the jury ; and the only
doubt can be, is this a proper exception i The marshal is au-
thorised by law to summon twenty-four jurymen ; but he is not
to summon a twenty-fifth. Of course, the twenty-fifth is not le-
gally summoned, unless he has the power to discharge a person
already summoned. He has no such power, unless the jury be
composed of bystanders. The twenty-four first summoned must
compose the jury, sixteen of whom constitute a quorum. It fol-
lows, therefore, that no one can be on the grand jur}', unless he
be one of the twenty-four first summoned, or one who has been
selected from the bystanders by the direction of the court.
When the panel has been once completed by the marshal, its
deficiencies can be supplied only from the bystanders.
The chief justice further observed, that he was not well ac-
quainted with the practice in the state courts ; but he believed
the practice of sheriffs to be, to excuse a man summoned on the
jury, if they are satisfied that his excuse is reasonable. So it
may have been with the officer of this court, who acted, he had
no doubt, with the most scrupulous regard to what he believed
to be the law. That the courts however, thought the marshal
had no such dispensing power. One very obvious reason against
die marshal's possessing this power of substitution, is, that if a
person summoned should come into court, and prove that he
had been actually summoned, he certainly would be on the
grand jury, if one of the twenty-four first summoned. The ge-
neral principle is, that when a person is put in the panel he
stands upon it, and cannot be displaced by the marshal. There
18 an evident distinction between actually summoning a grand
jurynian, and merely talking to a person about summoning him.
The court is therefore of opinion, that a person substituted in
the place of one actually summoned, cannot be considered as
being on the panel.
Mr. Burr. — The court having established the principle, we
moat ask Uieir aid to come at the facts. We wish to know,
when certain persons were summoned, when discharged, and
whether other persons were substituted in their stead.
The marshal said, that he had not the least objection to state
an die facts necessary to be known on this occasion. A few
38
4
days ago he had received a letter from colonel John Taylor, of
Caroline, one of those whom he had summoned on the jury, in
which he states, that a hurricane of wind had destroyed his car-
riage-house, and with it his carriages, so that he could not use
them; and that his indisposition prevented his riding to Rich-
mond on horseback. This letter he had laid before both their
honours, and the chief justice had deemed his excuse reasona-
ble. He had then summoned Mr. Barbour to serve in colonel
Taylor's place. He had also received a letter from Mr. John
Macrae, informing that he was going to leave the state for
his health. He had in consequence summoned doctor Foushee
in his place. The marshal added, that he felt it to be his duty
to bring twenty-four jurymen into court, and acted upon this
principle.
The court decided, that Mr. Barbour and Dr. Foushee, the
substituted persons, were not on the grand jury.
Mr. Burr. — I understand that the panel is now reduced to
sixteen, and that this is the proper time to make any other ex-
ceptions to the panel. It is with regret, that I shall now proceed
to exercise the privilege of challenging for favour. In exercising
this right, I shall perhaps appeal to the authority of the court to
try these jurors. Lest it may be contested, it is better to set-
de the principle first.
Mr. Hat, without directly contesting, called for the law to
justify the application.
»
Mr. Burr, — Let it be distinctly understood, that I clain^ the
same right of challenging " ior favour*'* the grand jury, that I
have of challenging the petit jury. I admit, that it is not a pe-
remptory challenge, but that I must show good cause to support
the challenge. It will be of course necessary td appoint triers
to decide, and before whom the party and the witnesses to prove
or disprove the favour, must appear.
Mr. BoTTs. — There can be no question, that a peraon stand-
ing in the situation of colonel Burr, may challenge the jury for
favo\ir. In civil cases, any individual may challenge a jury for
favour or partiality to his antagonist ; a fortiori, it must exist in
criminal cases. Mr. Botts here cited authority in support of his
principle, and admitted, that the cause of challenge must be
proved by testimony ; that it was necessary to prevent such im-
purity from creeping into the comniencement of this trial, as
must contaminate all its subsequent stages ; that no reflection
against the integrity of the present jurors was intended ; but in
principles of plain common sense it was proper to remove every
cause that might .defeat the purposes of justice.
Mr. Hat disavowed the intention of opposing soibstantisd
39
exceptions, «nd admitted the law to be as stated by the opposite
couMeL
Mr. Burr. — I shall, then, proceed to name the persons and
causes of challenge. The first I shall mention is William B.
Giles, against whom there are two causes of challenge. The
first is a matter of some notoriety, because dependent on certain
documents or records: the second is a matter of fact, which
must be substantiated by witnesses. As to the first, Mr. Giles,
when in the senate of the United States, had occasion to pro-
nounce his opinion on certain documents by which I was con-
sidered to be particularly implicated. Upon those documents
he advocated the propriety of suspending the writ of habeas cor-
pus* The constitution however forbids such suspension, except
m cases of invasion or insurrection, when the public safety re-
quires i^ It was therefore to be inferred, that Mr. Giles did
suppose, that there was a rebellion or insurrection, and a public
dniger, of no common kind* It is hardly necessary to observe,
diat with this rebellion, and this supposed danger, I myself had
been supposed to be connected. Perhaps this may be a sufficient
reason to set aside Mr. Giles. But if not, I shall endeavour to
establish by evidence, that he has confirmed these opinions by
public declarations ; that he has declared that these documents,
involving me, contained guilt of the highest grade.
Mr. BoTTs.^— There is no necessity of adding any thing to
jhe observations of colonel Burr. If the right of challenge
exists, the right to try the challenge exists also. But while I am
up, i will declare, that no reflection is intended to be made on
tbe character or conduct of Mr. Giles. That gentleman will be
candid enough to admit, that there is not the least design to
wound bis feelings. It is with the utmost reluctance that colonel
Burr has prevailed upon himself to advance this exception. I
hare authorities, however, to prove, that these two causes are
auficicnt to disaualify Mr. Giles. The first relates to his public,
tbe second to his individual conduct.
Mr. Hay. — How many of the panel does the coiuisel mean
to object to ?
Mr. BoTTs. — Only two.
Mr. Giles. — As to exceptions to myself personally, I can
have no objection to have them tried. The court will, however,
perceive the delicate situation iii which I shall be placed. The
triers will have to interrogate witnesses, and the result either
way is ineligible. I have no objection to state to the court every
impression I have ever had upon this subject. But to culling
witnesses to detail loose conversations, so liable to be misunder-
stood, forgotten, or misrepresented, I am certainly opposed.
I
40
Mr. Hat. — I was about to make a propositkm which might
relieve us from all this useless embarrassment, and which might
eratify the views of the accused. If the gendemen who are cbal*
lenged on die jury will consent to withdraw themselves, I can
have no objection. I am content that every one who has made
declarations expressive of decisive opinion, should be with-
drawn from the jury. I am not disposed to spend time on such
points as these.
Mr. Burr. — It will certainly save time, and I assent to the
proposition.
Mr. Giles. — The circumstances which have just occurred
place me in an unpleasant situation. I have no objection to dis-
close, in the usual Way, with candour, the real state of my mind
in relation to the accused. But I have an objection to the intro-
duction of witnesses to prove casual expressions, which are so
liable to be misconceived. In the present state of things, expres-
sions might be imputed to me which I never used, or expressions
which I really used might be mistaken or misrepresented by the
witness ; or the witness might deduce inferences from my ex-^
pressions which they did not justify. It was by no means agree-
able to me to have been summoned on this grand jury. But for
some time past I have invariably pursued this maxim : ^' neither
to avoid nor to solicit any public appointment; but when called
to the discharge of any public duty by the proper authority^ con-
scientiously to attempt its execution. In undertaking to serve
on the present grand jury, I was influenced by the same, consi-
deration. With respect to my public conduct, I presume it is
of public notoriety, and will speak for itself. I not only voted
for the suspension of the privilege of the writ of habeas corpus^
in certain cases, but /proposed that measure. I then thought,
and I still think, that the emergency demanded it ; that it was
fuUy justified by the evidence before the senate ; and I now re-
gret that the nation had not energy enough to support the senate
in that measure. This opinion was formed upon the state of the
evidence before the senate, which, in all questions of a general
nature, is of a very different character from the legal evidence
necessary in a judicial investigation. My mind is, however, free
to receive impressions from judicial evidence. In relation to
the accused, I feel very desirous, and have often so expressed
myself, that the various transactions imputed to him should un»
dergo a full and fair judicial investigation ; and that, through
that medium^ they should receive their just and true character^
whatever in point of fact it might be, and that he should be pre-
sented in that character to the world. I have no personal re-
sentments against the accused ; and if he has received aqy in-
formation inconsistent with this statement, it is Qot true. How-
4l
^er, as it is left to me to elect, whether to serve on the gtond
jury or not, I will certainly withdraw.
CHiEr*Ju8TiG£.«^The couit thinks, that if any gentleman
has made up and declared his mind, it woidd be best for him
to withdraw.
Mr. BuftH.— ^A gentleman who has prejudged this cause, is
certainly unfit to be a juryman* It would be an effort above hu-
man nature for this gentleman to divest himself of all prepos-
aesaions. I believe his mind to be as pure and unbiassed as (hat
of any gentleman ubdeT such circumstances. But the decisive
epinion he has formed upon this subject, though in his public
character, disqualifies him for a jur3rman. But he is one of the
last men on whom I would wish to cast any reflections. So far
firom having any animosity against hini, he would have been one
of those whom I should have ranked among my personal friends.
The other gendeman whom I shall challenge is Wilson Gary
Hicholas.
Mn Nicholas desired duit the objections against him should
be Slated.
Mr. BuER. — ^The objection is, that he has entertained a bit->
ler personal animosity against me ; and therefore I cannot expect
from lum that pure impartiality of mind which is necessary to a
correct decision. I feel die delicacy of iny situation ; but if the
gendeman will consent to withdraw, I will waive any further
inqiuiy.
Colonel Wf I.80R C. Nicholas rose, and addressed the court
as foOows':
My being in this situation certainly was not a thing of choice.
When I was summoned by the marshal^ I urged him in the
strongest manner to excuse me. I mentioned to him, that it
would be extremely inconvenient to me to attend the court, and
that it would be very unpleasant to serve on the jury, on ac-
count of the various relations in which I had stood to colonel
Bttrr« I had been in congress at the time when the attempt was
made to elect colonel Burr president of the United States. My
feelmgs and opinions on that occasion are well known. I had
served three years in the senate while colonel Burr was presi-
dent of that body, and was one of those who, previous to the
last election, had taken a very decided part in favour of the no-
mination of the present vice president, lor the office at that time
fiDed by colonel Burr. Moreover, from the time that colonel
Burr first went to the western country, liiy suspicions were very
much excited as to his probable objects, in that part of the
United States; in conseauence of which I gave early and per-
haps too great credit to the charges which were brought against
Vol. I. F
42
him. Such was my opinion of the importance of New^Or-
leans, not only to the pro&perity, but to the union of the states^
that I felt uncommon anxiety at what I believed to be the state
of our affairs in the west, and had expressed my impressions
very freely in conversation, and in letters to my friends during
the last winter. Under these circumstances, I doubted the pro^
priety of my being put on the jury; but I felt no dt9truBt qf my^
self as I was confident that I could discharge the duty undec a
just impression of what I owe to my country, to the accused*
and to my own character, l*he marshsj assured me, that he felt
the strongest dispqsition to oblige me, but that he thought be
could not do it, consistently with his duty. He supposed there
was scarcely a man to be found, who had not formed and t\*
pressed opinions about colonel Burr. That he too was in a situa-
tion of great delicacy and responsibility, and that, without the
utmost circumspection on his part, he would be exposed to cen-
sure. I renewed my application to the marshal several times,
and always received the same answer. Thus situated, I deter-
mined to attend the court, both from a sense of duty, and be-
cause I would not put it in the power of the malicious, and
those disposed to slander me, to assign motives for absenting
myself, which had no kind of influence on me. Another reason
for pursuing this course prescind itself some time after I had
formed this determination. I conceived that an attempt luid
been made to deter me from attending this court. I was in-
formed by a friend in the ciw, that he had heard, that one of
the mQst severe pieces which had ever been seen, was preparing
for publication, if I did attend, and serve on the grand jury.
From what quarter this attack was to come, I do not know.
The only influence which that circumstance had, was to confirm
me in the determination I had made; as I was ikiuch more in-
clined to defy my enemies, than to ask their mercy or forbear-
ance. From the first I hesitated, whether I ought not to make
the same representation to the court, that I had made to the
marshal. As I was in doubt on the subject before i came from
home, I committed to paper the substance of what I have now
said, and consulted three gentlemen who were lawyers, men of
honour, and my personal friends. Their advice to me was noc
to mention it, for they did not believe that the court would or
ought to discharge me for the reasons I had mentioned. As I
was in doubt myself, I determined to follow their advice, and
the more readily as they seemed confident that I would not be
discharged, and I was not scrupulous of acquiring, in this way,
a reputation for scrupulous delicacy. I was penecdy willing,
that my reputation should rest on the general tenor of my life,
and did not believe that my character required such a prop. At
present I feel myself embarrassed how to act. I certainly was,
and am, anxious not to serve on the jury, but am unwilling to
4fi
wichdmr, lest it should be thought that I shrink from (he dis^
chnige of public duty of great responsibility, and I am not wiU
Img to be driven from the dischat^ of thaf duty in a way which
flboidd lead to a belief, that the objection to me is either acknow-
ledged to be well founded, or has been sustained by the courts
Upon this sul]ject, the example of Mr. Giles has great weight
with me. That consideration, and. a hope that my motives can-
not now be misunderstood or misrepresented, will induce me to
do as he has done. .
Colonel BuRit.«-*The circumstance mentioned by the gentle-
man, that an attempt has been made to intimidate him, must
ha:ve been a contrivance of some of my enemies, for the purpose
of irritating him, and increasing the public prejudice against
me ; rince it was calculated to dirow a suspicion on my cause.
Sttch^ an act was never sanctioned by me, nor by any of my
friends. I view it with indignation, and dischumany knowledge
of the fact in question.
The court estl^lished the following, as being the proper ques-
tiom to be put to the jurors : First, Have you mad^ up your
mind on the case, or on the guilt or innocence of colonel Burr,
from the statements you have seen in the papers or otherwise ?
and finally, Hs^ve you formed and expressed for delivered) an
opinioo on the guilt or innocence of colonel Burr (or the ac-
cused?}
Major Joseph £ggl£ston now addressed the court to this
effect;
I ttfiderstood die court to say, that this was the proper time to
apply to be excused from serving on the grand jury. Having
been summoned by the marshal to serve as a grand juror, I
wrote a letter to that officer, desiring him to excuse me ; but he
refused* In addition to some private reasons, there is one of a
poUic nature, which I hope will exempt me from being retained
CO the jury. As soon as I read the deposition of general Eaton
m die newspapers, I felt and expressed considerable warmth and
indignation on the subject likely to come before the grand jury;
and an that account it might be both indelicate and improper in
me to serve on the grand jury, however correct the decision of
that body might be.
The chief justice having asked whether he had formed and
expressed an opinion on this subject, major Eggleston repeated
what he had said as to his warmth after reading general Eaton's
deposition, and said, that he had expressed his opinion in public
company ; yet he declared his belief, that he could so far divest
himself of his previous opinions and feelings, as to be able to
decide according to the testimony and the law* It had been
44
said, that a bias might imperceptibly remain upon the minds of'
men of the purest intentions, and as it might possibly be the case
with him, he again desired to be excused.
Mr. Burr* — Under different circumstances, I might think
and act differently ; but the industry which has been used
through this country to prejudice my cause, leaves me very
little chance, indeed, of an impartial jury. There is very littk
chance that I can expect a better man to try my cause. His
desire to be excused, and his opinion that his mind is not en-
tirely free upon the case, are good reasons why he should be
excused ; but the candour of the gentleman, in excepting to him-
self, leaves me ground to hope, that he will endeavour to be im-
Eartial. I pray the court to notice, fix>m the scene before us,
ow many attempts have been made to prejudge my cause.
Qn this occasion I am perfectly passive.
Chief-Justice. — ^What are your impressions mowi Have
you formed a decisive opinion on this case?
Mr. Eggleston.*— I have formed some opmion on the state*
ment and evidence I have seen; and if no other evidence were
to be produced, I should probably retain it. I am willing to
hear other testimony, but I wish to be excused.
The court did not excuse him.
4
The panel was here called over, and fourteen only appeared :
upon which the marshal requested the clerk to add thereto the
names of John Randolph and William Foushee. The court
then instructed the clerk to place Mr. Randolph as foreman,
who being called on to take the foreman's oath, addressed the
court thus :
May it please the court,
I wish to be excused from serving. I will state the reasons
of that wish. I have formed an opinion, not on the case now
before the court, because I know not what that case is; but con-
cerning the nature and tendency of certain transactions imputed
to the gentleman now before you. I do trust, that without arro-
gating to myself any thing more than becomes a man, I would
divest myself of this prepossession upon evidence. But I should
be wanting in candour to the court and the party accused, if I
did not say, that I had a strong prepossession.
Mr. Burr. — Really I am afraid, that we shall not be able
to find any man without this prepossession.
Chief Justice.— «The rule is, that a man must not only
have formed, but declared an opinion, in order to exclude him
from serving on the jury.
Mr. Randolph. — I do not recollect to have declared one.
45
Upon which Mr. Randolph was sworn as foreman, and the
rest of the panel called to the book^ until it was Dr. Foushee's
turn. He stated to the court, that he felt some difficulty about
the propriety of serving on the jury ; that, after hearing the
number of excuses which were made and overruled by Uie court,
he was unwilling to bring himself before the court, to claim
SD exemption from serving. But having the same feelings with
other gendemen, he must move the court to excuse him.
After a few desultory remarks by Mr. Burr and Mr. Wick-
ham, doctor Foushee stated, that after having read the presi-
dent's message, general Eaton's deposition, and the publica-
tions in the newspapers respecting colonel Burr, and having
heard little but from those publications, he had formed an opi-
nion of colonel Burr's guilt ; and unless other testimony were
adduced, his impression would probably be retained. That his
present opinion might, however, be said to be merely hypo^
dietical, and predicated on the supposition of the truth of ge-
neral Eaton's testimony, and those other publications: but
that he would as easily divest his mind of prejudice as any
other man; and that, on the exhibition of other testimony, he
mi^t change his opinion.
Mr. WiCKHAH and Mr. Randolph delivered their opi-
nions as to the impropriety of the doctor- serving as a grand,
juror. And
Mr. Hat insisted, that he was a proper juror; that there
was not a man in the United States, who probably had not
formed an opinion on the subject : and if such objections as
these were to prevail, Mr. Burr might as well be acquitted at
once.
Mr. Burr.— This gendeman has said, that from the evi-
dence he has already seen, he has made up his mind ; but
that, on hearing other testimony, he may change it. But as
a grand juror, he will only hear testimony on one side. The
evidence which will be laid before the grand jury, will be alto-
gether on the part of the United States, and ex parte ; and no
testimony to remove the impressions, which he has already
imbibed, will be offered. There will be an accumulation of
evidence on the same side to increase the bias already on his
min<l, and nothing on the other to counteract it. I hope there^
fore the court will suffer him to withdraw.
Dr. FousHEE. — I have stated what other gendemen have
done : that if the testimony I have seen be true, and nothing
brought to counteract it, my impression will of course remain
mchanged* Ji ask, if others are not excused, why this discri-
46
mination against me I However indisposed I may be to senre,
I shall not withdraw but by the direction of the court*
After some observauons by Messrs. Wickham, Randolph
and Hay, the chief justice observed, that the difference seem-
ed to be, that Dr. Foushee had made im an opinion both as to
\aw and fact; whereas other gentlemen nad formed an opinion
only as to certain facts. Consequendy Dr. Foushee was per*
ihitted to withdraw.
Colonel James Barbour being next called, excepted to
himself on a principle in some degree similar to that on which
Dr. Foushee claimed to be excused: that of being impressed
with sentiments unfavourable to colonel Burr. But his excuse
was deemed insufficient by the court.
The grand jury were tbea sworn, and were as follows:
John Rand^h, junior, foreman.
Joseph Eggleston, John Mercer,
{oseph C. Cabell, Edward Pegram,
.ittleton W. Tazewell, Munlwd Beverly,
Robert Taylor, John Ambler,
James Pleasants, Thomas Harrison,
John brockenbrough, Alexander Shephard,
William Daniel, and
James M. Gamett, James Barbour.
The CHIEF JUSTICE then delivered an appropriate charge to
the grand jury, in which he particularly dwelt upon the defiai«
tion and nature of treason, and the testimony requisite U>
prove it. After which they retired.
Colonel Burr then addresse^the court, and stated his wish,
that the court should instruct the grand jury on certain leading
points, as to the admissibility of certain evidence which he
supposed would be laid before the grand jury by the attorney
for the United States.
Mr. Hat hoped, that the court would proceed as they had
always done before, and that they would not grant particular
indulgences to colonel Burr, who stood on the same footing
with every other man charged with a crime. That they had
already charged the jury on certain material principles, and he
trusted that the court would not depart from established rules,
or adopt a new precedent, to oblige the accused.
Mr. BuRR.-^Would to God that I did stand on the same
ground with every other man. This is the first time I have
ever been permitted to enjoy the rights of a citizen. Hcyve
have I been bniught hither?
47
The eHX£F justice said it was improper to go into these d i-
iressions.
Mr. Burr said, that the attorney for the United States had
mistaken his meaning, if he supposed that he wished to be
considered as standing there on a different footing from other
citizens; that he viewed himself as only entitled to the same
privileges and rights which belonged to every other citizen ;
that how much soever be may have disapproved of certain
jnrinciples laid down by the supreme court in their late deci-
sions, he should not at preseitf insist on his objections to them;
that there were many points on which the best informed juxy-
men might be ignorant, or entertaun doubts. All he wished
the court to do now was, to instruct the jury on certain points
relating to the testimony ; for uistance, as to the article of
papers.
Mr. Hat pledged himself that no attempt should be made
to send up any testimony to the juty without the knowledge of
die court-
Mr. Randolph observed, that it was not on particular parts,
but on certain principles of testimony, that he wished instruc-
tions from the court to the jury: for instance, to instruct them
how many witnesses were necessary to satisfy them that ^an
overt act was committed ; how far facts committed in different
dbtricts, should be suffered to bear upon a single act committed
in one district; how far factjs done in one district, .ought to be
admitted as evidence to confirm the commission of other facts
in another district; and what in short was proper evidence to
be laid before them*'
Mr* Hat objected to this proceeding as extraordinary; that
Ae opposite counsel would require from the court a disserta-
tion on the whole criminal law, upon every point which might
possibly occur; that the jury were the proper judges, and if
diey had doubts let them apply to the court for instructions.
Mr. WicKHAM observed, that this was not an ordinary case
as had been said; that the man who thought so must have shut
his eyes against the host of prejudices raised against his client;
diat the attorney for the United States had said, that there was
no man who had not fornKd an opinion on it; that he did not
require a dissertation on criminal law in general, but merely
that the court would instruct the jury on certain points of law
and evidence; that the necessity of instructing arose from the
peculiarity of this case ; that there might be witnesses from dif-
ferent parts of the United States, who would state facts not
connected with colonel Burr; that there were witnesses to show
what was done in the western country when he was hundreds
48
6f miles distant ; that the jury ott|;ht to know from llie c6urt
how much of this vast mass of testimony ought to have a legal
application.
Mr. Hat inforced his former objection, that if the law was
to be laid down by the court, they would certainly wish to have
it explained by both sides; that the gentlemen on the other side
wished the court to decide without argument, on matters the
most important; that as the jury were very intelligent, and the
court had already given a general definition of principles, the
correct course was to proceed in the usual way, without wasting
time in unnecessary argument.
Mr. BoTTs said, that in a case of such unexampled impor-
tance, which was sufficiently attested by the busy crowd around
them, the noise in the country, the curiosity of the people, and
the activity of the government, no reasonable objection could
be made to even wasting a few minutes ; that it was a case
where the prisoner required, and ought to receive, tfie benefit
•f every legal right which the court could furnish.
Chief Justice observed, that there would certainly be a diffi-
culty in the court's giving dissertations on criminal or penal
laws; that he was not prepared at present to say, whether the
same evidence was necessary before the grand jury as before
the petit jury; whether two witnesses to an overt act were re-
quired to satisfy a grand jury: this was a point which he would
have to consider. That he had not made up his mind on the
evidence of facts said to be done in diifertnt districts, how far
the one could be adduced as evidence in proof or confirmation
of the other; but his present impression Was, that facts doiie
without the district, may be brought in to prove the material
fact said to be done withtn the district, when that fact was
charged.
The question was postponed for further discussion, on Mr.
Hay pledging himself, that no evidence should be laid before
the grand jury, without notice being first given to colonel Burr
and his counsel.
Several witnesses on behalf of the United States were called
and recognised to appear to-mori^ow, at eleven o'clock A. M»
The court adjourned till then.
Saturday, 23d May, 1807.
Present the same Judges as on yesterday.
The proceedings of yesterday'being read, and the names of
the jury called over, several witnesses on the part of the United
States appeared and were recognised to attend on the court.
J
49
The counsel for colonel Burr observed, that if it met the ap-
probation of the courts the discussion on the propriety of giv-
ing special instructions to the grand jury would take place on
Mbnday next.
This proposition was assented to, and it was understood that
Mr. Burr's counsel were to give due notice of the propositions
they intended to submit*
The grand jury appearing pursuant to adjournment, the chief
justice informed them, that the absence of general Wilkinson^
a witness deemed important by the counsel for the United
States, and the uncertainty of his arrival at any particular pe-
riod, made it necessary that they should be adjourned.
Some conversation ensued between the court and bar, with
respect to the propriety of adjourning the grand jury to some
future day in the term*
The CHIEF JUSTICE stated it as his opinion, that as thef e was
no necessity for calling over the names of the grand jury every
day, they might be considered in contemplation of law, still in
their chambers till they were called into court, and it might be
understood that they would not be called till some particular
day. This he said was the practice in some of the states, nor
did he know any sound objection to it: but unless it was con-
sidered by counsel on bodi sides, that this course was free
from all exception^ he should be unwilling on any account to
adcmtiu
The counsel for colonel Burr stated that they knew no ob«
jection to the measure, but were unwilling to express any
decided opinion, Especially as colonel Burr was not then in
court.
The chief justice said^ that he felt much inclined to accom-
modate the grand jury; but until further consideration of the*
subject, they would stand adjourned till Monday following*
The court adjourned till then accordingly*
Monday, 25th May, 1807.
The court met according to adjournment: present the same
judges as on Saturday.
The grand jury appeared in court, and on its being stated by
their foreman, that they had been two days confined to their
chambers, and had no presentment to make or bill before them,
Mr* Hay observed, that he had two bills prepared, but wished
to postpone the delivery of them till the witnesses were present^
sod it was ascertained that all the evidence relied on by the
counsel for the prosecution could be had* He thought it pro-
bdUe, that in the course of a week, he should hear of general
Vot. I* G
50
Wilkinsoni who was Btill absent, and whose testimony was
deemed very important*
A further conversation took place, as to the propriety of ad-
journing the grand jury to a distant day of the term> and Mon-
day next was mentioned, as the time when they would probably
be required to attend.
The Chief Justice observed, that from the researches which
he had been Mt to make, he was still inclined to favour the
opinion which he had expressed on Saturday, that there was
no necessity for calling the grand jury every day. This opi-
nion was the result of nis reflection upon principle, not formed
from any positive authority on the subject*
Mr. Wjc^HAM having stated, that as a number of witnesses
were attending at a considerable distance, on the part of co-
lonel Burr, it might be important to know when the grand jury
would be again called.
Mr* Hay observed, that a motion might be made, which
would render their presence necessary, even on that day*
Mr* WicjCHAM then requested, that before any order should
be taken in relation to the adjournment of the grand jury, the
counsel for the United States might state the nature and object
of Jiis motion*
Mr. Hay. — The object of my motion is to commit Mr. Burr
on a charge of high treason against the United States* On his
examination there was no evidence of an overt act, and he
was committed for a misdemeanor only. The evidence is dif-
ferent now*
Mr. Wickham hoped, that the application might be made
and counsel heard.
Mr. Hay. — Gentlemen maybe assured that they will be ap-
prised of the application ; but is it their wish that it should be
made, and the subject discussed in presence of the grand jury?
Colonel Burr. — The gentleman has mistaken the object of
my counsel as far as it is comprehended in my motion* The de-
sign wa$ not that the grand jury might hear, but that the im-
propriety of mentioning the subject in the presence of the
grand jury, might be made more manifest* I think it may be
demonstrated, that while there is a grand jury attending, before
whom a question may be determined, there is an obvious im-
propriety in submitting it to any other tribunal for any other
purpoi»c*
The grand jury were requested to withdraw*
51
Mr. Hay renewed his application, stating more at large the
grounds on which it was made ; and moved the court to commit
yir. Burr on a charge of high treason against the United States,
on the evidence forknerly introduced, and on additional testis
mony to be now brought forward.
Mr. WiGKHAM inquired what sort of evidence was intended
to be introduced : whether that of witnesses to be examined
viva hoccy or affidavits in writing? Mn Hay answered, that
where the witnesses were present he intended to examine them
viva' voce; but where they were absent to make use of their affi-
davits regularly taken and certified.
Mr. BoTTs. — ^We may have cause of much regret, that the
attorney of the United States, has not given us some previous
notice of this application. From the engagements between the
prosecuting and defending counsel, to interchange information
of the points intended to be discussed, we had a right to expect,
that upon a subject like this, involving questions new and impor*
tant, we should not have been taken by surprize. Indeed, from
the common courtesy and candour of the attorney of the United
States, we might have reasonably calculated on a previous com*
municadon. This interchange of civility and information, usual
even in cases of inferior importance, was more necessary in this
case, because the application is as unfortified by precedentas it
is unexpected ; and because it involves questions of deep con«
sideration and weighty importance.
Mr. Hay interrupted Mr. Botts.— -Since the gentleman com-
plains of being taken by surprize, I am willing to postpone the
motion till to-morrow.
Mr. BoTTS. — Not a moment's postponement. Although we
sustain considerable inconvenience by being thus suddenly and
unexpectedly called upon without reflection, or authorities, yet
we should experience greater by a day's delay. I shall there*
fore beg 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 this motion calls for, is the grand jury ; and
the motion is to divest the grand jury of the office, which the
oonatitution 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 alt
^cics of evidence, which may lead to a conviction of the crime
52
of which colonel Borr is now charged ;' but there is a great oiv
jection to the exercise of this examining and committtng
power by a high law officer, who is to preside upon the trial,
when the grand jury, the appropriate tribunal, is in session. He
is obliged, previously, without a full hearing of both sides of thfe
case, to commit himself, upon the case of the accused. Every
one will agree, that a judge, should, if possible, come to the
' office of trial as free from prepossession, as if he never heard
of the case before. It is true, that when a grand jury isnotem*
bodied, in order to avoid a failure of justice, and to prevent the
guilty from escaping, the measure which the gentleman now
proposes, would not only he proper but necessary. The exami*
ning and committing office ot the judge is, in such cases, jus-
tified by the necessity of the case ; but then it is because the ap-
propriate body of inquest is not. impaneled to perform the
office. The necessity does not ei^ist here. This novel mode of
proceeding would give the attorney for the United States the
chance of procuring an opinion from the court, unfavourable to
the accused. Failing in that chance, he would then resort to
his only legal one— before the grand jury. Why should this
court step out of its ordinary course to forestal or influence the
deliberations of the grand jury and the public? The motion
is without precedent, or reason to warrant such a precedent; it
is oppressive and against all principle; it is unreasonable and
oppressive that the functions of the grand jury should be sus-
pended, in order that the court should assume them. Although
in the absence of the grand jury, it would be proper in the court
to determine a question of commitment, yet the history of our
criminal jurisprudence yields no instance of such a motion du-
ring the session of the grand jury. I did expect, that some so-
litary reason would have been given, by the gendeman for the
prosecution, in support of his motion; I did expect, sir, that all
the books oJF England would have been ransacked ; I did sup-
Kose, sir, that the musty pages of folios and quartos would
ave been opened to support his argument ; I did expect, at
least, sir, that one case of state practice would have been produ-
ced. In this expectation I am disappointed. I say then, sir,
that the motion before the court is without precedent, unreason*
able in its nature, inconvenient in its effects, and oppressive in
its end; of apiece with the long course of oppression which has
been practised against colonel Burr, but has been hitherto un-
known in this country; unheard of in any country which enjoys
the blessings of freedom, and which, I trust, will never again be
repeated in these states*
Colonel Burr appears in this court ready to go on with his
trial ; he wishes no delay ; he is opposed to every measure which
may occasion delay, or procrastinate the business. His great
53
object is to satisfy Ilia country, the minds of his fellow ciuzens^
and even his prosecutors, that he is innocent* We have su£fered
already two or three days to pass away in idle discussion, or
without doing any thing; and yet we are told, at last, after the
lapse of several months ; after a grand jury have been convened
and gone into their room; after attending with great inconve-
nience to themselves and expense to the state; zSttvaUthis^ we
are told, that the business of commitment is again to be gone
over; that the evidence which ought to be given to the grand
jury, the only proper tribunal at thb time for its consideration,
is to be submitted to the court. We have, sir, made enough of
sftcrifices; we have been deprived of our legal rights; our per-^
son and papers have been seized ; we have been subjected to a
military persecution unparalleled in this country ; given into the
custody of the satellites of military despotism, and guarded by
the rigid forms of military law: surely our wrongs ought now
to end. It was rumoured that he would not appear; but he has
sheared* We come to ask a legal trial: an examination into
me charges which have been preferred against us. The govern*
ment has had the time and necessary means of preparation, and
they ou^t to be prepared. Our pleasure was, to await the plea-
sure of the prosecution, unless that pleasure should be found to
be oppressive. But we are told now, that the indictment cannot
go up; but in the mean time an inquisition must be held. Per-
mit me to advert, for a solitary moment, to one circumstance :
If we had sought every legal advantage, our motion would have
preceded theirs; our motion would have been, that, if they
were not ready to present their evidence before the grand jury^
colonel Burr should be discharged from the recognisance alrea-
dy given.
The laws of congress have adopted our rules and practice in
the states, in proceedings upon indictments for misdemeanors.
You were of opinion, you well remember, sir, that nothing more
than probable cause of suspecting a misdemeanor appeared
against colonel Burr. Even after an indictment in Virginia for
a misdemeanor, nothing more than a summons can go against
the person indicted. No court, in the commonwealth, ever per-
mitted a capias to go in the first instance, unless the case passed
Mub silcntio* Now arrest and bail are utterly incompatible with
a summons ; and surely, if an indictee cannot be arreted, one
merely suspected, cannot be held to bail. The conduct of judge
Chase, in awarding a capias against Callender, was the subject
of one of the charges in his impeachment. Mr. Hay, vehement-
ly and ably contended, that a summons only ought to have issu-
ed against him.
I know that the court may have an impression that I am
wandering from the subject.' I will soon show what applica*
54
tion the recognisance already taken has to the motion to exa*
mine witnesses, in order to commit for treason. .
Notwithstttiding colonel Burr, was committed upon a charge
of misdemeanor, when according to the state laws he wotJd
not have been committed, a public prejudice has been excited
against the lenity of the measure; and attempts have been made^
through newspapers and a popular clamour, to intimidate every
officer who might have any concern in the trial. This public
prejudice would be increased by the present motion rather than
allayed, if the necessary explanation should not be made* The
multitude around us must hear what is passing, and we cannot
submit to a course which would further invest the public mind
with the poison already too plentifully infused. I do not charge
the attorney of the United States with a design to excite or in*
crease this public prejudice ; but Iknowit willbe increased,unless
care be taken to show, that the public clamour has been ground*
less. I take it for granted, that after this view of the subject,
whatever motive dictated the application, it will now be aban*
doned, and that the gentleman will withdraw his motion. I will
not weary out the patience of the court, but conclude by sa)ring,
that I sit down in anxious hope, that the success of this motion
may not add to flie catalogue of colonel Burr's grievances.
The chief justice inquired whether the counsel for the pro-
secutioil intended to open the case more fully?
Mr. Hay 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. That the general power
of the court to commit, could not be questioned ; and if gentle*
men contended, that it ought not to be exercised in the present
case, it was incumbent on them to show it. That Mr. Botts him-
self had not denied it. That his whole argument turned on the
question, not whether the court had the right, but whether it
was expedient now to exercise it. Its expediency depended on
the evidence ; if that was sufficient, there could be no doubt of
the power. That if the court once admitted, as an exception to
this principle, that the grand jury was in session, they would
establish a precedent fraught with the most injurious conse*
quences^
Mr. WicKHAM. — It certainly would have been an accommoda^
tion to\is, if the gentlemen had given us notice of their intended
motion. We come into this discussion completely off our guards
completely unprepared ; and it may be presumed, that it was
merely an omission in the opposite counsel, not to have given us
notice of the motion which they intended to bring forward.
Because it wasgdistincdy understood between us, (by an argu^
55
ment made, I believe, in the hearing of the court), that if any
specific motion was to be made on either side, timely notice of
its nature and object ivas to be given. I am sorry that they have
departed from their agreement in the present instance; but if I
have not forgotten every principle of law which I ever learnt,
of every principle of common jusUce, this motion cannot be sup*
ported.
Mr. Hay.— -The gentleman will permit me to set him right.
He might have relied on my candour, that when I was about to
lay my indictments before the grand jury, I would have given
him timely notice of my intention. They might then have mov«
ed for the instruction to the jury, which they are so anxious to
obtain. This was the only understanding between us on the sub-
ject; our agreement extended no further; much less to the par-
ticular case before the court. On the other hand, there was a
very strong reason against our making this communication. I
feel no hesitation, sir, in assigning this reason: and I hope that
it will wound neither the feelings of the prisoner, nor of his
counsel. I did not intend to have laid it belore the court, but I
now conceive myself called upon to be thus explicit. The fact
is this. 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 pretend to say
what effect it might produce upon colonel Burr's mind; but cer-
tainly colonel Burr would be able to effect his escape, merely
upon paying the recognisance of bis present bail. My only d>-
jea then was to keep his person safe, until we could have inves-
tigated the charge of treason; and I really did not know, but
that if colonel Burr had been previously apprised of my motion,
he mig^t have attempted to avoid it. But I did not promise to
make this communication to the opposite counsel, because it
might have defeated the very end for which it was intended. I
have said, that the only pledge I gave, merely related to the in-
dictments to be sent up to the grand jury.
Mr. WiCKHAM observed, that after this explanation, he must
suppose, that he had misapprehended the extent of their agree-
ment* He knew the gentleman too well to think that he •had
intentionally misled him; but what could he think of the motion
he bad made? It was a strange episode which he weaved into
Us tale; it may be good poetry indeed, but it was not certainly
proper matter of argument. Every man who hears me, every
who has ever read on the subject, must know, what are the
which dictate these suspicions of colonel Burr. Some
aaortification was felt by his enemies, (not that the attorney for
die United States himself ever felt it), that he returned here for
iviaL But here colonel Burr hj and always will be ready to
56
meet every charge they may think proper to bring agaiinst him r
and to face every man who dares to say any thing against him.
The gentleman will not open his case, and why i Because when
he has heard our arguments against his .motion, be may come
out with the adverse arguments against us. If they do not choose
to open their case, we hope the court will grant us the right of
concluding the argument.
Here a desultory conversation ensued upon the order of pro-
ceeding.
Mr. Edmund Randolph observed, that the power of th^
coui^ to commit, was not denied ; but that the expediency of
committing, while a grand jury was in session, was denied; that
it was improper that an inquiry which belonged exclusively to
that body, should be transferred to the court.
Mr. Hay said, that it made no difference in law, whether the
grand jury were in session or not; that the grand jury being in
session could not deprive the court of the power with which they
were vested. Let me state a case, said Mr. Hay. Suppose colonel
Burr had only arrived at Richmond this morning, instead of
having been brought at the period of his first examination,
would his counsel contend, that the court would not think it pro-
per to commit him, instead of bringing the question immedi^.
ly before the grand jury, when the prosecutor was not furnished
with the necessary evidence? This is precisely the case at pre-
sent. From additional evidence, which has come into my pos-
session since his examination, . it applsars to me, that upon s|.
disclosure of it to the court, they will see proper that he should
be committed on the charge of treason; but to complete this
' evidence sdll more, the testimony of general Wilkinson is es-
sential ; and until his arrival, it would be improper to submit it to
the grand jury; although it is necessary, for the reasons I have
stated, that it should be submitted at present to the court
Mr. WicKHAM meant to support his arguments on the
grounds of law and precedent: he read the revised code of Vir*
ginia, page 103, sect 10. which he contended were plainly in his
favour. He observed, that the present motion was unprecedent-
ed in a system of criminal jurisprudence, which was upwards of
one hundred years old. If this motion be a proper one, there
must be some precedents in this country or in England. If there
. be none such their motion cannot be supported; and as the geiw
tlemen have not produced them, it is fair to infer, that there are
none such* It is therefore obvious that the present motion is con-
trary to the acts of Virginia, as well as to the common law*
The attorney for the United States says, that he can take no
final measures, till general Wilkinson is present His deposition
57
-is greatly relied upon. Now^ sir, .1 r efe^ to yoii as well as to the
supreme court of the United States, where you presided, that the
facts contained in that deposition did not amount to treason,
but to a probable proof of a misdemeanor only.' As to general
Eaton's, it is not relied on ; the sole felian(;e of the prosecution
is on Wilkinson's: of course, if Wilkinson himself were present,
he would prove nothing new. But if general Wilkinson be so ma-
terial a witness, why are they not prepared td go with him before
die grand jury? Why is he not here? He is a* military officer^
bound implicitly to obey the head of the government; In the
war of Europe, a general has been known to march the same
distance at the headof his army, in-a shorter Ume than general
Wilkinson has had to pass from N^w-Orleane to this place. He
15 bound to go wherever the government directs him: to march
to Mexico; to invade the Floridas; or to come to this city. Per-
haps there are other reasons for his not coming: but let us not
press this subject.
What, sir, is the tendency of this application ? What is the mo-
tive? I have no doubt, the gendemen 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
govemmeiit) who, thinking tordo right, are labouring to ruin the
reputation of my Client. I do not charge the government with
diis attempt; but the thing . is actually done. Attempts have
been made.' The press, from one end of the continent to the
other, has becm enlisted on their side to excite prejudices against
colonel Burr. (Prejudices? Yes, they have influenced the public
opinion by such representations, and by persons not passing be-
tween 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 misrepresentations ? to shut
out every effort to excite further prejudices, until the case is de»
cided by a sworn jury? not by the floating rumours of the day,
but by the evidence of sworn witnesses ? The attorney for the
United States offers to produce his testimony: no doubt, the
most violent; no doubt, the least impartial which he can select:
testimony, which is, perhaps, to be met and overthrown by su-
perior evidence. Qo they, besides, wish that the multitude-
around us should be prejudiced by garbled evidences? Da
precedents justify such a course as this ? Produce your witnesses,
they may say. N(3, sir, colonel Burr is ready for a trial; but he
wishe;s that trial to come before a jury. I do not preten.d to
understand the motives which led to those things : it is enough,
that they produce these mischievous effects upon ourselves.
Should government, hereafter, wish to oppress any individual;
to drag him from one end of the country to the other by a mili-
force ; to onlist the prejudices of the country against him;
Vol. I. H
1
58
«
they will pursue the very same course which has now been t»*
ken against colonel Burr. Hflwis here, ready for triaL They
admit that their testimony is not sufficient to bring him before
a grand jury, and of course, to find an indictment against him.'
"Why then is this partial evidence to be exhibited on a motion
for commitment? It is to nourish and keep alive the prejudices
already circulated against him. Will they then, press a motion
like this? Be it so. I hope the motion wiU be rejected, and that
the court will stand between the innocent and his pursuers: for
every man is presumed to be innocent, before he is found
guilty.
Mr. Wirt. — May it please your honours.
The attorney for the United States, believing himself possess-
ed of sufficient testimony to justify the commitment of Aaron
Burr for high treason, has moved the court to that eifect* In
making this motion, he has merely done hi^ duty. It would
have been unpardonable in him to omit it; yet the counsel for
the defence complain o( the motion and the want of notice*
As to the latter objection, it must be palpable, that the nature
and object of the motion rendered notice improper. The gen«
tlemen would have the attorney to announce to the party accu-
sed, that he was, at length, in possession of sufficient evidence
to justify his commitment for high treason; and, that being ap«
prehensive he might not be disposed to stand this charge, he in«
tended, as soon as the accused came into court next morning,
to move his commitment ! This- would really be carrying po-
liteness beyond its ordinary pitch. It would not have deserved
the name of candour, sir ; it would, in fact, have been an invi-
tation to the accused to make his escape* But, as gentlemen
seem to doubt, at least with an air of some earnestness, the pro«
priety of this motion at this time, and express their regret that
they have not had time to examine its legality, the attorney
has offered to waive the motion until tomorrow, to give gentle-
men the opportunity which they profess to desire; but no, sir,
they will not even have what they say they want, when offered
by the 'attorney. Another gentleman, after having demanded
why this motion was made, and by that demand drawn from the
attorney an explanation of his motives, has been pleased to
speak of the attorney's statement, of his apprehensions, as an
episode, which "though good poetry," he says, "had better
have been let alone, when such serious matters of fact were in
discussion.*' It may be an episode, sir: if the gentleman plea-
ses, he is at liberty to consider the whole trial as a peice of
Gpic action, and to look forward to the appropriate catastrophe*
But it does not appear to me to be very fairs sir, after Jiaving:
drawn from the attorney an explanation of hisn\otives,to com-
59
fklain of that explanation : if a woutid has been inflicted by
the explanation, the gentlemen who produced it, should blame
bfily themselves. But, sir, where is the crime of consider-
ing Aaron Burr as subject to the ordinary operation of the
human passions? Towards any odier man, it seems, the attor-
ney would have been justifiable 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 de-
portment, 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 distin-
guished. 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, this power of the court is suspended ; and the
commitment cannot be had unless in tonstquence of a present-
ment or bill of indictment found by that body. The general
power of the court being admitted, those who rely on this ex-
ception, should support it by authority; and therefore, the loud
4Uiil for precedents, which we have heard from the other side,
comes 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 ex-
traordinar}' 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 destruc-
tive of the principles of justice: for if the doctrine be true at all,
that the presence of a grand jury suspends the power to hear
and commit by any other authority, it must be uniformly and
universally true in every other case as well as this, and in
every case which can be proposed while a grand jury is sitting.
Now, sir, let us suppose, that immediately on the swearing of
diis grand jury, and their retiring to their chamber, Aaron Bun-
had for the first time been brought to this town; the members
of the evidence scattered over the continent; the attorney, how-
ever, in possession of enough to justify the arrest and commit-
ment of the accused for high treason, but not enough to autho-
rise a grand jury to find a true bill. What is to be cfonef The
rourt disclaims any power to hear and commit, because there is
a grand jury ; the grand jury cannot find a true bill, because the
c^dente is not sufficient to warrant such a finding: the natural
and unavoidable consequence would be, that the man must be
i
6d '
discharged: and then, according to Mr. Wickham's principles
of ethics, that every man must be supposed to iiltend the na^
tural consequences of his own acts, the gentlemen who advo-
cate this doctrine intend, that Aaron Burr shall be discharged
without a trij^l.
I beg you, sir, to recollect what was said by gentlelhea
the othtr day, when you were called upon to give an additioTnal
charge to the grand jury. You were told that a grand jury should,
require the same evidence to find a true bill, which a petty
jury would teqUire tb convict the prisoner* Connect this
principle with the doctrine in question: the sitting ;of the grand
jury suspends all power to commit by any othejf body, and the
grand jury cannot find a true bill, unless on evidence on which
they would convict as a petit jury: connect these two principles,
and consider the immaturity of evidence, which always exists at
the period of arrest an4 commitment : and the sitting of the grand
jury, instead of being a season of admonition and alarm, be-
comesa perfect jubilee to. the guilty, fiut it is said, that this is
^* an attempt to, divest the constitutional organ of its just and
proper power." I believe, sir, it wa^ never before heard, that
an application to (Coprmyt for safe keeping, was an encroachment
on the power of the grand jury. Would the gentlemen have us
to address this motion to the grand jury? they might as well
propose, that we should submit the bill. of indictment to the
court, and desire them to say, whether it is a true bill or not?
This would be indeed, the "shifting of p<>wers,'' of which the
gentleman complains. As it is, sir, there.is no manner (^ col«
lision between the power, which we call upon, the court to
exercise, and the proper power of the grand- jury. The justices
arrest and commit, for safe keeping; then comes the function
of the grand jury, to decide on the truth of the indictment ex*
hibited against the prisoner. The two offices are distinct in
point of time, and totally different in their nature and objects.
But it is said, that "there is a great inconvenience in submit-
ting a great law officer to the necessity of expressing an opinion
on the crime, on a motion like this — that the judge like the juror,
should come to the trial with his mind pure and unbiassed."
This argument does not apply to the legality of the power,
which we call upon the court to exercise; it goes merely to the
expediency of exercising it: and if the argument be true, the
court ought never to commit, whether the grand jury be sitting
or not. This, however, sir, is a matter for legislative^ not for
judicial consideration. Whenever the legislature shall decide,,
by the force of this argument, that the court which commits
^hall not sit on the trial in chief, a motion like this will become
improper. At present, however, the legislature has left this
3
61
power with'the court, and we claim its exercise for considera-
tions of the most serious importance to truth and justice.
But, sir, we are told, that this investigation is calculated to
keep alive the public prejudices; and we hear great complaints
about these public prejudices* The country is represented as
being; filled with misrepresenitatiocis and calumnies against
Aaron Burr; the public indignation it is. said, is already suf*
ficiently excited. Thia argument is also inapplicable to our
right to make this motion; it does not affect the legality of our
procedure. But if the moUon is likely to have this effect, we
cannot help it« No human institution is free from inconveni-
ences; the course we hold is a legal one, -a necessary one : we '
think it a duty. It is no answer to us- to say,, that it may pro-
duce inconveniences to the . prisoner. But let us consider this
mournful talc of prejudices, and the likelihood of their toeing
excited by this motion. - 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
ramours that are floating through the world, nor the bulk of
the multitude, nor the spectdations of newspapers; but the
evidence offaet0* We propose, that 'the< whole evidence excul-
patory as well as accusative, shall come before you; instead of
excitifig, this is the true mode of correcting. prejudices. The
world, which it is said has been misled and inflamed by false-
hood, will now hear the truth. Let the truth come out, let us
know how Tnxxch. oi what we haye.h^ard is false, how much of
it is true ; how much of what we feel us prejudice, how much
of it is justified by fact. Whoever before heard of siich an ap-
prehension as that which is^ professed on the other sidef pre^
judice 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 this 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 tfie answer. On our part, we are ready to produce
diat cvideiice. Permit me now, sir, to turn to the act of as-
sembly which has been read by Mr. Wickham. Into what em-
barrassoient must the itigenious and vigorous mind of that
gentleman have been driven, before he would have taken re-
fuge under this act of assembly? It is but to read it to see that
It has no manner of application whatever to this motion; that
it applies to the case of a person already committed; declaring
that such person shall be bailed, if not indicted at the first term
after his commitment, and discharged if not indicted at the se-
cond tcrm# Revised code, page 10.3. sec. 10. It begins thua^
«
e2
** When any person committed for tretson.'^ — Now, sir, it
Aaron Burr committed for treason i. If not, it is obvious that the
clause has no manner of application to him. Why, sir, the ob-
ject of this motion is to commit him; gendenlen must have
been in strange confusion when they resorted to this law. Mr.
Wickham asks, if general Wilkinson be a material witness, why
he is not heref Who is general Wilkinson? says that gentleman.
Is he not the instrument of the government, bound to a blind
obedience? I am sorry for this and many other declamatory
remarks which have been unnecessarily and improperly intro-
duced; but the gendeman assures us, that no imputation i«
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 in-
deed has been harassed by a military tyrant, who is *^ the in-
strument of the government bound to a blind obedience;" but
the gendeman could not by any means be understood as in«
tending to insinuate aught to the prejudice of the government*
4 The gentleman is understood, sir; his object is correctly under-
stood. 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 be has spoken of, from Aaroa
Burr to another quaiter. These remarks were not intended for
'* yx>ur ear, sir; they were intended for the people who surround
« tis; they can have no effect upon the mind of the court. I am
too well acquainted with the dignity, the firmness, the illumi-
nation of this bench, to apprehend any such consequence. But
the gentlemen would balance the account of popular preju-
dices; tfaey would convert this 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 admini-
stration 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 be*
tween 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. Let us return
to Aaron Burr. " Why is not general Wilkinson here V* Be-
cause it was impossible in the nature of things for him to be
here by this time. It was on the first of April that you decided
on the commitment of Aaron Burr for the misdemeanor; un-
til that decision was known, the necessity of summoning nvit*
nesses could not be ascertained.' General Wilkinson is the
commander in chief of the American troops, in a quarter where
his presence is rendered important by the temper of the neigh-
63
bouri|ood: to sttmmoii him on the mere possibility of com-
mitment would have afforded a ground of clamour, perhaps a
just CMie, against the administration. The certainty that Aaron
Burr would be put upon his trial, could not have been known
at Washington till the Sth or 6th of April. Now, sir, let the
gentlemen on the other side make a slight calculation. Or-
leans is said to be 1500 or 1600 miles from this place* Suppose
the United States mail travelling by a frequent change of
horses and riders, a hundred miles per day, should reach Or«
leans in 17 days from the federal city, it would be the fi4th or
25th of April (putting all accidents ouiof the question,) before
general Wilkinson could have received his orders to come on^
Since that time until this, he has had thirty days to reach
Richmond. Could a journey of 1500 or 1600 miles be rea-
sonably performed in thirty days? Who can bear a journey of
50 miles per day for thiity'days together? But sir, general
Wilkinson is not here ; due means have been used to bring him.
Utfaer; his materiality is ascertained by his affidavit, and the
attorney does not choose to send up the indictment in his ab-
sence. Bat we admit, it seems, that we are not ready to make
good our charge. In my opinion thei^ is evidence enough to
prove the treason independently of general Wilkinson. But it
is important in every point of view, that that gentleman should
be here. It is important to his own reputation: it is in^ortant
to die people of the United States that he should be here ; and
on die part of the grand jury, sir, there is no calculating what
inferences unfavourable to the prosecution might be drawn
from the mere circumstance of his absence. The attorney is
therefore, in my opinion, very right not to hazard the justice
and the fair trial of this case, by sending up the indictment in ge-
neral Wilkinson's absence.
But It seems that Wilkinson's affidavit has been already de-
cided to have no relation to the charge of treason. To what
general Wilkinson's affidavit tended while it was inomalated,
insulated, or connected only with that of general Eaton, is no
proof of what its tendency may be now, in connection with the
great mass of additional testimony whieh we have collected.
Sir, we say that it is the key-stone which binds the great arch
of evidence now in our possession. As to sending up the in-
dictment, it is out of the question; truth and justice require
that it should not now be sent up. But we hope, sir, that the
motion to commit Aaron Burr will be received, because we
think it not only a legal, but also a just and necessary measure
of precaution.
Mr. Hat. — ^On this occasion, I beg leave to n^ake one or two
preliminary remarks. I stand here engaged in the performance
r 64
o*f a very serious duty- The duty I iiave to perfbrm is, indeed,
most serious and ^important. The sut^ect now before us is one
which deeply affects the character of the government ; tind the
charge is the most solemn and interesting that can be exhibited
Sigaiust any individual. The motion I have to make is, that
^ Aaron Burr may' be committed on a chtrge of treason against
the United States!
Sir, it was natural to suppose, that such a seribos charge
would have made a most serious impression upon Aaron Burr's
mind; that he would have roused all the energies of his under-
standing in his service, in vindicating himself, and not in casting
imputations upon the government. Why then does he turn from
I defending himself to attack the administration? Why these com-
I plaints of persecution which have fatigued our ears? I most so«
lemnly deny the charge. I most confidently avow, that there is
not a tittle of evidence to support it. None can be produced,
unless it be a persecution, that the government brings him before
^ a legal tribunal, where his guilt or innocence, will be impartially
established. Aaron Burr stands accused of the highest crimes
and mbdemeanors ; he stands- charged with a deliberate design
of involving his country in all the horrdrs of a civil insurrection,
or of entangling her in a war with a.ibreign nation* This is the
true question before the court; and instead of meetkig this
charge with the energy and firmness* which became him; jfifltead
of conironting it with his evidence,* he complains forsooth of
persecution! And where^ sir, is this tremendous peiioecotiotii
*'^ Because he was sent here by a military authority ?" But /Aaron
Burr has been tried in the countrv where he was arrestod? Was
Blannerhasset's island in the Mississippi territory? Or ought he
not to have been conveyed to that judicial district, which possea*
sed a competent jurisdiction? But if Aaron Burr oilght to have
been sent hither, by what number of men should he have been
escorted? Was it by one man only; from whom he coukl.haye
been so easily rescued, and whose vigilance he could most pro«>
bably have eluded? Or ought he to have been conveyed) as he
really was, by the energy of men, like Perkins, whose unshrink-
ing firmness, and whose humanity (in the presence of Aaron
Burr himself I avow it, Jet him deny it if he can)^^had com-
pletely qualified him for the safe transportation of his prisoner^
But, sir, when this cry and yell of persecution is once excited^
it is not easy to set bounds to its fury. Not contented with in-
veighing against the pretended persecution of the government;
a government which never did persecute; a government which
cannot persecute, and which will for ever stand firm in the
affections of the people, from the integrity and intelligence
%vhich mark its measures. Not contented with lavishing their
complaints against that government, the counsel for the
prisoner have even turned against the humble instruments,
who conduct the prosecution. They s.eriously complain, that we
65
have given them no previous notice of thift motion; and these are
the vety men, who have so often oifered motions to this court,
without the slightest intimation to ourselves. Sir, I most posi-
tively assert, that no notice in the present case ought to have
been giveik I shall not pretend to assert, that Aaron Burr was
disposed, under the present state of things, to eflfect his escape.
But, I say, that supposing such to have been the fact, and sup-
posing that, availing himself of the information which we had
unparted, he should have taken to flight; I appeal to the can-
dour of every impartial man ; I appeal to the candour of the
opposite counsel memselves, whether I should not have been
gmlty of a most gross vidation of my duties?
But they say, he ought not to be committed, because the pre-
sence of the grand jury suspends the authority of this court*
But where are the precedents which justify this position? I have
not made many researches into this case; because I did not
suppose that there was a single sceptic at this bar who would
deny the universality of the proposition that we have laid down;
that it was the right of the court to commit in every case where
they deemed it proper. They say, that in this case, the power of
the grand jury and the court are concurrent. Strang^ that they
should forget the immense diffisrence between their powers! the
evidence which is suflkient before the latter, is widely different
from that which is necessary to be produced to the former.
The testimony requisite to induce the court to commit the per-
son accused is less than we are bound to submit to the grand jury,
and much less than that which alone is admissible before the pe-
tit jury. I will quote the authority of the gentlemen against them-
selves. They say, that stronger evidence is necessary before the
grand jury than before a court for the examination of a prisoner.
I think differently myself ; but certain it is, that affidavits are not
admissible to be. sent to the grand jury ; although they may b^ used
to convince the court that it is proper to commit. For my part, I
diink we are already in possession of vha voce evidence not only
snfficieDt to commit colonel Burr, but to induce the grand jury to
find in favour of both the indictments: but I will boldly inquire,
whether I should discharge my honest duty, were I to submit
my indictments before the grand jury at this moment, when I have
not all the material evidence which we may possess? Sir, these
gentlemen may cast their groundless censures upon me; but in
vain: all their clamours will never move me from my purpose.
The course which I am pursuing is sufficient to satisfy my own
conscience; and it is indifferent to me whether ten or ten thou-
sand men should join in my condemnation.
Mr. Botts asserts, that we have produced no authorities to
prove our position; and that we have none to produce. But is it
right to be continually recurring to precedents? Is there no al-
bwance to be made for the operations of common sense, in anv
Vol. I. I '
• 66 ' ■
case ? Where cases of doubt and difficulty occur, a reference of
this kind is certainly proper to enlighten and fortify our own
judgments. But even admitting the propriety of introducing
precedents in the whole extent for which gentlemen contend, it
is their business and not ours to comply with the requisition for
precedents. We stand uppn the broad, general principle, that
courts have the power to commit. If gentlemen contest this prin-
ciple in the present case, why do they not introduce their coun*
tervailing authorities?
I regret that my duty did not permit me to give my friend
Bf r. Wickham notice of this motion, that he might have more
seriously meditated upon the subject before he urged his objec-
tions. If he had understood it wkh his usual correctness, he
never would have troubled the court with the law of Virginia:
for this law has not the slightest bearing upon the specific propo«
sitioR bt:fore you.
Mr. Wickham inquires why we do not at once send up our
indictments before the grand jury? Suppose, sir, we should pur-
sue the course which he recommends; suppose we should send
up our indictments on the evidence which is now in our posses-
sion; several days mighi elapse before they would be able to in-
vestigate this body of evidence. In the mean time, some of those
numerous persons, who are pr^'inginto every hole and comer of
this city, might probably catch some distant hint of the probable
decision of the jury. They have certainly too much discretion
not to keep their own counsel: but it is absolutely impossible to
exclude completely the busy eye of curiosity. Some vague in-
sinuations may probably escape; something which might justify
a suspicion of their determination. Suppose, then, that Aaron
Burr was to be actuated by these considerations; suppose that hia
fears, (if fears he can feel) should prompt him to escape; what,
sir, would become of our indictment? Mr. Burr may quit the
United States; he may flee for ever beyond the jurisdiction of
this country ; and in that case, the whole world would ridicule
us for the course we had pursued. Or let us even suppose that
we were ||^ithdraw this motion, where would be our security^?
Must we Tfust to the indulgence of Mr. Burr himself for re-
maining in this city and standing his trial?
We expect general Wilkinson here in a few days. We have
an affidavit which positively states, that an express to New-Or-
leans, to command his presence on this trial, was met on the
frontiers of the Mississippi Territory; we have also letters from
the attorney general of the United States, explicitly stating, that
general Wilkinson has been officially authorised to leave the
army of the United States, and select whatever mode of truii-
sportation he might think proper. [Here Mr. Hay read the
davit, shewing that the express to general Wilkinson, had bei
seen in Athens, in the state of Georgia.] In the mean ttnxe y
67
what 18 colonel Burr's situation ? It is completely optional with
him, whether to stay here and face his accusers, or to avail him-
self of his liberty and leave the United States. We call upon this
court to exercise the authority with which they are invested; and
by binding over colonel Burr, as well on the charge of high trea-
son, as of a misdeme^or, to detain him here for a satisfactory
trial*
We scarcely expected to have been asked, why general Wil-
kinson was not here? The gendeman himself has said, that he
is a general. Can he* then leave his army at any time, and with-
out die permission of the government? Make, however, a com-
putation of time. The attorney general left this city on the 4th
or 5th of April. He reached Washington on the Tth or 8th. Al»
low then a reasonable dme for an express from Washington to
New-Orleans; and for a man of general Wilkinson^s agie and
bulk to travel to this city; and is it probable that he could have
arrived here before this period? If he availed himself of the li-
berty and means to come by water; the gales have been lately
very severe. And even two of the grand jury have assured me,
that if general Wilkinson was exposed to the late tempestuous
weather, he will probably never see the United States. Mr.
Wickham has expauated upon the attempts made to prejudice
the public opinion through the medium of the press. Sir, a great
deal has been said in the newspapers upon this transaction; and
a great deal will yet be said. But are the presses shut against
colonel Burr, when even in this very city certain presses have
been found to vindicate his motive and designs ? But what of
all this? The public mind is hostile to any encroachment upon
the liberty of the press ; and it ought to be so. Where a crime of
such gigantic enormity, as that attributed to Aaron Burr, arises
in this country, the printers will speak, and they ought to speak;
the purest motives will command them to speak. If there have
been publications against colonel Burr, innumerable communica-
tions have also appeared in his favour; and^if the publications
against him have contained the severest strictures, they have re-
snlted from his own character and conduct; and he has no right
to complain.
He stands on the fairest ground which his conduct and cha-
racter can reach. But if in truth prejudices have been improperly
excited against him, why does he wish to close the only door to
bis own vindication, by excluding the evidence. His counsel ex-
daim, " Send the evidence to the grand jury." Surely if colonel
Burr wishes to have the evidence before the jury, he should be
much more anxious to have it before the court. The jury will have
one side of the evidence only before them; and that will be com-
pletely against himself. Both, however, will go before the court.
Why, then,, does he shrink from the evidence? If an unjust pre-
68
judice assails him, the light of truth and evidence will dissipate
it. Why does he shrink ?
The gentlemen on the other side, continued Mr. Hay, do not
do us justice. They charge us with persecution and oppression*
Sir, I never contemplated or wished to hurt Aaron Burr« I scorn
it. I look not to him. I look only to the duties which I am so-
lemnly bound to perform. One remark more, sir, and I have
done : Gentlemen on the other side, insist upon the insufficiency
of our evidence; because we have withheld our indictments
from the grand jury, they have hastily inferred, that we feel our
evidence to be too feeble to satisfy the jury. They are mistaken,
sir. I assure them that they are mistaken. Iconscientiou3lybeiieve9
that we have evidence enough, even throwing out the depositions
themselves, to satisfy the grand Jury of the guilt of Aaron Burr.
But, sir, puerile indeed would it be for us, under the present
state of things, to submit our case before the grand jury, on the
evidence before us, when we are. every moment expecting better.
Mr. Edmunb Randolph addressed the court to the following
effect :
Sir, it would have been impossible for us, even had we receiv-
ed due notice of this motion, to have availed ourselves of the
time that was allowed to us. That would have been impossible,
because the enormity of the proposition itself, would have baffled
all our consideration, and all our researches. Mark the course,
sir, which has been pursued towards my unfortunate client. FhBt
he was brought here under a military escort. Then that little
folio of depositions and affidavits, was laid before your honour :
then the charge of treason : and then that little cock*boat which
was destined to attend this great ship, on a foreign expedition.
Tou heard it all, sir, and what did you say? You bound colonel
Burr to bail, simply on the charge of a misdemeanor, to appear,
here at the opening of court; but not contented with this secu-
rity, you superadded, that he was not to leave the court until it
had discharged him. You opened the door, too, for an ulterior
prosecution; you declared, that if the attorney for the United
States should obtain any additional evidence, the judgment which
you then rendered, would not prevent his indicting colonel Burr
on the charge of treason.
Sir, thus stands the case, as it was understood by the whole
universe. On Friday, we came here to meet the whole world;
Friday, however, passes away, and nothing is done. On Satur-
day, we came here again ; Saturday, also, passes away, and no-
thing is done. But on Sunday, sir, (for it seems that day, which,
to the generality of mankind, is a day of rest, is a day of activity
to some,) is broached this new fangled doctrine, which now ex-^
cites our astonishment. They demand precedents, sir, for our
conduct; and who are they that require it i Why, sir, they that
69
take things oat of the cvdituoy course of the law« For thirty
yean, I never saw such a pfoeeeding :• I have never read of
such a one in die English books ; and. yet, these gendemen call
upon us for precedents. If we were asked for our reasons sir, we
ahoidd hftve enough to offin* : and first, a judge in the federal
OMOtf skting in the capacity which your hcmour now fulfils, is in
the same reiatioo to the accused, as an examining judge is in the
stale ooQits. But, ^r, who ever invited a single magistrate, or a
state couit to augment the bail of any individual in the situation
of colond Burr? If a nun was bound, in a distant county, to
answer to a misdeineitoor, and another crime was to be brought
agwnst him, to be predicated on the vety same evidence, have
you, sir, ever Imown the trying court to increase his bail? There
never was such an example, su*.
Mr. Botts' remark, sir, is not to be answered. You are change
ing the constitutional orfl;an of justice* You are completely blot-
ting out the functions of a grand jury. The witnesses will be all
produced before you : but no, improper as this proceeding will
be, it is still less so, than that which they will actually pursue.
None of the United States' witnesses will be brought before
you, but diose whom they may think it politic to introduce; and
depend upon it, that such testimony will be garbled for the ears
of this couyrt, as may i)e e:^cted to bijia their judgment. Well,
sir, and what will be the consequence ? When the grand jury
are about to retire to their own chamber, they will be told that
you have demanded additional bail. Are you then, sir, to be a
pioneer of blood for the grand jury ? Is not this precedent out-
rageous, sir ? The boasted principle, that no man is to be con-
demned but upon die verdict of twenty-four of his peers, is gone.
Throughout this town, it will be universally reported, that you
have solemnly declared Aaron Burr to be guilty of high treason
against the United States; and some of those, to whom the ru«
moor may extend, may hereafter be impaneled on the petit
jury. And will they feel themselves altogether unbiassed by your
judgment? Why, sir, let it be declared at once, that the grand
juiy is to be struck out as an intermediate organ of justice.
f)o not, I pray you, Bjr,let us suffer for the delays and negli-
gence of other people* I cannot blame the United States' attor*
ncy. It is his business to obey the instructions of the govern-
ment; and if the witnesses are not here, it is certainly no fault
of his : but surely there is time enough to travel from New-Or-
leans to this city in seventeen days; even with the gigantic ^^ bulk"
of general Wilkinson himself.
Mr. Hay says, our tone iji changed. And how, sir ? We de-
mand a trud now. We demand a fair trial. But must we not,
therefore protest against a measure, which is calculated to defeat
dib object? Certainly, sir. You are called upon to prejudice the
minds of the grand jury. But, sir, in this interesting case, Where
i
[
70
liberty and life themselves are endangered, I trust that some
hard*mouthed precedents, from old black letter books, will be
found in opposition to this procedure* We have come here to
answer to every charge, which may be urged against us: we
come here to answer in a precedented and constitutional man-
ner; but little did we expect that the court would decide in the
first instance^ instead of the grand jury; that the sentiments, of
the grand jury were to be prejudicated by an unconstitutional
decision ; and that the court itself was to commit its opinion on
certain points, which would be regularly brought before them
for argument and for decision at some of the ulterior stages
of the prosecution. " Why," said Mr. Wirt, " do you shrink?"
Sir, trace the course of the prosecution, and see who it is that
retires from the contest. On Friday the United States' attor-
ney was not ready ; on Saturday he was not ready ; and now
indeed he will not probably be ready before Monday next.
Sir, who is it that shrinks ? and yet does the attorney positively
aver, that he has evidence enough!
We are charged, sir, with addressing the multitude. Mr.
Wirt says that he could, but would not imitate the example;
but neither he nor Mr. Hay hath spared the theme. Sir, I will
not deny the justness of his eulogiums upon the administration;
but permit me only to remark, that there has been a certain
conduct observed towards colonel Burr which excites my deep-
est astonishment. When I look at the first man in the govern-
ment, I behold an individual whom I have long known, and
whose public services have commanded my admiration. When
I look at the second, sir, he has my whole heart. But, sir, the
inquiry which is now before us relates not so much to the in-
tention as to the effect. An order has been given to treat co-
lonel Burr as an outlaw, and to bum and destroy him and his
property. And sir, again; when the house of representatives de-
manded certain information, as it was their right and their duty
to do, the president granted it: and would to God, sir! that he
had stopped here, as an executive officer ought to have done.
He proceeded, however, to say that colonel Burr was guil^ of
a crime ; and consequently to express an opinion, which was
calculated to operate judicially upon the judges and the juries.
Such was the substratum of all the censures, which have been
heaped upon colonel Burr.
Mr- Randolph proceeded to touch upon a subject to which
Mr. Hay had referred. Colonel Burr was arrested in the Mis-
sissippi Territory. Was there no court there? was there no judge
of integrity to try him? arrested too after he had been acquitted
by a grand jury! Well! he was transported thence (with hu*
manity it has been said), dragged on by eight musqueteers, who
71
were ready to shoot him at a moment's warning; refused any
a]^>eal to the judicial authority; denied «even the melancholy
satisfaction of writing to his only child. Was all this humanity?
Dragged before this court, which derives its only jurisdiction
from a little speck of land on the Ohio. Yes f sir; but for that
Btde spot of an island, Virginia never would have enjoyed this
honour! What is all this, sir, but oppressive and bitter inhu-
manity? I trust, sir^ from what I have said, that no one will
think with Mr. Wirt, that I am shifting the question from co-
lonel Burr to Mr. JeiFerson. I should not have made the ob-
servations which have escaped me, but to show that my client
is justified by his situation in stating every objection that he
can to the present measure.
Mr. Randolph observed, that at least one disadvantage would
result from this inquiry; that it was not clear, as Mr. Hay had
asserted, that the affidavits would be laid before the court only,
and not before the grand and petit juries, for the grand jury
would sooh be possessed of the substance of them; and that it
was next to impossible for them to separate the impressions
thus illegally to be produced on their minds, from the weight
of the legal viva voce testimony.
Mr. Randolph said, that he did not understand Mr. Hay's
expressions about certain persons in holes and comers; that if
however he meant spies, there were none such employed by
colonel Burr; but, although the government certainly had em-
ployed no spies, yet it has excited so much prejudice against
colonel Burr, that it was sufficient to make every man in the
country desirous of contributing his full quota of information
against him. Mr. Randolph concluded with remarking, that
the present argument had perhaps been permitted to embrace
too wide a field of discussion ; and that there were two great
questions which he should submit to the consideration of the
court: 1st, Whether there were any precedents in favour of the
present motion ? and ^d. If a proposition like this, and of such
great importance, was adopted without any precedent to support
it, whether it would not expose every man in the country to the
danger of oppression f
Mr. Randolph contended, that this was a charge which the
judge had already decided, on a former examination; that it
was not a supplemental crime, but the old one; that perhaps
diere might be some little affidavit to splice out some defect in
the former evidence ; but what would be the consequence of
this proceeding? Day after day, another and another affidavit
would be brought forth. Facts like polypi, are easily cut into
two or three pieces ; each of which may be made to form a new
and entire body ; and each of those atoms is to require a new
recognisance. For one affidavit there must be a bail of 1000
72
didlars: another tOdavit, .another 1000 dollars; until Ac biu>
den of bi^l is. so ofipressive ^as to leave no other resource^ bat
in the four •walbof a ]>rten*
Mr. Hat. observed, that he should simply notice one re-
mark of Mr. Randplph^B« That geademan had used the ezr<
pression of ^^ pioneer of Uood;" but surely k would opt have es*
caped him, haui he but for one moment seriously reflected upon
the court .whom he addressed, upon the counsel he opposed, or
the government* Satisfied of 'diis, Mr. Hay said he should pass
the observation by, without further notice.
Mr. Randolph had stated,. that.no «iipilar case had occurred
in his thirty years practice. It was not wonderful that such a
case had not occurred in the time when that gentlen^an wa& at-
torney for the commonwealth. A great change has taken place
in the system of our gpyemment. At that time no fedend
court existed. The mpde of proceeding in the state conrts is
different from thatherj^. In the system of penal law established
in the commonwealth of Virginia, there is an examinkig court
intervening betVeen^e arrest and commitment of a prisoner,
and his being charged, before the grand jury; but this court
has. the i^w|ir ta ecnujoinr as well as to commit. Moreover, the
United(States are a piost extensive country, compared to that
of Virginia } a most material witness may now be 1500 miles
from t^e court, before which he is .to appear; and may be at
the same time at the head of an army; in all which circum*
stances, the federal and the state sovereignties are different. So
that this, difference* altogether defeau the application of Mr.
Randolph's experience to this subject, even if that experience
had been admitted as a good aufliority in the stale courts* But
even that gendeman would admit, that had a similar case oc-
curred before the state courts, the accused >vould have been
committed. Mr. Randolph asserts, that this motion is made to
draw forth the opinion of the pourt, and thus to prejudicate the
minds of the grand jury. But Mr. Randolph has certainly for-
gotten, that this intelligent and impartid jury are on their
oaths and their consciences ; and surely this court will not pay
so litde compliment to their independence, as to admit, that its
own opinion will be sufficient to bias their judgment; more
particularly too, when the point before the court is so different
from that before the jury. It is the business of the court to
commit; and of the jury to indict: and it is certainly the pri-
vilege of the court to decide upon written testimony, although
that point may not be perfectly established and settled as it
relates to the grand jury. How the court would decide upon
this point, Mr. Hay said, he could not pretend to know. There
is another consideration, which should be weighed by the op*
73
MBite tounaeL The grand jury is now already embodied.
They are ready to prooeed with any business which may be
brought before them; but my great object, said Mr. Hay/is to
prosecute odonel Burr on the charge of treason. I make this
declaration, because I believe him to have been guilty of it.
Let us suppose, however, that the grand jury was to discharge
colonel Burr, from the misdemeanor; and then that I was to
brin^^ the present motion* before the court; what resource then
would Mr. Randolph have? From the present proceeding,
however, Mr. Burr would derive the advantage of an imme-
diate trial; whereas, according to Ae other mode of proceed-
ing, weeks and months migbt escape, before he would be brought
to trial; and certainly it is, in every point of view, more desir-
aUe^ both for the government and himself, to terminate this bu-
siiaesa at once, than to impose upon us the necessity of moving
for an adjourned trial.
Mr. Randcrfph says, "We are ready; we were ready on Fri-
day; we were ready on Saturday, &c." Sir, there are two sorts
of readiness: one in point of {act, and one under certain circum-
stances* Now these gendemen will scarcely persuade me, that
they could be ready to resist the weight of evidence, if it were
ready to belaid before them ; but there is certainly no difficulty
in believing, that they are now ready to proceed to trial, when
die whole evidence, and particularly general Wilkinson's, is
not present. One more remark: Mr. Randolph has expressed
a reverence for Mr. Jefferson, which is not certainly derived
from trifling considerations. I will make but one remark, and
that gendeman will agree with me in the opinion: Survey the
many peopled globe, through all ages and nations, and you will
not find a man more anxiously bent upon promoting the liberty
of die peoi^e. This was cMtainly the idea which Mr. Ran-
dcdph intended to convey. Mr. Randolph next proceeded to
Mr. Madison, upon whom he has not hesitated to lavish the
most unreserved encomiums. Surely then, after this Solemn
declaration of the oldest counsel for the prisoner, we shall hear
no more about persecution. Sir, it is a state of things, which it
is impossible to reconcile with the amiable character ascribed
to>^the.two first officers in the government.
Mr. WiCKHAM observed, that he should offer a few remarks
on the supplementary arguments of Mr. Hay. That in this case
colonel Burr's counsel had called, they had a right to call, for
ffecedents; that Mr. Randolph, who had so ably represented
diis commonwealth, as a crimmal prosecutor for many years,
Ittd never known a single one to justify this motion; that how-
ever true it might be, that the state of Virginia was now of
saudler extent than the whole of the United States, yet it was
Vol. I. K
74
tlieB cut up into as small judicial districtSyas tlie Unitdd States a|
present are, smd that uie witnesses in a criminal prosecution
might have been scattered over those districts, as thev are said
to be in the present circumstances ; that Mr. RandolfA had re-
presented not one of those districts, but the whole; not only on
this side of the mountains, but beyond them ; and even the un*
cultivated region of Kentucky, where travellmg was at that
time liable to so many difficulties, and from which it was so
extremely laborious to transport the witnesses to this side of
the mountains; that it was not until Kentucky had been more
thickly populated, that a paiticular court had been established
there* And what is the case in England and her dependenci^?
Certainly that island is not equally extensive with the United
States; but her subjects may, at all events, be scattered over the
world. Why then, is there no .precedent in that country? Is it
not probable, that a man might happen to be as far from the
court of king's bench, as general Wilkinson is from this court?
and yet there is no precedent to justify this motion. What is
the crime? Is it of so little importance that this court, upon
the production of every little affidavit, should consent to hear
new motions for a commitment? This crime is treason! it is
^^a levying of war*' against the United States! and where is the
{iroof of it? where were colonel Burr's* forces ? ws|s his army
ike that of Bayes, kept in disguise? Wilkinson's testimony
cannot establish this fact ; for it is the opinion of the chief jus-
tice, that his affidavit does not at all bear upon this subject; and
yet two months have since elapsed, and no testimony has been
collected. Wilkinson's deposition contains an improbable^
mysterious tale, about a key and cypher. Mr. Wickham said,
that he would not, at present, expose this transaction; but doen
this mysterious tale constitute treason ? ^^ You, sir, hav6 already
decided, diat there is no treason in Wilkinson's deposition ; butt
were the man himself in court, what could he establish further,
than his deposition can do?" Mr. Hay is satisfied, that he has
sufficient evidence to convict colonel Burr. No man doubts
his ability, or his inclination to discharge his duty* Why, then,
does he not lay his indictments before the jury? Because, there
happens to be a man in New-Orleans, and one, perhaps, in the
East Indies; and, therefore, ^^to make assurance doubly sure,'^
be must wait for their appearance : and all this too, whilst the
gentleman most seriously protests against oppression and de-
lay. Though the gentleman may not be conscious of such s^
sentiment, as that of wishing to oppress colonel Burr, there
must still be something like it in his heart: but whatever the
motive may be, the result to ourselves is the same. It prodti*
ces delay, and all its consequent oppressions. No court should
sanction this proceeding. This case is like that of a
75
iHiose eause stands for triaL When subpoenas after subpcmas
have been issued; when sums after sums have been expended;
he moves for a continuance of his suit^ and at the very same
time, he insists upon the sufficiency of his evidence. Surely
the court would rule him to trial. Why is not the attorney for
the United States ready for trial ? He has, indeed, made a com*-
putation of time, to show, that Wilkinson could not have been
here before this period ; and he has besides, introduced an affi-
davit to show, that an express was on his way to Orleans, to
give him an early summons. There is however, nothing ia
proof, that the dl-awer of this affidavit was not imposed on, by
this express; or that the express himself was not mistaken, as
to the contents of his dispatches. And how stands the compu*
tation as to time ? The post goes from Washington to New«-
Orleans, in seventeen days. Mn Rodney left this city, in the
last of March. The express must, therefore, have reached
New-Orleans, about the 20th of April; and yet, where is
Wilkinson ? Though the Mississippi runs down to New-Or*
leans, and opposes a strong current to those Who ascend it,
yet it is surely a reasonable proposition, that on land it re-
quires no longer time to come thsm to go, and yet general Wii«
kinson is not nere !
Mr. Hay says, it is of no consequence, whether the grand
jury is present or not. But is this consonant with the sound
principles of law? Is it constitutional, sir, where there is a par-
ticular body, set apart for the investigation of facts, for the
court to step in, and rudely take this power from them ? He
says, that, perhaps, he shall not send up his biUs before the pre-
sent grand jury. But I trust in God, sir, that this determina-
tion will be overruled by the court ; and that if this prosecution
is ever to be closed, we may see the curtain dropt upon it now
and forever! .If, sir, the counsel for the prosecution obtain a
postponement of this trial, and for want of evidence on their
part, we might probably contend, that colonel Burr, if bound to
bail at all, should be held in a smaller recognisance than at pre-
senL But we shall waive this right. It is not our wish to dis-
charge the grand jury, but to set this question at rest forever.
We have said, that we were ready for trial. We are so, sir,
in fact, as well as in the abstract. The prosecutors say, that
we do not believe them to be ready : but how can the gentleman
suppose, that we mean to pay so poor a compliment to his ve-
racity, as to believe, that he acts upon his own facts, as if he,
himself, did not believe them to be true?
The gentleman, sir, has warmly eulogized the present admi-
nifitration. As a private citizep, sir, no man has less to say
with the politics of this country than myself. That gende-
man has drawn a picture of our national prosperity; and I am
i
76
happy to hope, that it is true to the life, in every thing, one fea-
ture only excepted. What, however, will he say of the persecib*
tion of my clientf Sir, let that gentkman draw the moatanimated
picture of our happiness, which his imagination can supply; let
it be howsoever cheering, or howsoever just, it will be but litde
alleviation to the wounds of my persecuted client, that he is the
only man in the nadon whose rights are not secure from violation.
Mr. Burr then rose and addressed the court to the following
eiFect:
I am not, I hope, sir, wasting the time of the court upon the
present occasion. The motion proposed, is admitted oo all hands,
to be important; and it is certainly a new one. Perhaps it was to
have been expected, that on a point so novel, some precedents would'
have been produced; but, in this expeaat ion we have been disap*
pointed. Its novelty will, however, be productive of another eif-
fect. It will still better qualify it for making another small fea-
ture in a picture of oppressions and grievances, which have never
been paralleled in the records of criminal l^ffr.
The case is this; no man denies the authority of the court, to
commit for a crime; but no commitment ought to {>e made, ex«
cept on probable cause. This authority is nece3sary; because po-
licy requires^ that the,re shoiild be some power to bind an accused
individual for his personal appearance, until there shall have been
sufficient time to obtain witnesses^ for his tri^; 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 Qught.^ be allowed to coUect
testimony against me I This time ought generally to be jimited;
but there is no ppecise standard on the subject; and mudt^ is ot
course left to the sound discretion of the court. Two months
ago, however, you declared, that there had been, time enough tb
collect the eviden.ce,.necessary to commit, on probable cause; and
surely, if thijs argument was good then, it is still better now^-
As soon aa a prosecutor has notice of a crime, he generaOy
looks out for witnesses. It is his object to obcain.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 ver}' 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 f So that it is
near forty days since the notice must have arrived at New-Or-
leans. But a vessel navigates the coast, from New-Orleans to
Norfolk, in three weeks. I contend, however, that witnesses
ought to be procured, from the very time when the crimes are said
I
77
to be oominkted. There is^ then^ jeio Zfclogy for the delaj of tha
prosecution, as far as it respects Ae only person for whom an
apology is attempted to be made*
There mre other serious objectsons to my ; sf tuati^n* .^JMiMSt J be
ready to proceed to trial ? True, «ar,l>ut then it must be in their
own way. Are we then on equal terms here? Certainly not*
And again, as to affidavits* The Unttod States can lunFe>com*
pulsory process to obtain them; but I have no suck advantage*
An ex parte evidence, then, is brought before this court, on a mo-
tion for commitment. The evidence on one side only isvexhibit-
ed; but if I- had mine also to addtice, it twould mobaUy icontra-
dict and counteract the evidence of the United States. Well, sir,
and these affidavits are put into the newspapers, and they fall into
the hands of the ffraod lury. I have no suflh means as diese, sir;
«^whe« then VZ'Z^ betw<^ t^ «av.n.«eat and
The opinion of the court, toay^is to he coounitted ngj^iast 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 deve-
loped. But my coun^ faavie *beea charged with declamation
against the government of iho United States. ^I certainly, sir,
sbaO not be charged vni^ dedjunatiqipd; hut surely it is an esta-
blished principle, sir, that no government is so high as to be be-
yond the reach of ciiticism; and it i^ more particularly laid down>
that this vigilance is more peculiarly necessary, when any go-
vernment institutes a prosecution : and one reason is, on account
of the vast disproportion of n^ans which exists between it and
the accused. But, it ever there was a case which justified this vigi-
latK^ At^is certainly the present one, when the government has
diapbyed such un^mmon activity. If, then, this government has
been ao peculiarly active against me, it is not improper to make
die -assertion here, for the purpose of increasing the circumspec-
donof the court. :.
Mr. Burr (^)served, that he meant by persecution, the harass-
bg of any individual, contrary to the forms of law; and that his
case, unfortunately, presented too many instances of this descrip-
Uon. He would merely state a few of diem. He said, that his
friends had been eveSry where seized by the military authorityi
a practice truly donsonant with European despotisms. He said^
that persons, had been dragged by compulsory process before
panticular tribunals, and compelled to give testimony against him.
His papers, too, had been seized. And yet, in England, where
we say they know nothing of liberty, a gentleman, who had been
seized and detained two hours, in a hack 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-
78
have killed his person, if he had been formally condemned fot
treason. He said, that even post-offices had been broken open,
and robbed of his papers; that, in the Mississippi Territory, even
art iiidictment was about to be laid against the postmaster; that
he had always taken this for a felony; but that nothing seemed
too extravagabt to be fttrgiven by the amiable morality of this
government. All this, said Mn Burr, may only prove that my
case is a solitary exception from the general rule. The govern*
ment may be tender, mild and humane to every one but me. If
so, to be sure it is of little consequence to any body but myself.
But surely I may be excused if I complain a litde of such pro«
ceedings. Mr. ^urr said, there seemed to be, something mingled
in those proceedings, which manifested a more than usual inclina-
tion to attain the ends of justice : as for as it related to himself,
perhaps, these things were of no account; but what was then to
be said of those and other measures, such as the suspension of
the habeas corpus act, which concerned the Whde nation ? If in
the island of Great Britain such a measure wad calculated to
produce so much disturbance, what kind of sensation ought it to
produce in this country.
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 agb, he proclaimed that there was a civil war*
And yet, for six months have they been hunting for it, and still
cktmot find otie spot where it existed. There was, to be sure, a
most terrible war in the newspapers; but no where else. When I
appeared before the grand jury, in Kentucky, they had no charge
to bring sgainst me, and t was consequendy dismissed. Whc^n I
ajppeared for a second time, before a grand jury, in the Missis*
sippi Territory, there was nothing to appear against me; and the
judge even told the United States attorney, that if he did not
send up his bill before the grand jury, he himself would proceed
to name as many of the witnesses as he could, and bring it before
the court. Still there was no proof of war. At length, however,
the Spaniards invaded our territory, and yet, there was no war.
But, sir, if there was a war, certainly no man can pretend to say^
that the government is able to find it out. The scene to which
they have noW hunted it, is only 300 miles distant, and still there
is no evidence to prove this war.
Mr. Burr requested the court to consider the consequence
which would now result from a conunitment for treason; that if
he were bound now, the law of Virginia declared, that he
should so remain until the next term; that this delay was the
very inconvenience he would wish to avoid; and that he pre-
sumed he ws^ to remain in prison six months, until they could
find out this war-
Here the arguments closed, and the court then adjourned till
to-morrow morning at ten o'clock.
79
Tuesday, May 26th, 1807.
Tht foUovnng Opinion was delivered by the Chief yustice of the
United States^ on Mr* Hay^s motion to commit colonel Burr.
IN considering the question which was ai^ed y^t^rday, it
appears to be necessary to decide:
lat, Whether the court, sitting as a court, possesses the power
to commit any person charged with an oifence against the United
States.
2dly, If this power b^ possessed, whether circumst^cea
exist in diis case which ought to restrain its exercise.
The first point was not made in the argument, and woul4, if
decided against the attx>rDey Cor the United States, only change
the mode of proceeding. If a doubt can exist respecting it, that
doubt aiises from the ombsion in the laws of the Upited States
to invest their courts, sitting as courts, with the power in ques-
tion. It is expressly given to every justice and judg^, but not tQ
a court.
This objection wa9 not made on the part of colonel Svrr, and
is now mentioned, not because it is believed to present any in-
trinsic difficulty, but to show that it has been considered.
Tliis power is necessarily exercised by courts in discharge of
their fiinctions, and seems not to have been expressly given; be-
cause it is implied in the duties which a court must perfon^, and
the judicial act contemplates it in this light. They have cogni-
sance of all crimes against the United States; they are com-
posed of the persons who can commit for those crimesi; and it
is obviously understood, by the legislature, that the judges n^ay
exercise cdUectively the power which they possess individually,
so far as is necessary to enable them to retain a person charge4
with an offence in order to receive the judgment which ipay
finally be rendered in his case. The co.urt say, this is obviously
understood by the legislature; because there is no clause expressly
giving to the court the power to bail or to commit a person, who
appears in discharge of his recognisance, and against whom the
attorney for the United States does not choose to proceed; and yet
the thirty-third section of the judicial act evinces a clear under-
standing in the legislature, that the power to take bail is in pos-r
session of the court.
If a person shall appear in conformity with his recognisance,
and the court passes away without taking any order respecting
him, he is discharged. A new recognisance, therefore, or a £om-
mitroent on the £ulure to enter into one, is in the nature of an
original commitment, and this power has been uniformly exer-
cised.
It is believed to be a correct position, that the power to com-
mit for offences of whiph it has cognisance, is exercised by every
80
court of criminal jurbdiction, and thtt courts as well as individual
magistrates are conservators of the peace.
Were it odi(enHrise,4he consequence would <»ily be, that it
UTOuld become the duty of the judge to descend from the bench,
and, in his character as an individual magistrate, to do that which
the court is ashed to do. ■
If the court possesses tha power, it is certainly its duty to hear
the motiM wlikh lias been made on the part of the United
States; for, in cases of the character of that under consideration,
its duty and its power are coextensive with each other. It was
observed when the moti<Hi was made, and the observation may
now be repeated, that the arguments* urged on the part of the
accused rather prove the motion on the part of the United States
unnecessary, or that inconveniences mfty result from it, than the
want of a legal right to make it.
The first is, that the grand juiy being now in session ready to
receive an indictment, die att«vmey for the United States ou^t
to proceed by bill instead of applying to the court, since the atity
purpose of a commitment is to bring the accused before a^grand
jury. This statement contains an intrmsic error -which destroys
Its operation. The conimiiment is not made for the sole purpose
of bringing the accused b^fisre a grand jury; it is made for the
purpose of subjecting him personally to the judgment of the law,
and die grand jury^is only, the fimt step towards that judgment.
If, as has been argued, the commitment was simply to detain the
person until a grand jury could be obtained; then its operation,
would cease on the assembling of a grand jury; but such is not.,
the fact. The order of commitment retains its force while the
jury is in session, and if the prosecutor does not proceed, the
court is accustomed to retain a prisoner in ccHifinement, or to
renew his recognisance to a subsequent term.
The arguments drawn from the general policy of our laws;
from the attention which should be bestowed on prosecutions,
instituted by special order of the execudve; from the peculiar
inconveniences and hardships of this particular case; from the
improper etfects which inevitably result from this examination,
are some of them subjects for the consideration of those who
make the motion, rather than of the court; and others go to the
circumspection with which the testimony in support of the mo-
tion ought to be weighed, rather than to the duty of hearing it.
It has been said that colonel Burr already stands charged with
treason, and that, therefore, a motion to commit him for Uie same
offence is improper. But the fact is not so understood by the
court. The application to chai^ge him with treason was rejected
by the judge to whom it was made, because the testimony oflered
in support of the charge did not furnish probable cause for the
opinion, that the crime h^d been committed. After this rejec«
taon, colonel Burr stood, so far as respected his legal liability to
81
)iave die charge repeated, in precisely the same situation as if it
had never been made. He appears in court now as if the crime
of treason had never before been alleged against him. I'hat it
has been alleged^ that the government had had time to collect
testimony for the establishment of the fact, that an immense
crowd of witnesses are attending for the purpose, that the prose-
cutor in his own judgment has testimony to support the indict-
ment, are circumstances which may have their mfluence on the
motion for a commitment, or on a continuance, but which can-
not deprive the attorney for the United States of the right to
make his motion. If he was about to send up a bill to the grand
jury, he might move that the person he designed to accuse, should
be^rdered into custody, and it would be in the discretion of the
court to grant or to reject the motion.
The court perceives and regrets that the result of this motion
may be publications unfavourable to the justice, and to the right
decision of the case; but if this consequence is to be prevented,
it must be by other means than by refusing to hear the motion.
No man, feeling a correct sense of the importance which ought
to be attached by all to a fair and impartial administration of
justice, especially in criminal prosecutions, can view, without
extreme solicitude, any attempt which may be made to preju-
dice the public judgment, and to try any person, not by the laws
of his country and the testimony exhibited against him, but by
public feelings, which may be and often are artificially excited
against the innocent, as well as the guilty. But the remedy, for
a practice not less dangerous than it is criminal, is not to be
obtained by suppressing motions, which either party may have a
legal right to make.
If it is the choice of the prosecutor on the part of the United
States to proceed with this motion, it is the opinion of the court
that he may open his testimony.
Mr. Hay then rose, and observed, that he was struck with
the observations of the court relative to *^ publications," and he
would attempt if possible to make some arrangement with the
counsel on th^ other side to obviate that inconvenience; and he
understood they were disposed to do the same.
The counsel on both sides then retired by permission of the
court for this purpose. They returned in a short time; and Mr.
Hay informed the court that the counsel for the United States^
and for colonel Burr, not having yet been able to agree upon any
arrangement which would attain his object, namely, that of having
colonel Burr recognis'ed in a sum sufficiently large to insure his
appearance to answer the charge of high treason against the
United States; without incurring the inconvenience resulting
from a pubKc disclosure of the evidence at this early stage of
die pfxKeeding, wished to have further timte for that dc-
Vor^ I. L
82
sirable purpose. This was granted by the courts and it then
adjourned till next day.
Wednesday, May 27th, 1807.
Mr. Hay informed the court, that all hopes of the arrange-
ment which he had mentioned yesterday were at an end: for he
had received a letter from colonel Burr's counsel, positively Te-
fusing to give additional bail. He therefore deemed it his duty
to go on with the examination of the witnesses in support of his
motion to commit Mr. Bum He observed, that he regretted
extremely that it became necessary in his judgment to pursue
this course. He felt the full force of the objections to a disclosure
of the evidence, and to the necessity of the court's declaring its
opimoD, before the case was laid before a jury; but those consi-
derations must yield to a sense of what his engagements to the
United States imperiously demanded of him: that in adducing
the evidence, he should observe something like chronological or«
der. He should first read the depositions of the witnesses who
were absent, and afterwards bring forward those who were pre-
sent, so as to disclose all the events, as they successively hap-
pened.
Mr. WicKHAM stated that there were two distinct charges
against colonel Burr. The first was for a misdemeanor, for
which he had already entered into recognisance; the second
was a charge of high treason against the United States, which
was once proposed without success, and is now again repeated.
On this charge the United States must substantiate two essential
points: 1st, That there was an overt act committed; and 2dly,
That colonel Burr was concerned in it. Every thing that does
not bear upon these points is of course inadmissible ; thp course
therefore laid down by the attorney for the United States is ob-
viously improper. He proposes to examine his witnesses in a
kind of chronological onder.
Colonel Burr requires that the evidence should be taken in
strict legal order. The court and even the opposite counsel will
see the propriety of observing this order. If the attorney for the
United States has affidavits to produce, let him first demonstrate
that they have a right to produce them. We first call upon him
to prove, by strict legal evidence, that an overt act of treason
has been committed. If he cannot establish that one point, all
the evidence which he can produce, is nugatory and unavailing.
Mr. Hay had no doubt, that the gendeman would, if he could,
suppress all the evidence; that although that gendeman had been
so good as to prescribe for him the course he ought to pursue^
he should still pursue his own course; and he would assure
that gentleman, tthat he was almost the last person in the world,
whose advice on the present occasion he would pursue. Mr. Hay
83 '
obaerved, that he could not consent to such a separation of the
evidence, as that gentleman required; that he should lay all his
evidence before the court, and that the court must separate for
themselves*
The two charges which are brought against Aaron Burr are
naturally and intimately blended. They form distinct parts of
one. great design. What that great design was, in all its bearings
and ramificaticms, I am not absolutely certain; but I have always
conceived, that before Mexico was invaded, New-Orleans was
to be taken. How then is it possible to separate these two great
aUegadons? This monstrous design consists of two great plots;
both going on together; and both so strongly connected, that
accomplishing the one is preparatory to accomplishing the other.
If Aaron Burr's object was to plant his standard in Mexico, he
was first to have seized the shipping and banks of New-Orleans.
We ask then, how can we separate line by line, and word by
word, the evidence produced to prove these two distinct allega-
tions? The designs are connected: and the evidence is .connected.
Mr. Burr rose to speak, when Mr. Hay proceeded to the fol-
lowing effect : I have a litde more yet to say. If, sir, exceptions
are thus to be continually taken to the most common measures;
if in this way every inch of ground is to be disputed, contra-
ly to every practice that has prevailed in.otu* country; in-
stead of ten hours, or ten days, this trial will take up ten years.
What an extraordinary proceeding is this, sir ! Why, sir, we are
not to steer our course even five inches without encountering
some unusual difiiculty or other ! and yet these gentlemen talk
of precedents. And where, sir, are the precedents for this, that
the counsel before an examining court is to be instructed how to
bring out his evidence ? I never saw such a thing done before;
such a thing ought not to be done. It is novel in itself, it is im-
possible to be supported. Gendemen may make motions as they
pkase: but they will not drive me from my purpose. I will or I
win not produce my evidence, whether it pleases them or not.
And sir, it is a poor compliment indeed that these gentlemen of-
fer to the bench whom they address! If a deposition states any
thing or a wimess says any thing which is irrelevant to the case,
cannot the court be trusted widi these distinctions? Cannot they
decide, whether this evidence is to be weighed,or that to be reject-
ed? DcLthey distrust the judgment of the court ? No, sir, they
do not; but they wish to hamper us with every trifling difficulty,
which they can throw into our path. The present, sir, is a most se-
rious allegadon. It affects the life and character of the accused.
He has come forward with assertions of his own innocence ; and
he charges us with persecution. But, sir, does it evince any con-
sciousness of innocence, thus to be going against every precedent
established in this or any other country ? Sir, I trust, that the
court will go on in spite of all opposition.
84
Mr. WiCKHAM stated, that having taken the liberty of sug-
gesting this course of proceeding, he should advance a few ob-
servations on it; and he did this the more readily, because it
had been insinuated that no man, standing like himself as a pro-
fessional man, would have made a modon of this sort, f Mr. Hay
declared he had said no such thing.] Mr. Wickham said he had
rights as counsel for his client, and he had rights belonging to
himself. No man is hea^d for himself; but so long as they employ-
ed professional men to defend them, these had a right to pursue
the best course they could devise for the benefit of their client.
He would therefore go on.
Mr. Hay speaks of two distinct charges; the invasion of Mex-
ico, and the seizing of New-Orleans : but he declares them to be
necessarily blended. How sof Could not a man "levy war**
against the United States without an invasion of Mexico ? In Penn-
sylvania we have seen an insurrection against the United States,
but no invasion of Mexico. Much is said of the loss of time,
and of certain difficulties thrown in the way of the prosecution.
As to the first, sir, let the world decide whether he or we have
most pleaded for delay; at all events, we cannot entertain any
fear that this court will be impatient. As to the difficulties in
their way, we will say this: let the gentlemen pursue a regular
course ; let them bring this business before the grand jury, and
we shall make no objections. But, sir, if they pursue this course
over and over again; if they are continually throwing difficulties
in our way ; we shall mete out to them the same measure
which they mete to us. Who has ever known a proceeding
like the present? Who has ever heard of the practice of com-
ing out at such a stage as this with a distinct substantive
charge, not growing out of the evidence before the court, but
from other sources? Surely these gentlemen do not cry out for
mercy : they stand upon the law ; and law they shall have. Gen-
tlemen say, that no such exception as thi^ was evei' taken before
an examining magistrate. But, sir, where are the reporters that
attend private magistrates, to record th^ir precedents? Magistrates
are to go by law ; and what law ? They must observe the rules of
evidence. Would gentlemen introduce their witnesses without
swearing them ? But the court must have all the evidence before
them ; and " they must separate" the good from the bad: but
is this consistent with common sense ; is it consistent with the
books? The practice has always been, when an attorney intro-
duces a writing into court, for the court to ask what he is to prove
by it ; when he introduces a paper, to show the general contents
of that paper. This was the practice on the memorable trials of
Hardy and Tooke in England. In chancery business, indeed, a
practice has crept in for the judge himself to read papers with-
cmt knowing any thing of their general contents ; but thb is done
85
merely for the sake of convenience, and will not certaiidy apply
to criminal prosecutions.
It is asked, ^^ Are we afraid to trust the court" with this evi-
dence ? No, sir, we are afraid to-trust the court with nothing :
but we do fear to prejudicate the mind of the grand jury, by this
premature and illegal exhibition of evidence. Let the time come,
when colonel Burr is to come regularly before the jury, and we
shall then see who- shrinks from the testimony. A number of
other remarks have been made, sir, about c(donel Burr's appre-
hensions. All propriety and decorum have been set at nought:
every idle tale which is set afloat has been eagerly caught at.
'I'he people here are interested by them; and they circulate all
over the country. Sir, if the attorney for the United States shall
choose to send up his bills before the grand jury, then I hope the
whole evidence will be laid before the world, and we shall hear-
no more of rumours and prejudices.
These gendemen say, ^^ Shall you pretend to order us; shall
you dictate ?" No, sir, xhe law must dictate. The gemdemen, in-
deed, have produced a series of irrelevant writings and papers;
and they must, forsooth, pursue a chronological order. No, sir,
away with such informalities. Let gentlemen prove an assem-
blage of men for war. Let them prove the overt act. If they do
not, I confidently hope, that colonel Burr will be discharged.
Mr. Wickham here read a quotation from Foster's Obcourses
on High Treason.
Mr. Burr did not expect an opinion of the court, since no
motion had been made. Mr. Wickham had only given notice to
the opposite side, that they should follow the strictest rules of
law. If it was for a suit of 10/. only, he should ask for the laws
of evidence.
The Chiev Justice said, it would certainly be better, if evi-
dence was produced to prove the facts first, and the evidence to
show their colouring : for no evidence certainly has any bearing
npon the present case, unless the overt act be pi*oved. However,
if the attorney for the United States thinks the chronological or-
der the best, he may pursue his own course; but the court trusts
to turn, that he will produce nothing which does not bear upon
the case.
Mr. Wirt. — ^We coincide with the opinion of the court, that
an overt act ought to be proved, and that we ouglu to produce
no evidence at all, unless we believed we had enough to prove
the overt act. We do believe that we have sufficient evidence for
this purpose ; but we think it best to pursue something like a
chronological order: to take this conspiracy in its germ, to go on'
Step by step, and to trace out every event as it subsequently
arose.
\
96
Mr. Hay observed that it would be necessary to give evi*
dence to show the temper of mind of the accused : as for in-
stance, Mr. Stoddert would show his hostility to the administra-
tion, and even to the government. To show this disposition of
mind might lead to treasonable designs, to f^ai^s, and tbence to
overt acta. This was the natural order of things, and of the evu
dence. . He hoped, that in drawing out this evidence, the court
would rely upon his candour and humanity, that he would pro*
duce none which he did not believe to bear upon the fact.
Mr. Randolph said, that however he might respect that gen-
tleman's humanity, he knew too well the temper of any proseou-
tion to expect much from it. They are for strict law, said Mr..
Randolph, and so are we. In England, before a witness is heard^
it must be stated in general terms what he intends to prove.
The same practice ought to prevail here. Let the attorney for
the United States state the substance of each part of the tesdmony
he is to produce, and the court will then perceive, whether it is cal-
culated to bear upon the case itself, or whether it is only intend-
ed to inflame the public prejudices against colonel Burr. We
demand, that the overt act be first proved : without that, the ac-
cessorial evidence is of no kind of use. Let that be established^
and the accessory facts will thsn have their weight. I hope, sir,
if the attorney for the United States does not introduce his
evidence on that point, we shall be at liberty to suppress all the
irrelevant testimony.
Mr. BoTTs said he should leave it to the court.
Mr. Hay. — Agreed.
The Chief Justice decided, that the attorney for the Uni-
ted States might pursue whatever course he thought best.
Mr. BoTTs. — Send us the written testimony before you sub-
mit it to the court.
Mr. Hay. — As I said before, I shall take up the deposidons
first, and then the viva voce testimony in a chronologiod order*
I shall first introduce general Wilkinson's deposition.
Some desultory conversation then ensued, between Mr. Hay
and Mr. Botts, on the latter demanding the liberty of examin-
ing the deposition. At length, Mr. Hay handed the paper to him.
Mr. Botts then addressed the court.
Mr. Botts — In my objections to general Wilkinson's affidavit,
I may be compelled to question the correctness of principles, in
favour of which the court has expressed an impression. It has
been our misfortune, to have been drawn out into a desultory dis-
cussion of some of the propositions, fixing limits to the examina-
tion; when these propositions had such relation to each other.
87
and among themselves, as to render it difficult to fortify one A
£ectaaDy against assault, without the support of the others. And
although the subject was not wanting in novelty or importance,
to fit it for solemn argument, yet the complaints of the prosecutor,
so often, so loudly, and so causelessly repeated, have forced from
the court a premature intimation of judgment. I feel the per-
pkzity of my situation most sensibly, and shall hope for the in*
dulgence of the court, if I should unwarily stray into the seem-
ing indecorum of resisting, now and then, an inclinadon of the
mind of the bench. Whenever I venture into a scene so deli-
cate, I shall present to the court authorities not to be resisted.
llie opinion of the supreme court overruling the objection,
that the oath administered to general Wilkinson was extrajudi-
cial, fixes the law for this court. The best evidence that the nature
of the case will admit of, should be produced. This rule applies
to every stage of every case in every court. The failure to produce
die best evidence that the nature of the case admits of, furnishes a
presumption, that the higher evidence left behind, would, if pro-
duced, niake against the party offering the weaker. All this is
familiar in civil cases, where 40^. may be the quantum of interest
in litigation. The benefit of this common law, and common sense,
ought not to be lost, when the liberty of a citizen is concerned;
when a six months' imprisonment in a dungeon may be the ob-
ject of the motion. The suprenie court considered an affidavit
as the best evidence the case then admitted of. The accusation
was fresh, and neither time nor means had been allowed for pro-
curing a personal attendance. Now, the accusation is old, and
die government has had all the necessary means of bringing the
witness here* The circumstances do, therefore, now admit of
higher evidence than an ex prirte affidavit.
The viva voce testimony of general Wilkinson is the right of
my client. No man should be deprived of the benefit of a cross
examination, without necessity. You have in another place said,
sir, that it was to be made out only by inference from general
Wilkinson's affidavit, that colonel Burr was the writer of the
letter in cypher. If the witness was here, he would impugn that
inference, by swearing that it was not in colonel Burr's hand writ-
ing. If general Wilkinson was present, would you admit his af-
fidavit? If he ought to have been present, and the government
would not get him^ shall the prosecution be favoured for its
negligence ?
But the present charge is confined to high treason, in levying
war against the United States; and the great question is, whether
Wilkinson's evidence is in any form pertinent to the charge ? I
do not mean to urge the objection, that if it develops any crimi-
nri purpose, it is not a treasonable purpose; for this construction
has been setded by the supreme court Admitting for the time,
diatit contained evidence of a treasonable purpose, and that the
88
dpinton of the supreme court is to be orerruled, still the evidence
would be most impertinent upon the present charge of €u:tual
treason.
I have alluded to legal propositions, intended to be pressed^ as
jTormiiig legal restrictions upon the task in which we are engaged.
I will first .cophine them, that their fitness to each other, and
their collective effects,, may Jse seen* My second process will be
to disunite, theip, and by^ah analytical comparison of them with
the known principles of our treason laws, lo ascertain their
legality. - - ; ...
No evidence of any matter .ought to be given, until proof shall
be adduced, that there Was an actual war levied in the district of
Virginia; and^^uptil it ivp^pved that an overt act of treason, in
that war, was done by coMnel Burr, which proofs shall be by
two witnesses at least First, It must be proved that there was
an actual war. ' A war consists wholly in acts, and not in intea-
tions. Tbe^f^ts must be in themselves acts of war; and if they
be not so int^qsically, words or intentions canndt make them so.
In Englaad, when conspiring the death of the king was treason^
the quo animo formed the essence of the oflFence; but in Ame*
rica, 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 |i
war was levied. Intentions are always mutable and variable; the
continuance of guilty intentions is not to be presumed. If this
were not the case, the avowal of a purpose to levy war would
fix the crime. For a proved intention might be attached to the
next innocent act oiF the person who formed it; and so, prepara*
tions of emigration be turned into a levying of war. It has been
eloquendy declared, that war cannot exist in a closet, or a cor-
ner; but when levied, it must be in the face of the world. This
cannot be true, if the recesses of the bosom are to be explored
for any of the ingredients in the composition of the crime of le^
vying war. The guilty intention must be made manifest from
the act alone. General Wilkinson professes to know nothing
but of intentions, which are not evidence of acts.
Secondly, The war must not only have been levied, but colo-
nel Burr must be proved to have committed an overt act of trea*
son in that war. A treasonable intention to cooperate is no
evidence of an actual cooperation. 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, cooperating by acts,
or, in the language of the constitution, be committing overt acts.
The acts of associates, in a treasonable plan, in countries where
the doctrine of constructive war prevails, can never be given in evi-
dence, againslt the accused, until after the plan has been proved on
89
the latter, knd until such acts shall appear to have been within
the limits of that plan. 1 East's Crown Law, 96, 97. Part
of the proof in this a£Sdavit is of the declarations of a sup-
posed associate, as to what the plan itself was* But in this coun-
try, as there cannot he a constructive treasonable war, plans, and
acts of associates, can only come in when the former have been
executed, and the latter have been visibly and publicly assisted*
Tucker's Black, vol. 4. Appendix B.
Thirdly, The overt act by the accused, in an actual war, must
not only be proved, but it must be proved to have been commit*
ted within this district. The fifth article of the constitution of the
United States, and the eighth article of the amendments to the con-
stitution, require, ^t the trial shall be by a jury of the district
where the ofleoce was committed. The oath of the grand jury
is, accordingly, to inquire of offences within the district. The ju-
risdiction of this court is also limited, by express law, to offences
within the district; and it is obviously true, that the court's juris-
diction cannot be broader in an incipient inquiry than it would
be in its connexion with a jury on a final triaL Doctor Black-
stone, in the fourth volume of his Commentaries, 303, refers to the
oath of the grand iury, ^ to inquire" into offences committed
within the body of the county, and denies the right of the grand
jury to inquire into facts out of the county. In preparing a
work fi3r the grand jury the court cannot disregard the limits of
their power. The crime to be committed in the district must be
wholly committed there. At the common law, if the stroke
was given in one county, and the person striken died in another^
the murderer could not be prosecuted in either. To remedv this
defect, and to provide for others similar to it, many provisions
have been made by the English parliament. 4 Black. 303, 4, 5.
But the English parliament never did alter the common law, as
it respected the crime of levying an actual treasonable war. Ke-
lyng, 15. The constitution and act of congress have both adopt-
ed the rule of location. Tucker's Blackstone, vol. 4. Appendix B«
49, 50, 51. Granting then, that intention may make that war,
which would not otherwise be so, still, as a formed intention is
no proof of its own continuance or execution, the intention must
be proved to have been cotemporaneous and homogeneous with
the act in the district. In this view, the intention forms a consti-
tuent part of the offence. If one constituent part of the offence
can be brought from without the district, and coupled with others
in the district, anyone constituent part, or number of constituent
parts,of the crime, may be brought from without the district. Then
one component part only happening in Virginia, out of one hun-
dred necessary to its completion, would give this court jurisdiction;
and thence one, out of one himdred parts of a crime, would be
a crime within the meaning of the jconstitution. Let us view the
consequences of this logic*
Vou I. M
Upon proof against colonel Burr toa«hing a crimCf part of
wbtch'was committed in this district, he may b« tried and ac
quitted. In Ohio he may be indicted, and evidence may be
prepared touching the same crime. Can he plead autrefois ac-
quit in bar, by averring, that the crimes charged in the two
states was one and the same! His averment would be against
the record of the indictment charging a complete separate
crime in each district. Will you, sir, put upon the constitution
such a construction as will subject a citizen to be hunted dowfi,
by trial after trial, in state after state, as long as the perse*
cuting spirit of a wicked executive may last? Do not under-
stand me to allude, in this, to the present administration, the
characters of which I have been in ^e habit of admiring; but
the construction now to be fixed must go down to posterity,
and may be made instrumental in effectiqg the worst of state
oppressions.
Remember that colonel Burr has forborn to avail himself
of this legal principle in Kentucky and in the Mississippi Ter-
ritory, in order that the merits of his case might come before
the inquests ; but it ought now to be agreed that he should pro-
tect himself from being harassed further, by calling into ex-
ercise the great principles of the constitution, declaring that no
man shall be twice put in jeopardy of his life for the ^ame of«*
fence. See amendments to constitution. Now, what part of
the affidavit speaks of a fact within the district ?
Fourthly, The overt act of treason bv colonel Burr within
the district must be proved by two witnesses. The consti-
tution ani act of congress require two witnesses, not only
to the act, but to the treasonable quality of the act. After
full time has been afforded to collect all the witnesses in
the power of the government, the accused ought not to be de-
prived of his liberty, unless it was believed that the evidence col-
lected would convict him: imprisonment is only intended for
trial and not for punishment. By what does general Wilkin-
son's affidavit make out intentions ? The answer is, by the con-
fessions of the accused or of his supposed associates. The
Confessions of the accused, by the express words of the consti-
tution, are not evidence, unless made in Open court. Confes-
sions are often admitted, from necessity, to get at crimes that
deal in secrecy; as larceny, forgery and robbery : but the safety
of the people requires that crimes, which deal in publicity, as
does the crime of a treasonable war, should not be proved by
evidence so incapable of exculpatory proof. When ah honour-
able gentleman (Mr. Giles) was challenged the other day
upon a suggestion of his having expressed himself upon the
case of the accused, he said he was indisposed to hear evidence
of unguarded expressions, in which the witness might have
91
tiiista][en his meaning; have misunderstood what he said, or
not have heard all that he said; or have substituted his own
inferences for the words of the speaker. Blackstone and Fos-
ter have chatacterised it to be the most dangerous species of
evidence, ever liable to misconstruction and abuse. But if the
constitution has proscribed it, why now question its exclusion?
If the confessions of the accused, out of court, could not be
ievidence, against him, could the confessions of real accom-
plices be evidences against him? Yet the evidence of Wilkin-
son relates, in part, to the confession of pretended accomplices,
no way proved to have been authorised by cofenel Burr to say
or to do any thing.
But why, it may ht asked, id colonel Burr afraid to hear il-
legal evidence, if he is consciously innocent?
We see witnesses from different and distant parts of the
United States, whose names, faces and characters, are alike
unknown to colonel Burr. He cannot ascertain upon what pans
of his life or conduct they are expected to speak, or upon what
information their evidence may rest. His character has long
been on public torture; and wherever that happens, with either
a good or a bad man, the impulses to false testimony are nu-
merous. Sometimes men emerge from the sinks of vice and
obscurity into patronage and distinction by circulating inte-
resting tales, as all those of the marvelous kind are. Others,
from expectations of office and reward, volunteer; while timi-
dity, in a third class, seeks to guard against the apprehended
danger, by magnifying trifling stories of alarm. These works
of exaggeration and propagation are frequently the subjects of
idle amusement. The authors, until they commit themselves,
have no just conception of the mischiefs they are hatching;
but when they are afterwards called to give testimony, perjury
win not appal them, if it be necessary to save their reputations
for consistency or veracity. If the evidence be restricted within
the legal limits, the purest of characters, under accusation of
treason, will have hazard enough to run. A judge, whose ex-
perience of these dangers was great, thus speaks on the subject:
** The rule of rejecting all manner of evidence in criminal pro-
secutions, that IS foreign to the point in issue, is founded on
sound sense and common justice. For no man is bound, at the
peril of life or liberty, fortune or reputation, to answer, at once,
and unprepared, for every action of his life." Few, even of the
best of men, would choose to be put to it. And had not those
concerned in the state prosecutions, put of their zeal for the
public service, sometimes stepped over this rule in the case
of treason, it would, perhaps, have been needless to have
made an express provision against it in that case. Foster's
C. L. 246.
k
92
Mr. WiCKRAM regretted that so much time had been co»-
sumed ; but hoped the court would acquit them of any inten-
tion to waste it. When any illegal motion was introduced by
the opposite counsel, he «felt it as a serious duty due to his
client to resist it with firmness* That for his own part he should
not forget that he was before the circuit court of the United
States, nor should he so far lose his respect for their discern-
ment as to bring forward motions, which he believed to be ille-
gal, only to waste the time of the court; that lie hoped none
but legsd evidence would be suflfered to be introduced ; none
but competent witnesses to be heard ; and if this rule was not
rigidly adhered to, what was to prevent the counsel on the other
side from producing any and every kind of evidence that they
pleased?
It cannot be supposed, said Mr. Wickham, that we are afraid
of this affidavit. What is in it, which has not been already
known and scattered in every loose sheet of a newspaper
throughout the United States? It is not that we resist it in
point of fact; but on the ground of principle. We wish two
points to be settled: are affidavits to be read at all on such a
motion, and at such a crisis of the prosecution as this I and if
so, ought they to be read if the witnesses themselves were
present? Would it be right, if they were in the next street or
the next county? Would it in fact be right if there was time
enough to produce the ^ viva voce* testimony itself? Mr. Burr
had a right to be confronted with general Wilkinson. He had
a right to cVossquestion and examine him on all the state-
ments which he has made. The government had power to
bring him here. Why is he not here ? Ought not some satisfac-
tory excuse to be made for him ? He is an ofl&cer of this go-
vernment; and the government might have procured his atten-
dance, as well by a special order as by a civil process. Has any
subpcena been taken out, inquired Mr« Wickham, addressing
himself to the clerk ?
The clerk replied, that no subpoena filled up with general
Wilkinson's name had issued from his office; but that blank
subpoenas had been taken out.
Mr. Wickham. — No one knows, sir. There was time enough
to have him here. The mail travels from Washington to New-
Orleans in seventeen days. He might have come; but if he has
not, why is not some satisfactory excuse brought forward? We
want, sir, to see this gentleman crossexamined. We want to
see him confronted with other witnesses. This is one ground
on which we object to the production of this affidavit.
Another ground is, that according to the decision of the su-
""preme court of the United States, this affidavit does not bear
93
upon the present motion. Mr; Swartwout, who was said to be
connected with colonel Burr, was discharged by them, because
this affidavit did not apply to the charge of treason. Are coun-
sel then to be suffered to produce testimony on any subject
that they please? A third objection is, that. general Wilkinson
does not relate a single act, committed in the district of Vir-
ginia. In Virginia? no, nor any where else. The attorney for
die United States says, that he will prove the overt act here-
after. But, sir, I repeat it, that the rules of evidence apply not
only to the admissibility of evidence, but to the order in which
i( is to be produced. Let them first prove an overt act, if they
can; and then they are at full liberty to prove the colour of it.
Again, sir, this deposition is not the best evidence which could
be produced, and which the laws require. General Wilkinson
speaks of a cyphered letter, and of its contents, as well as he can
make them out. Now, sir, where is this letter; and where is
the key to it? Why are they not here? Why are they not pro-
duced before you? For these reasons, Mr. Wickham hoped, that
the court would not suffer the affidavit to be read in evidence.
Mr. HAT.-r-We, shall not, sir, be carried from our course by
qieecbes, however long or animated they may be. But, sir, per-
mit me to give those gendemen a litde informadon. Why talk
of the affidavit before you? Do these gendemen know, that we
can posidvely prove the astonishment, the regret, and the de-
nunciation which escaped from Mr. Burr, when he first heard
of the publication of his cyphered letter! Let them first know
what we can prove, before they abandon themselves to their
triumph. General Wilkinson's affidavit is the first in the series
of our proofs, and it is for this reason that we wish to coiri-
mcnce with it. *
Mr* Edmund Randolph. — Sir, we do not know what those
gentlemen expect to prove; but we do object to the production
of general Wilkinsons affidavit from what is already known:
ve know it to be perfecdy inapplicable to the present question.
Sir, this species of evidence is uirecdy in the face of our bill of
rights, and of the constitution of the United States. ^^ In all cri-
** minal prosecutions, the accused shall enjoy the right to a speedy
^* and public trial, by an impartial jury of the state and district
^ wherein the crime shall have been committed; which district
** shall have been previously ascertained by law ; and to be in«
^ formed of the nature and cause of the accusation; to be con-
^ fronted with the witnesses against him, &c." Cok>nel Burr,
then, sir, has a general constitutional right to be confronted with
the witnesses against him. Let gendemen show any exception
to it, if they can. And what have they done? Why, they have
shown here an obBokte,'an evaporated affidavit, for which there
94
is no necessity and no lav* The law positively declares, thai the
best evidence is always to be had; that when a witness is attain-
able, his affidavit is not to be admitted as testimony. We stand,
therefore, sir, upon die bill of rights. Gendemen may, indeed,
attempt to evade its provisions by saying, that they can hereafter
prove the material act; but I hope that this court will never
countenance such illegal proceedings.
The Chief Justice stated^ that the supreme court of the
United States had already decided, that an affidavit might be
admitted under certain circumstances; but they had also. deter-
mined, that general Wilkinson's affidavit did not contain any
proof of an overt act; that he was certainly extremely willing to
permit the attorney for the United States to pursue his own
course in the order of drawing out his evidence, under a full
Confidence that he would not waste the time of die court by pro-
ducing any extraneous matter; but where was the necessity of
producing general Wilkinson's affidavit first f If there was no
other evidence to prove the overt act, Wilkinson's affidavit goes
for nothing; for so the supreme court of the United States have
already decided; and by that decision he should have conceived
himself bound, even if he had dissented from it. Why then
produce this affidavit?
Mr. Hay obser\'ed, that there was a great difference between
the course prescribed by the court, and the one which he would
himself have pursued; and that he seriously believed, if he had
been left to himself, he would at least have satisfied the court
itself that his own course was the best. That as to general Wil*
kinson's affidavit, it might even now be confronted with witness
ses; as Messrs. BoUman and Swartwout were present, and would
say whether such and such conversations were ever held, as
are detailed in this affidavit. That he was now before an exa*
mining court, and not before the petit jury: why then the same
strictness of evidence now as would be required on the trial in
chief? That he really believed it was the intention of the oppo-
site counsel, by dint of long speeches, to attempt to drive him
into their course: but that they ought to know he never consulted
the counsel opposed to him; and that they would be the last per-
sons in the world, whose opinions' he would consult on the pre-
sent occasion. That he seriously believed, that the evidence which
he possessed, would, beyond the possibility of a doubt, convince
the mind of the court, not only of the existence of a traitorous
design, but of an overt act; and that all that he asked, was die
liberty of producing this evidence in the order which he thought
best. Is no part of this deposition, then, admissible? Not a word?
The Chief Justice observed, that he thought no part of it
admissible at this time; that general Wilkinson's affidavit either
,95
contained proof of the treasonable design, which was no proof
of the overt act, or it related to conversations, which, however
strongly they might bear upon those who held them, did not
bear upon colonel Burr.^
Mr. Hat asked, how the court was to be satisfied of the con-
tents of any paper, before it was read to them. An affidavit
might contain both die proof of the overt act, and a traitorous
design. Was such a paper as this to be read under the decision
of the court? or how was the court to know, whether a paper
might not contain some proof of the overt act satis&ctory to
tbem, unless they had an opportunity of inspecting that paper?
Mr. WicKHAM. — ^These gendemen talk of delay; and yet
they would produce to thb court whole masses of evidence that
are perfecdy irrelevant to the present question. They declare
that they will not pursue our advice; and that we are the last
persons whom they would take for counsellors. Sir, we do not
ask them; all that we want is, that they would pursue the strict
principles of law and legal evidence. One of the best rules of
evidence is the order of evidence. If a man is charged with a
crime, must not the deed itself exist before any testimony is
produced as to the intention with which it is done? I hope that
no testimony will be suffered to be introduced before the act
itself shall be produced; and I call upon this court to inforce
the strict order of evidence.
Mr. Burr observed, that in point of fact, it was very imma-
terial to him, whether this affidavit was read or not; that what
he particularly wanted, was, that the great principles of evidence
should be laid down, which would be equally applicable to tiiis,
and to all other affidavits. He consented that the court might
have this deposition read, if they thought proper.
Mr. Hat. — This deposition will prove that it was one of
Aaron Burr's objects to seize upon Mexico. Then, if we can
prove by some other evidence, that this object was connected
with an attack upon the United States, is not this deposition of
material importance in that point of view? If both must be
proved, does it make any difference which we begin with? If a
conspiracy has been planned of a misdemeanor and of treason
so strong^ly combined that they are made to go on together, anc^
die accomplishment of the one facilitates the accomplishment of
the other, is it not of material consequence to prove the misde-
* The chief justice observed, in a subsequent stage of tbis business, that an
i6ea had since struck his mind, which he thought it material to state; that he
had not recollected that these conversations were said to be held by persons
who were SMd to be authorised by colonel Burr; and of course that their
ooBversatioDs would bear upon bi\p.
96
ineanor? I have npjt myself seen Mr. Taylor, or Mr. Allbrigfat;
but I am credibly informed, that they will prove an armed as-
semblage of men on Blannerhasset's island.
The Chief Justice observed, that if there was no fact, or
no overt act of treason before the court, the court could have
nothing to say to the present motion; that if therefore, no fact
was proved, the court could not grant the motion for the
prosecution ; that he should be extremely sorry to waste the
time of the court, and to launch into a variety of irrelevant
subjects, when there was actually no testimony to prove the
overt act itself, and thus to give the court a competent jurisdic-
tion over the case*
Mr. Hay. — I am bound, sir, to obey the decision of the
court. However much I may lament that decision, I shall cer*
tainly acquiesce in their order. If I understand the court —
The Chief Justice said, that he was of opinion, that unless
there be a fact to be proved, no testimony ought to be produced.
The question before the court was not whether there had been
a treasonable intent, but an overt act. That fact itself must be
proved, before there can be any treason, or any commitment for
treason. General Wilkinson's affidavit was, accordingly, put
aside*
Mr. Hay then called Peter Taylor, who was Mr. Blanner-
hasset's gardener, and Jacob Allbright, a labourer, who had
worked on his island, who gave their testimony. [It is omit*
ted here, because it will be fully detailed in a subsequent and
more important part of the report.] After these witnesses had
been examined, the affidavit of Jacob Dunbaugh was offered,
which was "taken on the fifteenth of April, 1807, before B.
Cenas, a justice of the peace," to which was subjoined a certi-
ficate of governor William C. C. Claiborne, dated *^ at New-
Orleans, the sixteenth of April, 1807," stating **• that B. Cenas
was a justice of the peace for the county of New-Orleans."
To the reading of this affidavit several objections were ta-
ken by the counsel for colpnel Burr, but those most relied on
were the following: 1st, That an affidavit could, under no cir-
cumstances, be read, unless it were shown, that the witness
tould not be produced, and that the government had not had
sufficient time to procure the attendance of Jacob Dunbaugh.
2dly, That though the governor of New-Orleans had certifi-
ed that B. Cenas was a justice of the peace, yet he had nOt said,
that it was the same B. Cenas before whom that affidavit was
taken, ddly, That B. Cenas had not stated in the caption of
his certificate, or elsewhere, that the affidavit was taken ^^ at
New-Orlean§," so as to show, that he was acting within hi&
jurisdiction.
97
The argument on these points 'Vas continued to the adjourn*
mem of the court, who took time to consider the subject till the
next day.
Thursday, May 28th, 1807*
The court met according to adjournment.
Luther Martin, Esq. appeared as the counsel of colonel
Burr.
On the motion made yesterday, to exclude the evidence of
Jacob Dunbaugh, the Chief Justice delivered the opinion of
the court as follows:
On the part of the United States, a paper, purporting to be
an affidavit,has been offered in evidence, to the reading of which
two exceptions are takent
1st, That an affidavit ought not to be admitted, where the
personal attendance of the witness could have been obtained.
2dly, That this paper is not so mthenticated as to entitle
itself to be considered as an affidavit.
That a magistrate may commit upon affidavits has been de-
cided in the supreme court of the United States, though not
without hesitation. The presence of the witness, to be examin-
ed by the committing justice, confronted with the accused, is
certainly to be desired ; and ought to be obtained, unless consi-
derable inconvenience and difficulty exist in procuring his at-
tendance. An ex parte affidavit, shaped, perhaps, by the per*
son pressing the prosecution, will always be viewed with some
suspicion, and acted upon with some caution; but the court
thought, it would be going too far to reject it altogether. If it
was obvious, that the attendance of the witness was easily at-
tainable, but, that he was intentionally kept out of the way, the
question might be otherwise decided.
But the particular case before the court does not appear to
be of this description. The witness resides at a great distance;
and there is no evidence, that the materiality of his testimony
was known to the prosecutors or to the executive in time to
have directed his attendance. It is true, that general instruc-
iioBs, which would apply to any individual, might have been
sent, and the attendance of this, or any other material witness,
obtained under those instructions ; but it would be requiring too
much, to say, that the omission to do this ought to exclude an
affidavit. This exception, therefore, will not prevail.
The second is, that the paper is not so authenticated as to be
introduced as testimony on a question, which concerns the li-
berty of a citizen. This objection is founded on two omissions
in the certificate.
The first is, that the place at which the affidavit wa^ taken
does not appear-
Voi.. I. N
b
98
The second, that the ccrtilitate of the governor does not state
the person who administered the oath to be a magistrate ; but
goes no farther than to say, that a person of that name was a
magistrate. »
That, for aught appearing to the court, this oath may, or may
not, in point of fa(?t, have been legally administered must be
conceded. The place, where the oath was administered, not
having been stated, it may have been administered where the
magistrate had no jurisdiction, and yet the certificate be per-
fectly true. Of consequence, there is no evidence before the
court, that the magistrate had power to administer the oath»
and was acting in his judicial capacity.
The effect of testimony may often be doubtful, and courts
must exercise their best judgment in the case; but of the verity
of the paper there ought never to be a doubt. No paper writ-
ing ought to gain admittance into a court of justice as testimo-
ny, unless it possesses those solemnities which the law re«
quires. Its authentication must not rest upon probability, but
must be as complete as the nature of the case admits of: this
is believed to be a clear legal principle. In conformity with it
is, as the court conceives, the practice of England and of this
country, as is attested by the books of forms ; and no case
is recollected, in which a contrary principle has been recognis-
ed. This principle is, in some degree, illustrated by the doc-
trine with respect to all courts of limited jurisdiction. Their
proceedings are erroneous, if their jurisdiction be not conclu-
sively shown. They derive no validity from the strongest pro-
bability that they had jurisdiction in the case: none, certainly^
from the presumption, that being a court, an usurpation of juris-
diction will not be presumed. The reasoning applies in full
force, to the actings of a magistrate, whose jurisdiction is lo-
cal. Thus, in the case of a warrant, it is expressly declared,
that the place where it was made ought to appear.
The attempt to remedy this defect, by comparing the date
of the certificate given by the magistrate with that given by
the governor cannot succeed. The answer given at bar to this
argument, is conclusive: the certificate wants those circum*
stances, which would make it testimony; and without them ne
part of it can be regarded.
The second objection is equally fatal. The governor has
certified, that a man of the same name with the person who
has administered the oath is a magistrate ; but not, that the
person, who has administered it, is a magistrate.
It is too obvious to be controverted that there may be two, or
more persons of the same name, and, consequently, to produce
that certaint}', which the case readily admits of, the certificate
of the governor ought to have applied to the individual, who
99
administered d&e oath. The propriety of this certainty and
precision in a certificate, which is to authenticate any affidavit
to be introduced into a court of justice, is so generally admits
ted, that I do not recollect a single instance in which the prin-
ciple has been departed from* It has been said» that it ought
to appear that there are two persons of the same name, or the
court will not presume such to be die fact. The court presumes
nothing. It may or may not be the fact, and the court cannot
presume that it is not. The argument proceeds upon the idea,
that an instrument is to be disproved by him who objects to it,
and not that it is to be proved by him who offers it. Nothing
can be more repugnant to die establishtrd usage of courts*
How is it to be proved, that there are two persons of the name
of Cenas in the territory of Orleans ? If, with a knowledge of
several weeks, perhaps months^ that this prosecution was to be
carried on, the executive ought not to be required to produce
this witness,ought the prisoner to be required, with the notice
of a few hours, to prove that two persons of the same name re-
side in New-Orleans ?
It has been repeatedly urged, that a difference exists between
the strictness of law, which would be applicable to a trial in
chief, and that which is applicable to a motion to commit for
triaL Of the reality of this distinction, the present controversy
affords conclusive proof. At a trial in chief, the accused pos-
sesses the valuable privilege of being confronted with his accu-
ser. But there must be some limit to this relaxation, and it ap-
pears not to have extended so far as to the admission of a pa-
per not purporting to be an affidavit, and not shown to be one.
When it is asked, whether every man does not believe that
this affidavit was really taken before a magistrate? it is at once
answered, that this cannot affect the case. Should a man of
probity declare a certain fact within his own knowledge, he
would be credited by all who knew him ; but his declaration
could not be received as testimony by the judge who firmly
believed him. So a man might be believed to be guilty of a
crime, but a jury could not convict him, unless the testimony
proved him to be guilty of it. This judicial disbelief of a pro-
bable circumstance does not establish a wide interval between
common law and common sense. It is believed in this respect
to show their intimate union.
The argument goes to this, that the paper shall be received
and acted upon as an affidavit, not because the oath appears to
have been administered according to law, but because it is pro-
bable that it was so administered.
This point seems to have been decided by the constitution :
** The right of the people" says that instrument, **• to be se-
cure in their persons, houses, papers, and effects, against un-
C^£\A Clk-M^
100
reasonable searches tod seizures^ shall not be violated ; and no
warrants shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the places to
be searched, and the persons or things be seized." The cause
of seizure is not to be supported by a probable oath^ or an oath
that was probably taken, but by oath absolutely taken. This
oath must be a legal oath; and if it must be a legal oath, it
must legally appear to the court to be so. This provision is
not made for a final trial: it is made for the very case now
under consideration. In the cool and temperate moments of
reflection, undisturbed by that whirlwind of passion with
which in those party conflicts which most generally produce
acts or accusations of treason the human judgment is some*
times overthrown, the people of America have believed the
power even of commitment to be capable of too much oppres*
sion in its execution, to be placed, without restriction, even in
the hands of the national legislature. Shall a judge disregard
those harriers which the nation has deemed it proper to erect?
The interest which the people have in this prosecution, has
been stated; but it is firmly believed, that the best and true in-
terest of the people is to be found in a rig^d adhertnce to those
rules, which preserve the fairness of criminal prosecutions in
every stage.
If this was a case to be decided by principle alone, the court
would certainly not receive this paper; but if the point is set-
tied by decision, it must be conformed to.
It has been said to be settled in the supreme court of the
United States by admitting the affidavit of Wilkinson, to
which an exception was taken, because it did not appear that
'the magistrate had taken the oaths prescribed by law. It was
said, that as by law he could not act, until he had taken the
oaths, and he was found acting, it must be presumed that this
prerequisite was complied with; that is, that his acting as a
magistrate under his commission was evidence that he was
authorised so to act* It will not be denied that there is much
strength in the argument; but the cases do not appear to be
precisely parallel.
7'he certificate that he is a magistrate, and that full faith is
due to his acts, implies, that he has qualified, if his qualification
is necessary to his being a complete magistrate, whose acts are
entitled to full faith and credit.
It is not usual for a particular certificate, that a magistrate
has qualified, to accompany his official acts.
There is no record of his qualification, and no particular tcs-
timohial of it could be obtained.
These observations do not apply to the objections which
101
tsisU But it is said that the certificate is the same with that in
Wilkinson's affidavit.
If this objection had been taken and overruled, it would
have ended the question; but it was not taken, so far as is now
recollected, and does not appear to have been noticed by the
court. It is not recollected by the judge who sat on that oc-
casion to have been noticed. A defect, if it be one, which
was not observed, cannot be cured by being passed over in
silence.
The case in Washington was a civil case, and turned upon
the point, that no form of the commission was prescribed, and
consequently, that it was not necessary to appear on the face of
it that it was directed to magistrates.
That it was the duty of the clerk to direct it to magistrates,
and he should not be presumed to have neglected his duty, in
a case in which his performance of it need not appear on the
face of the instrument.
That the person, intending to take this exception, ought to
have taken it sooner, and not surprise the opposite party when
it was too late to correct it.
But the great difference is, that the privy examination was a
mere ministerial act: the administering an oath is a judicial
act. The court is of opinion that the paper, purporting to be an
affidavit made by Dunbaugh, cannot be read, because it does
not appear to be an oath.
Mr. Hat observed, that as the examination of colonel Burr
for treason had already taken up much time without any pro-
gress in the business, and, from the disposition manifested by
his counsel, it might last not only ten days, but even ten years
longer, he considered it his duty, from information which he
had received that morning, to suggest to the court the pro-
priety of binding colonel Burr in a further recognisance from
day to day, till the examination could be ended. He stated, on
the authority of a letter just come to hand from the secretary
at war, that general Wilkinson, with several other witnesses,
might be expected here between the 28th and 30th of this
'month. This circumstance, said he, renders it essential that he
should be considered in custody, until he gives security that
his person shall be forthcoming to answer the charge of treason
against the United States. The gentlemen, who appear as
counsel for colonel Burr, maybe, and no doubt are, sincere in
the opinion they have expressed, that he will not shrink from
the charges exhibited against him, and will not, in any con-
juncture of circumstances which may occur, fly from a trial;
but those gentlemen must pardon me for saying, that I enter-
tain a very different opinion. I must believe, that his regard
102
for the safety of his own life, would, if he perceived it in dan-
ger, prevail over his regard for the interest of his securities. I
give notice therefore, diat I consider him as being already in
custody to answer the motion I have made for his commit-
ment, and that he cannot be permitted to go at large without
giving security for his appearance from day to day. His situ*
ation now is the same as that when he was first apprehended
and brought before a single judge for the purpose of ezamina«
tion. Your honour at that time considered him as in custody,
and bound him over from day to day; and I only contend} that
the same course should be pursued at this time.
Mr. WiCKHAM.— ^The gentleman thinks he has obtained the
effect of his motion, merely by having made it. I cannot per^^
ceive the propriety of a motion to compel colonel Burr to give
bail in any sum, before the probable cause to believe him guilty
of treason has been shown. When he was brought before your
honour for examination, you conceived the sum of 5000 dol*
lars sufficient securi^r for his daily appearance. But a recog-
nisance has already been given in double that sum, binding
him not to depart without the leave of this c^urt. Yet now, al»
though no probable proof of treason has been exhibited, Mr*
Hay requires the court to demand of colonel Burr addidoniA
security ! I trust that such a motion will not prevail.
Mr. M ARTiN.-.*It has been already decided, by the supreme
court of the United States, that not a single expression in Wil«
kinson's affidavit amounts to any proof of the charge of treason*
The motion of the gentleman amounts to this: *^ We have
no evidence of treason, and are not ready to go to trial for
the purpose of previag it; we therefore move the court to in-
crease the bail." , .,
Mr. Randolph.— The first motion of the counsel for the
United States was to commit colonel Burr on the ground of
probable cause only. This goes a step farther, and wishes the
same thing to be done on the ground of a probable cause of a
probable cause; but we trust that we shall not be deprived of
our liberty, or held to bail on a mere uncertain expectation of
evidence.
Mr. Mac Rae. — The gentlemen seem to consider the re-
cognisance already taken as sufficient for all circumstances,
and that colonel Burr will comply with it at any rate ; but we
have not the same expectation that he will appear, in case he
discovers that sufficient evidence for his conviction has been
obtained. When they speak of the sum in which he was bound
on a former occasion, diey do not recollect the circumstances
103
whidi induced dte judge to take bail in so smsfl a sun; it vrzk
expressly mentioned by your honour, that his having been brought
to a place at a distance from the circle of his friends, and the na*
tore of the offence, (a misdemeanor only) induced you to hold
him to bail in that sum ; and the charge of treason was altogether
excluded from view in taking the recognisance.
Mr. Wirt.— Mr. Wickham, in saying that my friend Mr.
Hay thought he had obtained the object of his motion merely
by having made it, clearly misconceived the object of the motion
now before the court. The motion we made yesterday was to
commit colonel Burr on a charge of treason : our motion to
day is to hold him in custody to abide the opinion which the
court may pronounce upon the question of commitment. The
gendemen say, that we have secured the object we have in view-
fay the recognisance already taken. The court expressly excluded
die charge of treason from that recognisance, which applies only
to the misdemeanor. Let us suppose that the motion to com-*
mit colonel Burr was made out of court before a single magis*
trate : if the examination of witnessess in support of the motion
occupied more than one day, would the magistrate let him go at
large, while it was depending? Would he not rather, either have
Inm retained in custody, or take security for his appearance, and
renew it every evening until the motion should be determined i
This is all that we ask of the court to do. The recognisance
which has been given applies to the misdemeanor only. If there-
fcre it should be forfeited by his going away, we should have
had no security for his answering the charge of treason; a much
more enormous offence, and attended widi a very different pu-
nishment. We contend therefore that additional security ought
tabc taken.
Mr. Bcmls. — I shall endeavour to place this subject in some
measure in a new light It has been said, that the former exa-
mination of colonel Burr did not preclude this motion ; if so,
every new edition of the volume of evidence would justify a re-
newal of the motion to denjand additional bail. Thus motions
mig^t be heaped upon motions, and bail upon bail, until the per-
petual imprisonment of the accused might be the consequence.
It was a practice, in former times, to drown a person accused
of being a witch, in order to try her. I think that practice is re-
newed on the present occasion, in another shape; a motion is
made to commit colonel Burr tor treason, before the evidence
can be gone through by which alone it can be ascertained that
he ought to be committed. The court are requested to prede-
termine the effect of the evidence, and commit, before they
have decided whether they ought to commit: besides, no warrant
has been issued against colonel Burr on the present occasion;
104
Jhe has not been arrested for treason, and therefore cannot be
considered as in custody for that offence.
Mr. Hay then made some farther observations on the impor*
tance of the charge of treason (which is of the highest nature,
involving the reputation and life of the prisoner,) and the great
necessity therefore of the most ample security to compel his ap-
peafance to answer it. He stated that this examination might last
many days; that after the court had made up an opimon that
colonel Burr ought to be committed, he might march off and
leave the court to pronounce it; so that an order to commit
might be made by the court, and no person found on whom it
could be executed. Such an event, he said, would excite the
laughter and scorn of all the people of the United States. He
mentioned that an immense expense had been incurred by the go-
vernment in collecting witnesses, and preparing for this trial; that
therefore he did not wish the whole of that expense to be thrown
away. General Wilkinson is expected to arrive between the 28th
and 30th of this month : if he arrives, both the bills of indictment
will be immediately sent to the grand jury. This is the first in*
stance in which the ministers of the law have been requested to
say to the accused, ^^ You may do as you please, and go at large
until we pronounce sentence." The gentlemen contend for new
principles in favour of colonel Burr; but, I trust that greater
privileges will not be granted to him than to the humblest delu-
ded victim of his ambition. The circumstance that he has al-
ready entered into a recognisance to answer for a misdemeanor,
is no argument to exempt him from entering into another on a
charge of treason. Shall the accused clear himself of a respon-
sibility for one crime by his having committed or being charged
with another ? This would indeed be to violate that maxim of
law, that no man shall be benefited by his own wrong. Mr.
Botts has contended that there is a difference between the case on
the examination and that now before the court; that in the first
instance a warrant had been issued, but none in the present; but
a warrant is certainly unnecessary, now that the prisoner is before
the court. The object of a warrant is to bring him before you.
When this has been done, it is functus officio; here is colonel Burr,
before the court. It is therefore immaterial how he came before
it; but he ought to be considered in custody, until discharged
by the due course of law.
The Chief Justice delivered the opinion of the court, the
substance of which was as follows: It is certainly necessary that
a person accused should be retained in custody, or required to
give security for his appearance while his examination is depend-
ing. The amount of the security to be required, must depend,
however, upon the weight of the testimony against him. On a
former occasion, colonel Burr was held to bail for his daily ap-
105
pearance in the sum 6( five thousand dollars only, because there
was no evidence before the judge to prove the probability of his
having been guilty of treason. When the examination was com-
pleted, the sum of ten thousand dollars was considered suffi-
cient to bind him to answer the charge of a misdemeanor only,
because the constitution requires that excessive bail should not
be taken; but that recognisance had no application to the charge
of treason. Yet, whether additional security ought to be requi-
red in the present stage of this business, before any evidence has
appeared to make the charge of treason probable, is a question
of some difficulty. It would seem, that evidence sufficient to
furnish probable cause must first be examined, before the accu-
sed can be deprived of hiis liberty, or any security can be requi-
red of him. Yet, before this could be done, he might escape and
defeat the very end of the examination. In common cases, where
a person charged with a crime is arrested and brought before a
magistrate, the arrest itself is preceded by an affidavit, ^ich
furnishes grounds of probable cause. The prisoner therefore is
continued in custody, or bailed until the examination is finished:
but here there has been no arrest for treason, and colonel Burr.
is not in custody for that offence. The evidence then must be
heard to determine whether he ought to be taken into custody;
but as the present public and solemn exaniination is very differ-
ent from that before a single magistrate; as very improper effects
on the public mind may be produced by it; I wish, that the
court could be relieved from the emban'assing situation in
which it is placed, and exempted from the necessity of giving
any opinion upon the case, previously to its being acted upon by
the grand jury. It is the wish of the court, that the personal ap-
pearance of colonel Burr could be secured without the necessity
of proceeding in this inquiry.
Colonel Burr rose, and observed, that he denied the right of
the court to hold him to bail in this stage of the proceedings;
that the oonstitution of the United States was against it; decla-
ring that no person shall be arrested without probable cause made
out by oath or affirmation. But if the court were embarrassed,
be would relieve them by consenting to give bail; provided it
should be understood, that no opinion on the question even of
ppobaUe cause was pronounced by the court, by the circum-
tance of his giving bail.
TheCniEF Justice said,that such was the meaning of the court.
Mr. Martin said, for his part, he should prefer that all the
evidence should be fully gone into» Instead of fearing that pub-
lic prejudice woi^d thereby be excited against colonel Burr, he
bdiev^ it would remove all the prejudices of that sort which
aow prevailed.
Vol. I. O
106
Hie Chief Justice. — As a bill will probably be sent up to the
grand jur}', the court wishes to declare no opinion either way.
Some conversation then occurred relative to the quantum of
bail ; and colonel Burr mentioned, that he would propose that
the sum should be ten thousand dollars, if he should be able to
find security to that amount, of which he expressed himself to
be doubtful. Mr. Hay contended, that fifty thousand dollars
would not be too much. But the court finally accepted of the
offer made by colonel Burr ; who after a short interval, entered
into a recognisance with four securities, to wit, Messrs. Wm*
Langburn, Thomas Ta}lor, John G. Gamble, and Luther Mar-
tin ; himself in the sum of ten thousand dollars, and each secu-
rity in the sum of two thousand five hundred dollars, condition-
eel, that he would not depart without leave of the court.
Mr. 'Martin, when offered as security for colonel Burr,said,
that^e had lands in the district of Virginia, the value of which
was more than double the sum ; and that he was happy to have
this opportunity to give a public proof of his confidence in the
honour of colonel Burr, and of his conviction that he was inno-
cent.
All funher proceedings in the case were thereupon postpone
ed, until the next day.
Friday, May 29th, 1807.
The court met, but as the witnesses had not arrived, it was
adjourned till Monday next, at 10 o'clock.
Monday, June 1st, I80r.
The court met according to adjournment. Present, the Chief
Justice and judge Griffin.
The grand jury having been called over, Mr. Hay ob-
served, that he felt great embarrassment and difficulty as to
the course which ought to be pursued; he had confidently'
expected the arrival of general Wilkinson, and was disap-
pointed. He was, therefore, unwilling to subject the grand
jury to the inconvenience of farther attendance: but bethought
It proper to inform the court, that he had this morning received
a number of affidavits of witnesses, residing in the neighbour*
hood of ChiUicothe, and of Blannerhasset's island, which bore
ditectly upon the charge of treason against colonel Burr.
Those affidavits, however, had been taken in such a manner^
that, according to the opinion lately given by the court, con-
cerning the affidavit of Jacob Dunbaugh, they were not admis*
sible as evidence, and would not be permitted to be read. He
expected to hear from general Wilkinson, (if he should not ap-
pear in person) by the Lynchburgh mail, which he understood
107
would arrive on Wednesday morning. He, therefore, hoped,
that the grand jury would not be unwilling to make a farther
sacrifice of a portion of their time for the public good, and
would consent to wait with patience.
The grand jury were adjourned until Tuesday, ten o'clock.
Tuesday, June 2d, 1807.
General Wilkinson not having arrived, no business was done
to-day, but the court adjourned till to-morrow morning, ten
•'dock.
Wednesday, June 3d, 180r.
The court met according to adjournment.
The same judges present as yesterday.
The names of the grand jury being called over, they retired
to their chamber. A few minutes after, the attorney for
the United States entered, and observed, that he had a propo-
sition to submit to the court, which he wished the grand jury to
hear. He requested, therefore, that they might be called in.
Counsel for Mr. Burr. We have no objection.
The chief justice directed the marshal to call the jury into
court.
Some minutes intervened before they appeared. In the mean
time, Mr. Hay informed the court, that he only wished to know
fix>m the grand jury, at what time it would be most convenient
for them to attend the court, if they were adjourned to some
distant day, should such an adjournment equally suit the ar-
rangements of the opposite counsel; that he had just made a
calculation with his friend the marshal, which satisfied him that
general Wilkinson had not, perhaps, sufficient time to reach
diis city. The distance from New-Orleans, on the map, was
about 1370 miles; if he came by land, he must travel on horse-
hack ; but judging him by himself, he could not probably ride
more than thirty miles per day: by these data he would require
about forty-five days (besides a fragment of a few miles) to
travel from New-Orleans to this citv. This calculation would
bring him to the 14th or 15th of this month. He was, there-
fore, willing, if it suited the wishes of the opposite counsel, to
have the grand jury adjourned for about ten days ; that gene-
ral Wilkinson's situation called upon the court to make this ar-
rangement; he need not expatiate upon the importance of his
oficial duties, nor the perilous condition of that part of the
country, where the head of the army ought always to be present ;
that general Wilkinson should be detained here as short a time as
possible; and, that it would be particularly inconvenient for him
10 stay here imtil the meeting of an intermediate court for the
108
preseiit trial; diat it was, therefore, the interest of the United
States to have the trial concluded during the present term i and,
that he had no doubt the veiy same considerations would lead
every member of the grand jury, cheerfully to submit to any
private inconvenience which they might sustain, but punctually
to return at the time appointed by the court*
The Chief Justice observed, that there could be no diffi-
culty on the part of the court.
Mr. Hat. — General Wilkinson's situation, as commander in
chief of the forces of the United States, is a very delicate one.
His official duties may require him to return immediately after
his arrival at this place. Our a&irs in that part of the union
are also in a very imsetded state. If he should be compelled
to return after the adjournment of the court, it may not be in
his power to be here either at a special court, or at the next
term. He hoped that the proposition to adjourn the grand jury
to a distant day would meet with the approbation of colonel
Burr and his counsel.
Mr. WiCKHAM owned, that this communication somewhat
surprised him, as Mr. Hay had, but a few days before, an-
nounced to the court, from a letter of the secretary of war, that
general Wilkinson would be here between the 28th' or dOth of
of May.
Mr. Hay observed, that the letter from general Dearborn
admitted of an easy explanation: that according to Mr. Min-
nikin's affidavit, the express could not have reached New-Or-
leans before the 3d or 4th of May, and that this exceeded the
time which general Dearborn had allowed. His opinion was
founded on the circumstance of the messenger leaving Wash-
ington on a certain day, and of course his reaching New-Or?
leans on a certain day. That Mr. Minnikin's affidavit had shown
the calculation to be not altogether correct; that Mr. Minnikia
had, therefore, given him some information, which gene-
ral Dearborn could not have possessed. Mr, Hay was sorry-
he could not inform the court hoiy general Wilkinson tra-
velled, and of course how to make any calculation about the
time of his arrival.
The Chief Justice said, that before the grand jury came in,
he could not but express his regret at the great inconvenience
which they were likely to sustain ; but he believed, that less of
it would arise from the course pointed out by the United States*
attorney than from any other. The court would continue to
sit as usual ; its ordinary business would go on; and no further
steps would be taken in the prosecution, until the return of the
109
grand jury* The couit would observe^ that it seemed desirable,
in every point of view, that this business should be closed du«
ring the present term ; that a number of witnesses were now pre-
sent, all of whom would not probably attend at any other term,
and that it would be more convenient for the court itself to
wait a fortnight longer after its usual period of adjournment,
than to hold an intermediate court for this purpose.
Mr. WiCKHAM had no doubt himself, that if general WiU
kinson had intended to have come at all, he would have been
here before this time; certainly the government had not failed in
its duty in taking every necessary measure to have him here. If
the grand jury was adjourned to some distant day, the great dif-
ficulQr would be to collect them all again at the end of the time
appointed; and that if general Wilkinson was to coiae at all, he
may be expected here every day; and that of course, it was bet-
ter to adjourn the grand jury only from day tg day.
Mr. Hat stated, that a large allowance ought to be made for
the distance and uncertainty of the journey; and that he should
remind the court of a corresponding fact. Mr. Perkins, who es-
corted colonel Burr, left Fort Stoddert about the 23d or 24th
of March; but he himself did not reach this city before the thirty-
third or thir^-sixth day. Now, Mr. Perkins certainly travelled
with greater advantages than general Wilkinson would; as he
pressed or purchased horses to expedite his journey. Admit,
then, Mr. Perkins used due diligence, (and ne has been even
charged with too much) how can general Wilkinson be cer-
twnly expected? Gentlemen ought not to be so confident in their
hopes. General Wilkinson will be here, as sure as he is a living
man. Nothing but death will prevent him.
The Chief Justice observed, that a large calculation ought
certainly to be made ; as the distance was very considerable, and
it was very uncertain when general Wilkinson set out, or how he
travelled.
At this moment, the grand jury returned into court.
Mr. Hat addressed them in the following terms:
Gentlemen of the Grand Jury, — I have already stated to the
court and the opposite counsel, that this business should be con-
duded, if possible, during your present session. I have moved
the court, that you be c^ed again at the end of ten days, or a
fortnight. My calculation is, that general Wilkinson cannot be
here before the 14th or 15th of this month. I am sorry to detain
you here a single moment; but I flatter myself, that you will still/
continue to display the same praise-worthy patience which has
hidierto marked your conduct I am, therefore, anxious to con-
anh your ovm convenience as much as possible; and I wish to
110
know, at what time it will be mostconvetiient for you to return
to this place, if you are acljoumed to a distant day*
Mn John Randolph, (the foreman). Any time, may it please
the court, shall be most convenient to ourselves, that is most
convenient to the court and the parties. We should, however,
prefer a distant day.
Mr. Burr observed, that there were manifest inconveniences
in the measure proposed. He had, for instance, a number of wit-
nesses here, from a distance; would it not be inconvenient for
them to be kept here? Certainly, however, they may b*; detain-
ed; but why an adjournment to a distant day? Mr. Wilkinson
may be expected here every day. The attorney's estimate of the
time is not perhaps correct. Perkins came about the same dis-
tance as Mr. Wilkinson is to come; but he performed his jour-
ney in thirty-one days. What we want, however, is some data
from the government on this subject; such, for instance, as the
time when the express left Washington. As to Minnikin^s affi-
davit, what great reliance can be placed in it? Did he certainly
identify the express? But suppose that the express reached New-
Orleans about the time mentioned; Mr. Wilkinson may come by
water, and is to be expected here every day. Mn Burr hoped
that this measure would not be adopted; particularly as it was
uncertain, whether eight or ten days hence all of the grand jury
would meet here again. Mr. Wilkinson may be near to this
place at this moment; and he may arrive almost immediately
after the jury is adjourned. Adjourn them from day to day.
According to Mr. Dearborn's letter, Mr. Wilkinson ought to
have been here between the 28th and 30th of May; allowing^
however, six days more than he said, Mn Wilkinson may be
expected here to-morrow.
Mr. Hat observed, that it was of no sort of importance t6
him, personally, or officially, to what time the grand jury was
adjourned; all that he wished was, that the public business
should go on, and this prosecution closed during the present
court. Whether general Wilkinson would be here to-morrow, or
a fortnight hence, he knew not; he merely made the present pro-
position for the accommodation of the grand jury. If gendement,
on the other side, choose to object to it, and the court would
adjourn the jury from day to day, he was satisfied. He had, in
the early part of April, received a letter from Mr. Rodney,
stating, that every exertion would be made to have him here: it
was not probable that the messenger could have arrived in New-
Orleans, before the 3d or 4th of May. If general Wilkinson
travelled by land, he would not come so expeditiously as Mr.
Perkins, because Mr. Perkins had exhausted the frontier parta
of Georgia of its horses. Such, at least, was Mr. Minnikin'a
representation.
Ill
Mr. Martin submitted to the court, whether it wad not
better to adjourn the jury from day to day. Any calculation on
such a subject was uncertain; it was. uncertain whether general
Wilkinson would travel by land or by water: but if he came by
land, he might certainly travel further than the gentleman had
allowed — ^thirty miles a day; nor would he be obliged, to use the
same horse, as that gentleman had also supposed. As general
Wilkinson was a military gentleman, he would not be confined
to thirty miles a day; nor might he deny himself the conve-
nience of firequent relays of horses. And suppose that he should
arrive here to-morrow, all the other important witnesses are
present, and the business might be concluded before the time
should come to which the grand jury may be adjourned. He
hoped, therefore, that the court would not adjourn them to a
distant day. As to himself, he said, he did not wish his own
utuation to enter into the consideration of the grand jury, or the
court; that certainly he ought to be on the Eastern Shore, on
, to attend the court; but that notwithstanding this
circumstance, he was determined to stay here, so long as he could
expect to do any service to the gentleman whom he had come
fo defend*
Mr. WiCKHAMstated,that if general Wilkinson did not even
arrive here in two or three days, intelligence at least might be
obtained within that time, of the period of his arrival. Every
postirom the north or south might bring the information; every
person that came by land or water might do so: under such
circumstances, ought they to be adjourned for ten days, or a
formight?
Mr* Randolph, (the foreman).— -It is, sir, almost indifferent to
the jory, what steps may be taken; they have made no motion
for their prorogation or their discharge. Their great anxiety is,
to fulfil their duty.
The Chief Justice said, that he was fully impressed with
the patience which the grapd jury had manifested; perhaps Mon*
day next would be as convenient for them as any other day, to
reassemble.
Mr. Hay hoped, that the grand jury would be punctual in
their attendance, as he sincerely wished to have the business
closed during this term; and a number of witnesses were pre-
sent, who cannot all be expected here again.
Mr. WiCKHAM expressed his opposition to their adjouro-
mcnt; for although the jury had hitherto exhibited so much pa-
dence, yet if they retired home, some one might find his domestic
a&irs in such a situation as to think himself excused froo)^
fiirther attendance.
112
Chief Justice. Let it then be ondentood, tbit not before
4 Monday next, three o'clock, will the jury be called again. .
^ A desultory conversation here ensued between the jury and
the chief justice, some of the former wishing as distant a time as
possible. Tuesday was then named; when Mr. Wickham ob«
served, that if the grand jury preferred Tuesday, he should have
no objection; although he himself should prefer an earlier day.
Chief Justice.— -Gendemen of the grand jury, you will at<-
0 tend here on Tuesday next, at two o'clock.
>
Tuesbay, June 9th, 180/.
i The court met according to adjournment. Present, the Chief
Justice of the United States, and Cyrus Griffin, the district
judge.
^ It will be recollected, that on Wednesday last, (the 3d inst.)
I the grand jury were adjourned till this day, at two o'clock. At the
hour of diree, all the members appeared; their names having
' been called,
* Mr. Hay observed, that it was proper for him to inform the
' court, that he had received no further information respecting
general Wilkinson, except what was contained in a Norfolk paper,
(the Public Ledger) received by the mail of this morning; a para-
^ graph of which stated, that a vessel had arrived there in twen-
ty-seven days from New-Orleans, and that, at the departure of the
vessel from the latter place, which must have been about the 1 1th
of last month, general Wilkinson was still in New-Orleans; and
nothing was said as to his intention of leaving it. There were
gendemen on the grand jury just from Norfolk, who would be
able to state whether the information might be relied on or not.
He said that he had confidently expected general Wilkinson here
before this time; but that he might have been led into the mis-
take by the information of Mr. Minnikin, as to the progress
which the express had made, when he saw the messenger on his
way to New-Orleans. It was possible that in the latter part of
his journey, he might not have been able to move with as much
rapidity as upon his first setting out; but from a knowledge of
the fact that general Wilkinson was at New-Orleans at that time^
his hopes were much stronger that he would certainly be here.
The express would go direcdy to him, and he would have no-
thing to do but to prepare for his journey to this place: he
wished the subject might be postponed for a few days. For the
sake of economy, for the sake of that justice which is due to
the public and to the accused, he hoped that no objection would
be made to this course. Almost all the witnesses wiere here;
«^at he was sorry to be forced to make so many apologies to the
grand jury, who had already manifested so much patience; but
113
h« begged them to recollect the extreme importance of the pre-
sent trial, and diat it would, perhaps, be the last time that they
were to be placed in this situation*
The Chief Justice presumed, that the mail from Norfolk
would not' arrive here until the day after to-morrow.
Mr. Hay said that it had arrived the day before.
Mr. Martin. — I have an extract from another Norfolk pa-
per, one day later than the one quoted by the attorney, which
conveys in substance, the same information. The ship news, in
the same paper state, that the Hannah had left New-Orleans
twenty-seven days before.
Mr. Hat. — ^These may be different vessels.
Mr. Martin. — ^The same vessel, sir.
Mr. Hat. — These vessels may convey some intelligence to
Washington respecting general Wilkinson, which may conse-
quendy reach ourselves.
Mr. Burr. — I hope, sir, it will not be understood, from the ob-
servations of my friend, Mr. Martin, that I mean to take any part
in this business. I shall certainly not interfere with the grand
jury in this stage of the affair. The proposition of the gendeman
has my cordial concurrence.
The Chief Justice observed, that if the jury were adjourned
dD Thursday, some passenger might, .perhaps, arrive in tne next
Norfcdk mail, with some intelligence about general Wilkinson.
Mr. Hay presumed, that the jiiry would not probably be want-
ing before Saturday.
Mr. Burr hoped the jury would be adjourned for as short a
time as possible ; at all events, not longer than Thursday.
Chief Justice. — This is Tuesday; the attorney for the Uni-
ted States cannot probably expect general Wilkinson before
Thursday, if he comes by waten
Mr. Hay knew not how he was to come; if by water, he cer-
tainly could not be expected before that time ; and if by land, he
would certainly require one day to recover from the fatigue of
travelling.
The Chief Justice then observed to the grand jury, that
they were adjourned till Thursday, ten o'crock.
Mr. Burr then addressed the court. There was a proposition
which he wished to submit to them. In die president s commu-
nication to congress, he speaks of a letter and other papers which
be had received from Mr. Wilkinson, under date of 21st of Oc*
tober. Circumstances had now rendered it ips^terial, that the
Vol. I. P
I
114
whole of this letter should be produced in court; and further,' it
has already appeared to the court, in the course of different exa-
minations, that the government have attempted to iufer certain
intentions on my part, from certain transactions. It becomes ne-
cessary, therefore, that these transactions should be accurately
stated. It was, therefore, material to show, in what circumstances
I was placed in the Mississippi Territory; and of course, to ob-
tain certain orders of the army and the navy which were issued
respecting me. I have seen the order of the navy in print; and
one of the officers of the navy had assured me, that this transcript
was correct. The instructions in this order were, to destroy my
person and my property in descending the Mississippi. Now I
wish, if possible, to authenticate this statement; and it was for
this purpose, when I passed through Washington lately, that I
addressed myself to Mr. Robert Smith. That gentleman seemed
to admit the propriety of my application, but objected to my
course. He informed me, thatif I would apply to him througtv
one of my counsel, there could be no difficulty in granting the
object of my application. I have since applied in this manner to
Mr. Smith, but without success. Hence I feel it necessary to re-
sort to the audiority of this court, to call upon them to issue a
subpoena to the president of the United States, with a clause, re-
quiring him to produce certain papers; or in other words, to
issue the subpoena duces tecum* The attorney for the United
States will, however, save the time of this court, if he will con-
sent to produce the letter of the 21st October, with the accom-
panying papers, and abo authentic orders of the navy and war
departments.
Mr. Randolph observed, that he knew not whether, it was ne-
cessary for him to support colonelBurr's motion: that he had been
informed by him of his application, through a friend, to Mr.
Smith, and of Mr. Smith's refusing to grant the application, im-
kss it were made through one of his counsel : that he had him-
self, therefore, addressed a letter to Mr. Smith informing Vutk
of colonel Burr's statement. In answer to this he had received a
letter, which seemed like a personal communication to himself;
but as he had not requested him to withhold it from colonel
Burr, and as it contained information material to him, he had
shown it to colonel Burr.
Mr. Randolph regretted that he had not the letter then about
him; but the substanc^ of it was, that the order which had been,
alluded to was only for the officer to whom it had been address-
ed, and was. to be seen only by him. He added, that he had
written in reply to Mr. Smith, that he never would have applied
to him for it, but for the two reasons, that it had already appear-
ed in a Natchez Gazette, and that Mr. Van Ness, the friend of
colonel Burr, had informed him of Mr. Smith's unconditional
promise to furnish the order, if he was properly applied to for it.
115
Mr. Burr observed, that to avoid all possible misconception,
he thought it proper to state, diat Mr» Van Ness had assured
him of Mr. Smith's positive and unqualified promise to furnish
the answer, if applied for through counsel.
Mr. Hat declared that he knew not for what this information
could be wanted; to what purpose such evidence could relate,
and whether it was to be used on a motion for commitment, or
on the trial in chief.
Mr. Burr, Mr. Wickham, and Mr. Martin observed, that
perhaps on both: according as circumstances might require.
Mr. Hay. — I suppose this court will not proceed but upon
facts. Now, a letter of the 21st of October is spoken of ; but has
this letter been yet identified? He hoped that the court would
not issue the subpoena duces tecumi until they were satisfied that
they had the authority to issue it, and that the information re-
quired was material in the present case.
Mr. Wickham observed, that the present was simply intend-
ed as a notice of a motion to be brought before the court; which
motion might be discussed either to day or to-morrow.
Mr. Hay declared, that all delay was unnecessary; but he
pledged himself, if possible, to obtain the papers which were
wanted; and not only those, but every paper which might be ne-
cessary to the elucidation of the case.
Chief Justice observed, that all delay wasv obviously impro-
per; that if the papers were wanted, they ought to be obtained as
soon as possible, and not, perhaps, delay the ulterior stages of
the prosecution.
Mr. Hay stated, that he had already received a communica-
tion from Mr. Wickham on this subject, and intended to have
informed him that he would write for all the papers which were
wanted, (and he had no doubt he should obtain them) if the
court judged them material. The fact was^ that he had already in
his possession Mr. Randolph's correspondence with Mr. Smith,
VBtd the order from the navy department; but in his own opinion,
they no more related to the present prosecution than the first pa^
ragraph of the first page of the acts of congress.
Chief Justice inquired whether the^atchez Gazette was
not in court.
Mr. Burr. — No, sir, but I have already seen the same order
in other papers; and have no doubt that almost every person has.
At Natchez it was a subject of surprise, that such an order had
ever finmd its way into a public print.
J 16
Mr. Hat repeated, that if the gentleman would furnish him
with a list of such papers as they wanted, he would attempt to
obtain them, if the court thought them material. Of what use
were they ? Were they too to be laid before the grand jury, to
distract their attention, and to present, under another point of
view, another subject for their consideration ? He had supposed,
that the mass of matter to be laid before them was large enough
afready.
CuiEF Justice observed, that it was impossible to determine
their use, without hearing them. He would much rather that the
counsel on both sides should make an arrangement with each
other suitable to them both ; and that the court itself was not
now disposed to make any arrangement; but if the parties could
not come to any agreement, he should then wish to hear some
argument on the subject to satisfy him, whether the court had
the right to issue a subpcena duces tecum*
Mr. Burr observed, that he had been told it was the constant
practice in this state to issue such subpoenas upon the application
of a party.
Chief Justice had no doubt it was the custom to do it, where
there was no great inconvenience to the party summoned; that it
seldom occurred; but that he was inclined to think, where great
inconveniences would result to the party summoned, that the ma-
teriality of his testimony should be fully shown. If papers are to
be obtained from a clerk's office, such a subpcsna may be issued^
and though not upon affidavit, yet where there has been good
cause shown*
Mr. Martin said, that there would be no inconvenience, as
t]jie president might just transmit the papers wanted by ms^il.
Mr. Hat observed, that Mr. Martin's remark superseded any
further proceeding. Why apply to the court to issue a subpcena
to the president, unless perhaps it was the necessary form for
obtaining the papers.
Chief Justice. — The reason is, that in case of a refusal to
send the papers, the officer himself may be present to show cause.
This subpoena is issued only where fears of this sort are enter-
tained.
Mr. Hat said, that no application had yet been made to the
secretary of state, for^neral Wilkinson's letter; nor to the depart-
ment of war, for its order.
»
Mr. Martin. — If one department refuses, we may presume
that the others will.
Mr. Burr.-— If the gentleman grants our demand, he may pro-
pose any iteration in its form thathe pleases.
117
Mn R ANDOLFH*«-^If any arrangement can be made to obtain
these papers, we would rather that it should be a voluntary act
on the part of the government.
Mr* Hay.— -I will attempt to obtain these papers; any, in
fact, that gentlemen may want, if the court will but say they are
material.
Mr. WiGKHAM.— Colonel Burr's counsel know little of the im-
portance of these papers, but from himself; and from that, they are
fuUy persuaded of their great importance. The attorney for the
United States says, that so far as his personal exertions will go,
he will attempt to obtain them, and firmly believes that his appli-
cation will be successful. But, sir, at Washington they may en-
'tertain very different views from himself. Under such circum-
stances, it is better to encounter the delay of three or four days,
to obtain the authority of this court, than trust to an expedient,
which may be unavailing. But I see no necessity for any such de-
lay, as the order may at once issue, by consent of parties. As to
the order from the navy department, a copy may be sufficient;
the original is already gone out. As to Wilkinson's letter, we
wi^ to see itself here ; and surely it may be trusted in the hands
of the attorney for the United States.
Mr. Hay. — It seems then, that the copies of papers from the
government of the United States will not be received. They are
not to be trusted. After such an observation, sir, I retract every
thing that I have promised : let geudemen, sir, take their own
course.
Here some warm desultory conversation took place at the bar,
when,
Mr. WiCKHAM observed, that as the unfortunate expres-
sion fell from him, he thought it proper to explain. He had in-
tended no insinuation against the fairness of the conduct of the
government : that the distinction he had drawn between an ori-
ginal and a copy, simply resulted from his anxiety to obtain the
highest possible degree of evidence; hence he preferred the ori-
ginal to the copy : that if .Wilkinson was here it would be neces-
sary to meet him with his own letter; perhaps in no other way.
Mr. Hay. — That explanation removes the difficulty.
Mr. WiCKHAM. — We wish to confront him with his own
letter.
Mr. Hay.— Perhaps they may not be ab^e to remove the ori-
ginal, as it is already filed in the department of state.
Mr. Martin. — We are ready to go on with the discussion. .
Mr. WicKHAM. — ^The president's message mentioned, that
this was a letter to himself.
Mr. Hay. — I hope the court will remember that remark.
The letter these gendemen then want is addressed to Thomas
Jcflerson. Have they a right to demand any but pdblic letters
118
Mr. Martin. — The president's message ssud^ it was address-
ed to him as president of the United States.
Mr. Hat. — If it be a public letter, it is of course deposited in
ihe department of state. I have no objection, since this insinua-
tion has been removed, to repeat my promise to apply for these
papers, if the court thinks them material ; and when the business
arrives at the proper stage, they may then be produced. I hope
that no more time will be wasted in these preliminary stages ; and
that such arrangements may be adopted as will prevent thb use-
less consumption of time.
Mr. Randolph had no reason to believe, that there had beed
more delay on his side, than oh the other; that if time was to be
consumed at all, more would be employed in removing greater
difficulties than had already been done; that he, however, only
hinted at this now. He declared with Mr. Wickham his perfect
concurrence in this measure.
r
Mr. BoTTs. — ^We are unanimous oh this point, I am sure.
Sir, I cannot sit down, and hear complaints so unnecessarily re«
peated, about the waste of time. It is time, sir, to be done with
them. It is time that we should enjoy something like the liberty
of speech. Mr. Hay makes, I think, about a dozen times as
many speeches as any odier gentleman; and each speech longer
than those of other persons; and yet we cannot open our mouths,
without his sounding loudly his complaints to the ears of this
hall. On this case of unequal magnitude, shall we not be suffered
to declare our opinions, without this unnecessary complaint
about the consumption of the court^s time ? We feel the magm-
tude o)F our duties, and we shall firmly discharge them in spite
of Mr. Hay. It is obvious to you, sir, and to every body, that
the delay is not with us. If, sir, you call for an argument, we
are ready to proceed : but if you are satisfied, we shsdl be silent.
Chief Justice. — If the attorney for the United States is satis-
fied that this court has a right to issue the subpoena duces tecum^
I will grant the motion.
Mr. Hay. — I am not, sir.
Chief Justice. — I am not prepared to give an opinion on
this point; and, therefore, I must call for an argument.
Mr. Hay. — ^When I said that there had been a great con-
sumption of time, I certainly did not mean to insinuate that thci/
only consumed it. I have certainly had my full proportion. I
thought, however, that my proposition would have saved sonxe
time; and I am still willing to repeat my promise.
Mr. Randolph. — That the court may understand us, I ^U
read to them the form of the subpoena which we wbh to obtain.
[Here Mr. Randolph read the sketch before him.]
11^
Mr. BoTTs.—- We win be under the direcUon of the court,
whether we shall proceed in the argument to day or to-morrow.
Chief Justice. — ^Unquestionably there must be an argument,
if the attorney forthe United States disputes the authority of the
court to grant the motion.
Mr. Hay. — ^Whatever other gentlemen may think on this sub-
ject, I have not the least doubt that these papers will be pro-
duced, because Mr. Robert Smith has vokmtarily furnished me
with the order of the navy department. But aldiough I may pro-
curej^these papers, let it be distmctly understood, tlut I shall ob-
ject to their being unnecessarily produced.
Mr. BoTTs. — It will take four days at least to interchange let-
ters between this city and Washington, and two or three days to
copy the papers, so that six days will be totally lost to us. In the
mean time, thirty of forty witnesses, and sixteen grand jurymen
(they might, perhaps, require them) would be detained here;
and sifter all, the attorney's application to the government might
be unavailing.
Mr. Hay. — Since then gentlemen, sir, will press this subject,
I ask no more than that they will waive this discussion tiU to-
morrow.
The court was then adjourned till to-morrow, eleven o'clock.
Wednesday, June 10th, 180r.
The court met according to adjournment.
The^subject of the subpoena duces tecum was resumed.
The following affidavit, drawn up and sworn to by Mr. Burr,
was read, in support of the motion for the subpoena.
^ Aaron Burr, maketh oath, that he hath great reasoli to be-
lieve, that a letter from general Wilkinson to the president of the
United States, dated 21st October, 1806, as' mentioned in the
president's message of the 22d 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
any one by his authority, to the said letter, may be material in his
defence, m the prosecution' against him. And further, that he
hath reason to believe, the military and naval orders given by
the president of the United States, through the departments of
and of the navy, to the officers of the army and navy, at or
the New-Orleans stations, touching or concerning the said
Burr, or his property, will also be material in his defence.
** AARON BURR.
** Sworn to in open court, l6th June, 1807."
120
Mr. Hat begged leave to give notice to the court and the
f opposite counsel, that in conformity to the information which
he had yesterday given, he had addressed a letter to the pre*
sident, stating the motion that was to be made this day, and
suggesting the propriety of sending on the papers required;
but reserving to himself the right of retaining them, till the
^ court saw them, and determined their materiality. He hoped
to have them in his possession in five days. He should how- '
ever- object to the affidavit produced, and to the right of colo-
I nel Burr to make the motion at the present time. It was a pre-
liminary question, which he wished first to be determined,
\ whether any man, standing in colonel Burr's situation, had a
right to make such a motion. He believed the fact to be, that
r if these papers should ever come to hand, they would not go
out of the hands of the court; for he was satisfied,- that they
could not be material in this case, from the substance of one
of those very papers, which was already in his possession. He
wished not to waste the time of the court ; but there were se-
veral preliminary points, which he should be obliged to sub-
mit to their consideration ; and before the discussion could be
ended, the papers would be here. He confessed himself ex-
tremely unwilling to enter into any discussion on these papers.
Gentlemen might take it for granted if they pleased, that he
felt a disinclination to furnish them with these papers; but the
fact was not so.' Gentlemen ought themselves to have applied
for them; for he was satisfied, from the character of the govern-
ment, that every necessary paper would have been cheerfully
supplied. He had no doubt the court, and even the opposing
counsel, would acquiesce in the same opinion. He trusted that
the present motion was not made to show the talents of gen-
tlemen; he assured them that if general Wilkinson should
come, they would have a splendid opportunity of displaying
them, to their hearts' content. He requested them once more
to deliberate on his propositions.
Mr. Martin assured the gentleman, that there was no
need for further deliberation; that it was strange, that the gen-
tleman should complain so much of the consumption of time,
at the very moment when he spoke of -the long period he
should require for this discussion, and the many preliminary
points which he had to submit. The gentleman too had spoken
warmly of certain impressions and opinions, and even of our
own; but he trusted, that the gentleman would leave it to
themselves to declare their own impressions: that it was im.
possible for him to search their hearts, and that he was 8u.re,
that nothing, that had yet fallen from them, justified the eulo-
gies upon the government, which he had been kind enough to
attribute to them.
121
'i/lr. WiQKKAfJi observed, that Mn Hay had promised the
appearance of these papers; and that was all they wanted. The
object was not to bring the president here, but to obtain cer-
tain papers which he had in his possession. That the effect of
the process required, was the result promised by Mr. Hay.
As to the objection, that part of the papers was confidential ;
would it not be easy to make an indorsement ot such as the
president would not wish to go out of the court? That, how-
•▼er, Mr. Hay's promises might be unavailing: at Washington
they might entertain very different views from him. As to the
opportunity of displaying talents, nothing would be better cal-
culated to defeat that object than for the attorney for the
United States to give his consent that process should issue.
Mr. Hat had not heard the gentleman distinctly. He
thought he heard the word ^ consent/^ but he assured him,
he had not consented, and never would consent to such a pro-
position.
Mr. Martin then rose to open the motion ; when some dA
Sultoiy discussion ensued as to the order of proceeding.
Mr. Hat contended, that this question was premature ; that
the preliminary question, whether colonel Burr was entided to
make this motion, ought first to be settled. If the court pleased,
he would state the ground on which he denied the existence of
this right.
The chief justice having decided, that Mr. Hay might
state his objections, the latter proceeded to this effect:
The motion now made by Mr. Burr, as far as he could un-
derstand it, was to obtain from the court a subpoena to the
president of the United States, to attend this court with an
ori^nal letter written to him by general Wilkinson, and re-
ferred to in his communication to congress, of the 27th Ja^
noary, 1807. He contended that it was premature; that colonel
Burr was not authorised to make it by any legal precedent
that could be shown, or by any statute in force in this country,
while be remained in his present situation. What was that si-
tuation? He had been committed for a misdemeanor and re*
cognised to appear before this court; in consequence of which
he was now present. No bills had yet been sent to the grand
jury. In this situation, colonel Burr applies to this court for a
compulsory process, or a subpoena duces tecum^ to the presi-
dent of the United States, commanding him to attend with
«:ertain papers, and if he does not attend, or the papers are not
]»oduced, the court may then be applied to, to issue an atiach-
B&cnt against hint.
Vol. I. Q
122
fiow I contend, said Mr. Hay, that no individual, charged*
t^ith a crime, has any right to legal process, until the grand
j.ury have found a true bill, and the prosecutor has announced
his intention to proceed thereupon. Gentlemen will please to
point out in the constitution of the United States, in the laws,
of congress, or in the common law, the smallest right to make
this motion. They will search in vain.» in the various materials
and reports of the common law, for a precedent to justify this
attempt. The acts of congress supply them with no authority;
and there is nothing in the constitution which relates to the sub-
ject, exceptthe eighth amendment, which most obviously refers
to a different stage of the prosecution from this.. '^ In aU criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, &c. — ^to have compulsory process for obtaining wit-
nesses in his favour, and to have tht; assistance of counsel for
his defence." Will gentlemen contend that this clause relates
to any of the preliminary steps of the prosecution, before the
prosecution itself is commenced by the finding of the bill?
This clause was never intended for any of the preliminary
steps: the arrest, transportation, or examination, of the accused.
Its object was to secure to every man the benefit of * a fair
and impartiattrial^^ not on the examination before the examin-
ing magistrate, but on the trial before the petit jury. When
the trial commences, it is then that the accused is to be con-
fronted with the witnesses against him; it is then that he is en-c
titled to compulsory process for obtaining witnesses in his fa*
vour; it is then that he is to have counsel for his defence. It is
true, sir, that in this first stage, (incipient stage as it is called
in fashionable phrase) Aaron Burr has already not one counsel^.
But four; and not only counsel in this district, but celebrated
counsel from other states. It is true also,, that the clerk oi this'
court has already issued subpoenas ; but these subpsnas were
gratuitous, and had they been refused, there was no law to
compel him to grant them. But do all these circumstances
prove, that Aaron Burr has authority at this stage of the busi-
ness to make the present application to the court? But let us
suppose that they have obtained what they require ; that this
subpoena has issued, and that the president is here; that he has
been called to this court from Washington, where national con-
cerns of such deep weight and importance are entrusted to his*
guidance ; what then?^
Mr. WiGKHAM begged leave to interrupt Mr. Hay. It was
not in fact a subpoena for the president, but only for certaia
papers, which they required. .
Mr. Hay. — Even that supposition does not remove the pre-
maturity of the present motion. I ask what is to be done witLu
123
these papers, if brought hither by this subpoena ? If the presi-
dent were to come here with them in his pocket, I will say
nothing of the manifest and many inconveniences which his
absence from the seat of government might occasion, but I
ask, what would be done with these papers? The gentlemen
cannot answer this question, /only am competent to answer.
And whv? Because no kind of use can be made of this evi-
dence until I have laid my biHs before the grand jury, and un-
til they have found them to be true. Will gentlemen proceed
on such calculations; that the bills witi be sent up^ and that
they will certainly be found to be true bills? If general Wil-
kinson comes, (and that he will I can entertain no doubt, from
the intelligence I have heard this morning) the prosecution
will certainly progress ; and in that case only can these papers
be wanted.
There is another little difficulty in this case. When is this
process to be made returnable ? Some day must be named ; but
can the court possibly name any day, when the witnesses or
the papers shall be wanted? Do the records of this court indi-
cate any particular day when the trial is to commence? Sir,
such a nomination would be completely arbitrary. Let an in-
dictment be first found, and a day set for the trial ; and on that
day this process may be made returnable. But, sir, if a day
could be fixed, it does not appear that this testimony will be
wanted during this term. It depends on the arrival of general
Wilkinson. It literally depends on the winds and the tvaves.
The very language of the process confirms this argument.
How coidd the evidence be heard before the accused is put
upon his trial? Perhaps it maybe said, that this evidence will
be wanted in case we repeat our motion to commit Aaron
Burr for high treason, and which we certainly shall attempt, if
general Wilkinson does not make his appearance. On this
point, two remarks only are necessary to be made. The first is,
that no such motion is actually before the court. And the se-
cond is, that if such motion were made, the court would have
no right to issue process before the trial. The court has no
more rights for this purpose than an individual magistrate
would have ; and in fact it was only a very few days ago, that
the court did actually consider themselves placed in this vecy
situation. Now if such an application had been made to your
honour out of doors, is there any law in America, (or in any
part of the civilized, world) to justify a postponement of the
examination until a subpccna has been granted? It is true, that
evidence on both sides has been sometimes produced; but this
took place when the evidence happened to be present: but
there does not exist a single precedent, in all the annals of ju-
prudence, where the course of an examination (las been sus-
124
pended by an application for subpoenas, and the writing for the
witnesses. The present motion, therefore, is manifestly prema*
ture. Mr. Hay confessed, that his object was to save time: he
was confident that the documents would be forwarded in a much
shorter time than they could possibly obtain them by this pro-
cess. Why were they not sooner applied for? Though there had
been some correspondence between Mr. Randolph and Mr.
Smith, about an order from the navy department, yet never be-
fore yesterday was the materiality of general Wilkinson's letter
suggested; although it had been publicly known to exist as long
ago as' the 27th of January. The accused and his counsel knew
this, yet they never m^de any attempts to obtain it^ or ever
stated its materiality.
Mr. WiCKHAM would not inquire, whether it was the object
of the gentleman to save or to obtain time; though probably the
last, as gentlemen seemed very solicitous to send on a messen-
ger to Washington, to obtain instructions directing them how to
act; but if the saving of time was an object with die court, the
course which he recommended was the best calculated to obtain,
it. It was the shortest way to resort at once to that expedient,
which must be at last employed, if the expectations of the attorney
for the United States should turn out to be fallacious, and his
application at Washington should prove to be unavsuling. The
clerk himself, if called upon for subpoenas, must issue them
absolutely. It was the practice, and it was the law; but instead
of applying to the clerk, they deemed it necessary, in a case of
such importance, to make their application direcdy to the court.
They were more willing too to prefer this course, as they did
not wish the presence of the president, but only of certain pa-
pers; and it was not therefore their wish to obtain a common
subpoena for his person, but a subpoena duces tecum for those
papers.
I'his is the first time I have heard, since the declaration of
American Independence, that an accused man is not to obtain
witnesses in his behalf. What has the gentleman himself done?
Are there not witnesses present whom he has summoned, under
the authority of this court, and at his own special instance? And
will he at last admit, that there is to be no kind of equality be-
tween the accused and the prosecution; and that we are to
remain here perfectly mute, and bound hand and foot, to wait
the decision of his own witnesses?
But at what time are we to be entitled to these privileges?
At the period of colonel Burr's transportation? That is a most
unwarrantable proceeding; there is no such case recognised by
the constitution ; and therefore there could be nothing in that
cbnstitution to give us the right of founding any judicial proceed-
ing on such a. step. But^ sir, such an illegal transaction entitles
125
us to 8tiQ oiore; it entitles us to the protection of every citizen
in the country, as well as of this court* Suppose that colonel
Burr were now put on his examination; would he not have
a right to examine any witnesses who were beyond the bar; and
of course to subpoena every man who would be brought before
you during the term of examination? This practice is every day
pursued by judges and magistrates in superior and inferior
courts. Why not in the present case?
It has been said, that there is nothing in this country to justify
such an application; that there are no precedents. But I will
quote, sir, another trial, which was similar in its proceedings,
and similar, I trust, in its results. I refer to the cases of
Smidi and Ogden, before the circuit court of New* York.
Subpoenas were actually taken out, Isefore the trial, for Messrs*
Madison and Dearborn; and even the expenses of their travelling
were tendered to them: but the proceedings did not even stop
here. For a motion for an attachment was made before the court,
founded upon the proof of serving these subpoenas, and the proof
of offered compensation. The argument at length closed on this
motion for attachment; but no man doubted the right of the
court to issue subpoenas. The only question was, whether at that
time, an attachment ought to issue. The court was unanimous
about the right of subposnas; but on the attachment, they were
divided: judge Patterson being for it, and judge Talmadge
against it.
We are however, asked, sir, for what purpose do we wish to
procure thb evidence? It is at their option to say, whether bills
shall be laid before the grand jury or not. Granted, sir; it is in
the power of the attorney for the United States to send up his
biDs or not. But should these bills be found true, and the trial
come on, may we not be ruled to trial instanter^ and without
the aid of our witnesses? But what was done the other day,
may hereafter be repeated. Witnesses are introduced on behalf
of the United States, and others perhaps would have been on
the motion for commitment. This motion is for the present
only suspended; but if that be the case, may not the testimony
now required, be relevant to our defence? The attorney for the
United States triumphandy declares, that we must do as he
pleases; and that we know not what he intends to do. That is
true, sir; but may not we too, do something? May not colonel
Burr move for his discharge? As he is to remain here until the
court pleases to discharge him, may he not move for his recog-
lusance to be discharged? Have we no right also to all the means
which are necessary for the fair administration of justice?
•* No time is stipulated for the return of the subpoena." This
is a great difficulty indeed ! It will be admitted, dien, that the
court has a right to issue a subpoena; and yet, because there hop*
pens to be no particular provision about the day, this right must
126
b^ necessarily null. But, sir, is this objection really justified by
practice? Has not the court a right to fix a day for the return of
the processes of this sort, according to their own convenience, or
the convenience of parties?
But why have we not applied for these documents sooner?
Tes, sir, it ts asked of us, why we have not made this application
sooner; and yet even now does the gentleman wish to delay iu
He declared that we have made it too soon; and yet now he de-
clares that we have made it too late. Now, it cannot be both :
if it be too late, it certainly cannot be too soon.
We have heard some remarks upon colonel Burr's privileges:
and among others, upon the four counsellors who are to defend
him. But what kind of an argument is this? If we turn to the
laws of congress, we shaH find, there is one attorney for the
United States appropriated to each district; and yet there are no
less than three counsellors employed on the present occasion.
No doubt there is a law providing for the payment of the two
others out of the treasury; but with what propriety can these
gendemen complain of my client making such arrangements as
may suit his convenience or his interest? But what are all these
remarks to the subpcena duces tecum ? Sir, it is useless to multi-
ply arguments on this subject. It is a settled rule, since the an-
cient times of King John; since the formation of magna charta
kself, that the accused has a right to subpcena witnesses; and not
only to any other form, but subpoena duces tecum^ under such
modifications as the court may please to prescribe.
Mr. Martin read an extract from the case of Smith and
Ogden, in New-York, about issuing an attachment.
Mr. Hat asserted, that this extract did not prove the position
contended For; that there was no case of a subpoena having issued
before tht: finding of an indictment; that if the clerk ever had
issued them, it was a mere voluntaiy unauthorised act. He chal-
lenged the experienced gentleman from Maryland to cite a
single instance of an application to a court for subpoenas, before
the finding of a bill of indictment.
Mr. Martin replied, thatif there were no precedents on this
very point, it was because this objection never was made before,
and he hoped never would be made again.
Here a desultory conversation ensued; when,
Mr. Hay observed, that gentlemen affected to believe, that
Ae present course pursued by the prosecution was dictated by
a wish to suppress the evidence; that he conjured the gentlemen
to remember that he had voluntarily applied for the papers which
they wanted, and had no doubt of obtaining them; and that he
made these remarks to guard any human being from the suspi-
)(ion, that there was a disposition to refuse the papers; that he
127
ahonld exert himself with no less zeal to obtain the evidence that
was wanted for colonel Burr, than that which might be produced
against him*
The Chief Justice observed, that he would not at present
deliver any decided opinion upon the point, though he was dis-
posed to believe, that the accused had a right to apply for sub-
poenas. He cited the case of a man, who had been some time
before brought before him and condemned for counterfeiting
bank notes. In that case the prisoner had attempted to delay the
trial by pretending that he had witnesses in Baltimore; which plea
had been rejected by the court, principally on the ground that he
had not before summoned those witnesses. The chief justice, how-
ever, observed, that he should not decide this question at pre-
sent, but reserve it for future decision; in the mean dme, the
oounsel might proceed with the other part of the argument.
Some conversation here ensued, between Mr. Botts and Mr^
Hat, on the interpretation of an act erf* congress, in which the
term ^^ accused" was employed.
Mr. Martin then rose to support the propriety of granting-
this particular subpoena. He laid down as a general principle, in
all civil or criminal cases, that every man had a right to process
to establish his rights or his innocence. Mac Nally's Evidence,
vol. 1. p. 255. Does there exist a single case in the British au-
diorities in opposition to this doctrine T Surely these gentlemen
do not intend to represent the president as a kind of sovereign^
or as a king of Great Britain. He is no more than a servant of
the people. But even the British king may be called upon to
^ve testimony to his people. It is true, he is not obliged to be
subpoenaed, and to appear in a court of justice; but his testimony
under his sign manual is received as authentic evidence.
Chief Justice. — ^The counsel on the opposite side adn^t,
that the president may be summoned.
Mr. Martin. — They have surely never admitted it before.
However, I am happy that is now admitted; as it will spare me
a part of my argument. I will proceed then to the others. The
next question is, whether the president can be summoned to at-
tend with certain papers. One of them we want is an original
letter from general Wilkinson, of the 31st October, and received
by the president on the 27th of November. This letter, as ap-
pears by colonel Burr's affidavit, is considered by him as neces-
sary to his defence; and his counsel, so far as they understated
the subject, are of the same opinion. The other papers are co-
pics of official orders by the navy and war departments. It may
t»e said, sir, that if application were made to those departments,
cokmd Burr had a right to the papers : for we had supposed.
I2«
that eveiy citizen was entitled to such copies of official papers
as are material to him. And I have never heard c^ but one in<»
stance where they were refused; and this was most certainly un*
der presidentisd influence.
Mr. Randolph here enumerated the particulars of his own
correspondence with Mn Robert Smith, secretary of the navy.
Mr. Martin proceeded to the following eflPect : I have as-
serted, that colonel Burr was entitled to a copy of these orders.
We intended to show, that these orders were contrary to the con-
stitution and the lawv, and that they entitled colonel Burr to the
right of resistance. We intended to show, that by this particulate
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 ori-
ginals themselves. But we did apply for copies ; and were refu-
sed under presidential influence. In New- York, on the farcical
trials of Ogden and Smith, the ofiieers 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 apply directly to the president of
the United States. Whether it would have been best to have ap-
plied to the secretaries of state, of the navy and war, I cannot
say. All that we want is, the copies of some psmers, and the
original of another. This is a peculiar case, sir. The president
has undertaken to prejudge my client 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 pro-
claimed him a traitor in the face of that country, which has re-
warded him. He has let slip the dogs of war, the hell-hounds of
persecution, to hunt down my friend. And would this presi-
dent of the United States, who has raised all this absurd cla*
mour, pretend to keep back the papers which are wanted for this
mal, where life itself is at stake? It is a sacred principle, that in
all such caseS) the accused has a right to all the evidence which i9
necessary for his defence. And whoever withholds, wilfully, in-
formation that would save 'the life of a person, charged wiUi a
capital offence, is substantially a murderer, and so recorded in the
register of heaven. Can it then be presumed that the president
would be sorr}' to have colonel Burr's innocence proved ? No, it
is impossible. Would the president of the United States give
his enemies (for enemies he has, like other great and good men)
would he give them the proud opportunity of saying that colo-
nel Burr is the victim of anger, jealousy, and hatred? Will he
not act with all possible candour ? When told that certain papers
are" material to our defence, will he not be proud to say to us,
^^ Sirs, you may have them ; I will grant you every possible ad^
129
vantage/' Had tlus been doney^e attorney lor die United ^Stirtes
(and perhaps the executive) never would have said that these pai*
Cnrs are no more material to us than the first paragraph of the
ws of congress. These gentlemen forget, that it is not their
province to decide, whether the evidence is material to us or not.
It is for the court to say, whether it bears upon the case; and whe*
ther it is to go before the petit jury, or to come before ^emselves,
if the motion to commit for treason be continued.
They seem to think, that we are not even to be trusted with
these papers. But why do they attribute motives to colonel
Burr's counsel, which they would themselves disdain? Why
not do as much honour to ourselves, as to the president of the
United States himself?
It may be suggested, that this is a private and confidential let-*
ter from general Wilkinson to the president. It was so said, in-
deed, yesterday. But if the president were here himself,. the
court would have a right to demand, whether in confidential con«
versations general Wilkinson had not given very different state-
menta from those which he might here produce? What, air,
if general Wilkinson had reposed as much confidence, if he had
instilled as much poison into the ear of the president, as Satan
himself breathed into the ear of Eve ; the president would have
been still responsible to a court of justice, and bound to.disckMe
his communications. The law recognises none of this kind of
confidence. I refer your honours to 2 Atkins, 524, from which it
appears that no man is privileged to withhold secrets: And to 1 1
State Trials, Dutchess of Kingston's case: There a physician en*
treated of the court to excuse him ; but even his professional
confidence (though of the most delicate nature) would not screen
him. Lord Barrington in that case conjured them to excuse his
giving in testimony what had been disclosed to him in all the
confidence of private friendship. All his solicitations were dis-
regarded. In MacNally, page 250, it is declared, that there can be
no secrets, but those which are confided to counsellors and at-
torneys. Now let us suppose, that this information was convey-
ed to him by a letter ; nay, by a private and confidential letter:
Could we not have the president produced here ; could we not
examine him, whether he had ever received such a letter ?
But perhaps we shall be told, that this would be making too
free with high characters ; that we call the honour of genend
IVilkinaon into question; and that it is not less than treason to
suppose it possible, that general Wilkinson is not as pure as an
angeL But, sir, will it be forgotten, that this man has already
Kroken the constitution to support his violent measures; that he
has already ground down the civil authorities into dust ; and
subjected all around him to a military despotism? Is it pos-
sible to believe, that such a man may not swerve from the strict
line of rectitude and decorum ? To show the ease with whith
Vol. I. R
i
130
Qiis man majr be destroyed by anotiier man or bya faction, and
with the same unfeeling indi&rence a3 a philosopher sees rats
struggling in an air pump, I wili nead a quotation from Tuck^
er's Biackstone. [Here be read it«] Mn Martin produced several
instances, where the originals of recorded papers were brought
before a court of justice.
Respecting copies of die navy orders for destroying the pnH
perty and person of colonel Burr, it is very materud to possess
them. It may be necessary to show, that these acts, which the
prosecutors are pleased to deem treasonable, were in fact no«
thing but justifiable means for defending his own rights*
Mr. Mac RA£.-^May it please the court : I regret extremely,
that on a question so simple, and so eminently divested of all
personal feelings, as the present, the counsel for the prisoner
should have considered it as their du^ to wander so widely
&om the subject before us. I could have wished, sir, that instead
of talking about shadows; instead of complaining against certain
pretended persecutions attributed to the government of the
United States ; instead of indulging in defamation and abuse
against the officers of government, which can neither be justified
nor excused, they had confined their observations to the single
and simple question now presented to your consideration: Whe-
ther this court had the right to issue a subpoena duces tecumyvA^
dressed to the president of the United States? I will not, air,
imitate the example which has been thus bountifully set me,
however ample may be the materials, or however rich the har-
vest which is now spread before me. Whatever I may think of
the guilt of Aaron Burr; by whatever emodons of disgust and
> indignation my bosom may be agitated by a contemplation of
his conduct, I will attempt to suppress my opinions and feelings
for the present. The time may come, sir, when I shall be at full
liberty to c^ve them loose. When Aaron Burr shall be put upon
bis trial; when he shall attend at your bar as a dangerous and
indicted criminal, I shall not hesitate, sir, in the presence of the
petit iury, in the presence of this court, and in the presence of
the whole world, to express all my opinions and feelings. But,
sir, I shall waive this privilege for the present. I cannot but
consider it as highly indecorous, when contemplating this single
question, to embrace all the merits of the case. Mr. Martin
need not have talked so much of the president's elevation. He
need not have taken such uncommon pains to expatiate upon
the high office which he fills, nor so invidiously compare it with
the irresponsible monarchy of England ; as if the present presi-
dent considered himself superior to the laws. Although, in this
country, the decisions of our courts may be considered as doubt-
ful, it is perhaps certain, that a subpoena ought not to go against
him; yet, sir, anxious to show to the world that we feel nothing
of that spirit of persecution, which has been s6 industriously
131
and idly attriimled to our govermnent; sdiciknis to give an un-
erring proof of the principles on which we act, we sh^ not ahel'
ter ourselves under these precedents Established by the courts of
the United States. Elevated as our illustrious president is, yet
our principles are, that when life is in jeopardy, he may be sum-
moned like any individual, where he is able to disclose impor-
tant facts, and when the national interests will admit ef his attend-
ance. As, then, we admit that a subpcena may issue against him:
as well as against any other man, where was the necessity of ex-
patiating so widely upon his elevated station? When aH the
facts which relate to this transaction come to be fully developed ;
when truth, ana not passion, shall guide our understanding, I do
not hesitate to affirm my belief, that the bolt, which has been le*
veBed against his reputation, will vanish into air. I am sorry, sir,
to be under the necessity of making such remarks as these, but
let the Uame fail where it is due, upon the gentleman from Ma-
ryland, who has extorted them, and not upon myself. And here,
sir, permit me to read the affidavit on which this motion is
grounded. I do not understand from this affidavit, that any other
order is requi1%d from the navy department, than the one which
was addressed to commodore Shaw, and is said to have been pub**
fished in the Natchez Gazette. That order is alreadv in court;
and the attorney for the United States has pledged himself to
produce it, if the coin-t will but decide on the propriety of its ex-
nibition. The only new piqper, therefore, which is required by
dus affidavit, is the original letter of general Wilkinson to the
president of the United States.
Mr. WiCKHAM here observed, that the gentleman had mista-
ken the object of the application. We not only (said he) want
this letter, but the order of the navy department. They tell us
they have the order, and are ready to produce it ; but we doubt
the identity of this copy. Without meanmg any imputation upon
Mr. Smith, we say, that they have several orders from his de-
partment. Let us see this order then, and we may ascertain whe-
ther it be the identical one, which we want. Let us but inspect
the order which these gentlemen halve in their possession, and if
it be the one which we require, the process to be issued may be
made more limited in its operation.
Mr. Hay. — ^The secretary of the navy inclosed (his order to
bm; for what purpose I know not, unless it was for the sake of
showing it. But as I am not particularly intsructtd on tlus point,
I do not conceive myself authorised to produce it at present, I
w91 exhibit this paper, if the court thinks- it materiaL
Mr. WiCKHAM. — ^We have a right to apply to the president
of die United States for the copy of any oi'der; but it it id al-
leged to be a state paper, it must not be refused on the allega-
tions of counsel, but on the oath of the officer.
L
132
Mr. Mac Rae.— >l8 your subpcsna then to be addressed to
these other officers i
Mr. WicKHAM. — No, sir, to the president alone, who has all
these offices under his control.
Mr. Mac Rae. — I will attempt to satisfy the court, that the
counsel have not grounded their motion upon this affidavit;
[Here Mr. Mac Rae read the affidavit.] '•^ May be material to
his defence.'' Now, sir, how is this ? I had always understood
before, that all applications of this kind must be founded upon
positive averment; th^t the party was not at liberty to state vague
and loose conjectures, but that he must give undoubting' asser-
tions ; and what was still further, that he should swear that these
documents were material to his defence. The oath is not, that
they may possibly be of use; that they may or may not be mate-
riaL On this subject it is not merely sufficient to advaQce some
precarious conjectures; but the party must explicitly state his
belief, not that they may be, but that they are material. Nay,
still further; in criminal cases, the party is not merely required
by the court to say, that they are material, but to say in what re-
spect they are so. In these points then, this affidavit is essen-
tially defective. It certainly does not state how these documents
are material ; it does hot even assert that they are material, but
only advances a conjecture that they may be so.
I believe, sir, on the authority of a decision ofthe court of the
United States, in the case of Cooper, of Northumberland, (p. 13
of the report of the trial) it may be shown, that the present
party has no authority to demand these papers.
And, sir, the case of Cooper was materially distinguished
from the one before the court in this important feature; that
the public officers were in the very city, and on the very spot^
where the the trial was conducted. The seat of government was
then at Philadelphia, and not at Washington. This case, sir, waa
well known to every individual, who was interested in the poli-
tics of those times. It is sufficient merely to repeat, that Cooper
was sued for a libel ; that he put in two pleas : first, not guilty :
secondly, justification ; and that in order to support his plea of
justification, he applied to the court for a subpoena to the presi^
dent of the United States to obtain certain public documents.
And what did the judge decide f He decided that the subpoeaia
ought not to issue, and declared in strong terms against the prin-
oiple now contended for.
But, sir^ strong as that opinion is in our favour, and though it
completely goes to deprive the prisoner of the privilege which
he claims; and though it is to be considered as law in the courts
of the United States; yet, sir, abhorring any thing diat looks like
persecution, we should have disdained to shelter ourselves under
this abominable precedent. We desire that the prisoner may
133
possess all the information which is necessaiy to hU defence. It
18 my sincere wish, in this as well as in every other point, to
give him all the assistance, which evidence can afford. From
our souls, do we abhor every, the slightest thing which wears
the appearance of persecution. Sir, I have only re£(d this autho-
rity, to show, that we might easily have refused this demand
under one of the precedents established by a court of the United
States.
Mr. Martin has said, that no secrets ought to be withheld
from a court of justice, except those which have been confidential-
ly entrusted to legal counsel; that this is the only exception to
the general doctrine of evidence; and that in all other cases, the
witnesses may be compelled to give information. The exception
recognised by Mr. Martin, certainly does exist; but Mr. Mar-
tin has taken ground too narrow, nor is that the only case where
the witness is permitted to keep his information to himself. Sir,
if a confidential communication has been made to Thomas Jef-
fersoti, he is not responsible to a court of justice for its contents.
I speak, sir, with due submission to the court; but I ground my
opinion principally on a decision of the supreme court of the
United States. My position is, that if a communication is confi-
dentially made to Thomas Jefferson, he is not bound to appear
before this or any other court, to disclose it. It is unnecessary to
collect arguments to demonstrate the soundness of the policy on
which this principle is founded : that would be an easy task.
But, sir, instead of wasting my time and that of the court upoa
the policy of the measure, I will refer you at once to a prece-
dent. In the case of Marbury v. Madison, in the supreme court
of the United States, Cranch's Reports, pages 143, 144, 145,
Mr. Lincoln, the attorney general, was called into court, and it
was vehemently contended, that he might be compelled to give
information like any other citizen. Mr. Lincoln stated his ob-
jections in the following terms : First, ^^ That he did not think
himself bound to disclose his official transactions, while acting as
secretary of state." Second, ^^ That he ought not to be compelled to
answer any thing which might tend to criminate himself." The
court supported him in these objections. It follows from these opi-
nions, that the court should always receive special information
about the papers, which a party wishes to obtain, before they autho-
rise him to demand them. They ought to ascertain whether these
papers contain confidential communications to the head of the
government. But, sir, if the papers which are called for by the
affidavit of Aaron Burr be of a public nature, why should the
coort issue a subpoena duces tecum to demand them? The oppo-
site counsel may rest assured, and the attorney for the United
States has actuaUy pledged himself solemnly to this court, that
he would spare no exertions to obtain a copy of them, if the copy
irould be sufficient; or the origmak, if copies will not avail.
134
Bujt, sir, if this letter be of a confidential nature, it is not the duly
of the pfeaident of the United States to produce it in this court
or any where eke.
And where is the propriety of directing this subpoena in any
event to the president? If it be a public letter, it is undoubtedly
deposited with every other paper of the same complexion in the
archives of state. Why then is not this subpoena addressed to the
secretary of state, instead of th6 president of the United States?
There is no specific reason why this informality is adopted; for
gentleman do not even pretend that they want the president's
person. All that they pretend to require are certain, papers in his
possession; and these are evidently to be obtained, without the
necessity of dragging him from Washington to this city. But,
sir, if these papers are not of a public nature, but confidential
communications, then it is not necessary or proper to subpoena
Thomas JeiTerson.
One remark more and I have done. The gentlemen insist
upon the necessity of producing in this court the original letter
from general Wilkinson to the president of the United States.
I will suggest an expedient, which may obviate every possible
inconvenience. If your honours say, that a copy of this letter
may be read in evidence, like copies of all other documents in
the departments of government, then also will the attorney for
the United States consent, that this copy may be read and have
the very same effect as the original. But gentlemen may contend
that general Wilkinson would object to this copy. Sir, general
Wilkinson would have no right to urge such an objection; and
much less, when he should understand that this very copy is ex-
pressly introduced into the court, on the principle of possessing
the same validity as the original itself. But, sir, if general Wil-
kinson should dare to raise this objection; if he should pretend
to declare that this was not his letter, or that it was not an ftu«
thenticated and correct copy, a few days only would elapse when
the original would certain^ be produced.
Mr. Mac Rae concluded with repeating his sincere wish^
that every proper testimony necessary to the prisoner's defence
should be produced; but with expressing his hopes, that no
such step as at that time recommended by the opposite coun-
sel, would be sanctioned by the court.
Mr. BoTTs.— In a.govemment of laws, where majesty and
prerogative are proscribed, and where the authorities of adl the
public functionaries are to be exercised for the benefit of the
people, there are but few instances in which the policy of state
secrecy can prevail. In the national intercourse withforeignstates,
where the relations present subjects fit for privacy, the rare duty
of concealment may occur. Some time ago, when the hue and cry
of treason was rung through the countr\s there might have been
135
aa excuse for fhe clum of securing from the e^e of the sus-
pected, particular acts of the cabinet* At this moment it
will not be pretended, that the public, good can require, that
' colonel Burr should not have the means from the departments
required for his justification.
Can any innocent purpose, said Mr. Botts, be subserved by
thepresident's withholding the documents demanded? and will
the counsel malign him by imputing to him a guilty one? The act
of congress provides fees for copies from the ministerial offices
under the control of the president, and every individual has a
right todemandthem on paying the statuary charges. If indivi*
duals in common have this right, why has it been denied to colonel
Burr, whose fate may depend in some degree on them ? One of
the copies was promised, but the promise was forgotten. State
policy in England has done a great deal of mischief; it has
often sheltered wicked and corrupt ministers from the punish-
ment due to their crimes: yet even there (where the principles
of liberty are not understood so well as in this country) in Sir
Home Popham's trial. Lord Melville, president of the board
of admiralty, was compelled, a few months ago, to appear and
^ve evidence concerning the instructions he had given to that
admiraL I do not now complain of the illiberal caution of the
gendemen in keeping hidden their written evidence, which, if
known in time, we might refute ; but such testimony as we think
material in our defence, we are at any rate entitled to without
favour from them. But the gentlemen have made a concession
of great liberality ! They say they are willing that the president
maybe summoned to attend, but not to give evidence when he
does attend: not to disclose any thing but what he may himself
condescend to make known. The president may be, and no
doubt is, a very great and good man ; but while his policy in re-
lation to the accused is s6 completely enveloped in mystery, the
counsel for the prosecution must pardon us, if we cannot consent
to pin our faith on his sleeve, and if we choose rather to betake
oarselves to our legal rights.
The opinion given by judge Chase on the trial of Cooper,
was reprobated by the politics of those gendemen who prose-
cute for the United States ; and yet they now wish to avail
diemselves of that authority. I congratulate them upon tl^eir de-
reliction of the old democratic opinions which prevailed at the
time of Cooper's trial, and which I thought would have gone
with ^y friends to their graves.
Mr. JVf AC Ra£ observed, that Mr. Botts ha^ misrepresented
the object for which he had introduced the opinion of judge
Chase; that he had not pretended to use it as authority ; but,
on the contrary, had expressly declared that he scorned to avail
himself of it.
13«
Mr. WiCKHAM said, that judge Chase's opinion pronounced
in the case of Cooper was not correctly ^inderstood. It was not
that the. president could not be summoned as a witness, but
that he ought not to be summoned to give evidence against
himself.
Mr. BoTTs proceeded to say, that even that qualified opi-
nion of judge Chase had been reprobated by the gentlemen; but
now they shelter themselves under it in effect, because they
use it as authority against the success of the present motion.
The gentlemen contend that the executive must judge whe-
ther the documents require secrecy or not. But how can this
judgment be exercised until they are called upon? And how
can the government be legally called on but by process of
subpoena duces tecum ? When this is serv&l the president may
make out his return.
As to the argument that a copy of general Wilkinson's letter
will be sufficient: Suppose, said Mr. Botts, general Wilkinson
should swear to one thing, and the copy of his letter should
say another;^ would you condemn him upon the president's cer-
tificate merely that the paper produced contained a true copy
of a letter from him ?
He concluded with observing, that, if a time shall ever ar-
rive when a person shall stand accused of a crime of the high-
est nature ; of a crime by which his life is endangered, if a part
of the testimony shall be concealed by those who administer
the government, and no policy of state requires it ; and yet the
court does not compel it to be produced to screen the devoted
victim; it will be a disastrous time for our country!
Mr. Wirt. — ^The counsel for the prosecution dp not deny
that the general subpcena ad testificandum^ may be issued to
summon the president of the United States, and that he is as
amenable to that process as any other citizen. If his public
functions disable him from obeying the process, that would be
a satisfactory excuse for his non-attendance pro hicc vice; but
does not go to prove his total exemption from the process*
We think farther, sir, that a man, standing in the situation of
the prisoner, has also the right to demand all papers material
for his defence, wheresoever they may be, the disclosure of which
will hot compromit the national safety; but then the papers
required must be shown to be material for his defence., The
subpoena ad testtficandumy is a matter of right, and the prisoner
might have demanded it from the clerk without the interven-
tion of the court; but here is a motion for a subpimia duces
tecum^ to compel the president to produce certain papers of
state, the materiality of which is not shown.
I shall contend first, sir, that the subpoena duces tecum is not n
process of right; that the motion for it, is a motion addressed
137
to the discretion of the court; and that the court may award
Or withhold it as they see fit*
In the next place, I shall contend, that this discretion of the ,
court should be controlled and determined only by the relevancy
and materiality of the papers required.
And, thirdly, that in the present instance, the relevancy and
materiality of the papers required are so far from being shown,
that, from every thing which appears, they are both immaterial
and entirely irrelevant.
I shall proceed to show, in the first place, that the subpoena
duces tecum is not a process of right, but that the application
I for it is addressed merely to the discretion of the court.
Mr. WiCKiiAM. — That is admitted, sir; we admit that it is
an application to the sound discretion of the court*
Mr* Wirt. — I thank you for the admission, sir* You have
relieved me from the unn/scessary trouble of so much of my
argument* It being conceded then, that this is an application
to the discretion of the court, the question naturally presents
itself, by what circumstances should that discretion be con-
trolled and determined ? Should it be by the mere wish of the
prisoner? If so, it is in vain that the court possesses any dis*
cretion on the subject ; the only discretion exercised about it^
is the discretion of the prisoner* He has but to ask and have ; .
and by his mere wish, he changes this from a process flowing
j from the discretion of the court, into a process of absolute
right. Consider this wide and bold doctrine on the ground of
expediency* Would you summon any private individual from
the remotest part of the United States, to produce a paper on
the mere wish of the prisoner, without his defining the paper
and showing how it bore upon his defence? If you would, you
put the pursuits and the peace of every individual in the United
States at the mercy of the prisoner's caprice and resentments*
This arg;ument, from inconvenience, assumes an attitude of the
most awful and alarming importance, when you extend it to a
case like this before the court* A prisoner seldom has any cor-
dial aaiity for the government by which he is prosecuted for a
crime. The truth is, that he feels himself in a state of war with
that government; and the more desperate his case, the more
ardent will be his spirit of revenge. Would you expose the
offices of state to be ravaged at the mere pleasure of a prisoner,
who, if he feels that he must fall, would pant for nothing more
anxiously than ^^ to grace his fall and make his ruin glorious,''
by dragging down with him the bright and splendid edifice of
the government? Sir, if Aaron Burr has the right, at his mere
wish, to call one paper from the government, he has the same
right to call any other; and so, one after another, might divulge
Vol. r. S
138
and proclaim to the woiid« every document and secret of statCt
•however delicate our foreign relations might be, and however
ruinous the disclosure to the honour and prosperity of the
country. These, sir, are topics offered to the discretion of the
court.
It is certainly much to be wished, that a rule cOUld be de-
vised, which, while it should protect the rights of the prisoner^
should also protect the public offices from being wantonly and
unnecessarily violated. I think there is such a rule. It is this :
it is by requiring that the prisoner who calls for a paper, should
show that the paper applies to his case, and is requisite for his
defence. When he shall have done this, I hold that he will be
entitled to call for any paper. It will then rest with the presi-
dent of the tJnited States, the officer appointed by the people
to watch over the national safety, to say whether that safety
will be endangered by divulging the paper. Surely, sir, justice
to the prisoner requires no more than that he should possess
§uch papers as are material for his defence; and will not the
court require that he should show that materiality, before they
give way to his call? If they do it, if they say that it is enough
tor the prisoner to. wish a paper, to have it; they put them-
selves, as well as the chief magistrate of the Union, in danger
of becoming the mere ministers of the prisoner's whim, or ma-
lice and resentment; but by adopting the rule which I have
proposed, they would avoid these consequences and do all .that
justice requires^for the prisoner.
When the subject Was first mentioned, it was said, by one of
your honours, that it is usual to award the subpoena ^c^^ tecum
on the mere motion of the party, unsupported by any affidavit
as to the purpose for which the paper was required. This is
true, sir; such an affidavit is not generally required; but why i%
it not? Because the relevancy and materiality of the pap^ ar^
admitted by the adverse counsel, or are palpable from the na-
ture of the issue and of the paper required. The docket, for
example, presents the case of a writ of right, or an action of
ejectment; the name of the action, shows that the title of land
is in question. One of the parties moves for a subpona duces
tecum directed to the clerk of another court, and requiring him
to bring up a deed or a will which forms a link in the claim of
his^ide. The adverse counsel, if he be present, admits by his
silence the propriety of the motion; or if his silence has not
that effect, the nature of the issue and of the paper required^
show at once the relevancy and materiality of the latter.
Hence it has happened, that these motions are usually unsup-
ported by affidavit. But is this the case here? The relevancy and
materiality of the papers called for are not admitted by us:
2ite that relevancy and materiality palpable frotu the nature of
139
die points in issue and the papers required? Le,t us see if they
be. The two charges against the prisoner are, first of high
treason; and secondly, misdemeanor, in setting on foot an
expedition against the territories of a nation with whom we are
at peace. For the purpose of his defence, he says he wants a
letter from genend Wilkinson to the president; which letter
contains a declaration of his guilt; and also certain orders from
the department of war, which he says directed the burning and
destruction of himself, his people, and his property. Now, sir,
what possible tendency can either of these papers have to acquit
the prisoner of the treason or the misdemeanor? As to the or-
ders, which have been depicted as being so sanguinary and
despotic, I affirm, with the power of proof to support me, that
such orders never were given; though if it be true, that Aaron
Burr had placed himself in a state of war with his country;
was aiming a blow at the vitals of our government and liberty,
and that blow could be averted in norther way, I hold that his
destruction would have been a virtue; a great and glorious vir-
tue. Affairs, however had not reached that desperate crisis.
We have seen the orders, sir, and at a proper time will pro-
duce them* The very orders to lieutenant Shaw, which the pri-
soner has so often mentioned, as having been published in the
. Natchez gazette; those orders are not as he has described
d&em; they are simply orders to apprehend Aaron Burr, and
i/jt Bhall become necessary for that purpose^ to destroy his boats.
Those are the bloody orders which have been so often men-
tioned with looks of such tragic and mysterious import! Sup-
pose the orders were as barbarous as he has described them,
and that the emergency did not justify them, they prove the
administration wrong; but do they prove, or tend to prove,
Aaron Burr innocent? If the president were on his trial, for
having issued these orders, it would be necessary to hear the
orders themselves, in order to ascertain their merits or deme-
rits* But the question is not now as to the guilt or innocence
of the president: it is as to the guilt or innocence of Aanm
Burr on the charges of treason and misdemeanor; and whether
die president has acted right or wrong, does not and cannot af-
fect the question of Burr's guilt or innocence. The charges
against him are to be proved by witnesses on behalf of the
United States. If diese witnesses do not prove the charges,
diere is an end of the inquiry : but if they do, I ask whether it
be possible that his production of the president's orders, even in
his own terms, will remove that evidence of his guilt? Every •
judgment must answer No: and if so, the orders are clearly im-
naterial for his defence. But although the affidavit does not
attempt to show wherein these orders are material for the pri-
soner's defence, Mr. Martin has attempted to supply this omis-
i
14Q
sioD by his argument. It seems these orders were ao lawless,
that Burr had a right to resist them : and whatever he has done
has bceii in self-defence against these orders. It would be easy,
sir, to expose the flimsiness and fallacy of this pretext by a re-
ference to dates. The man cannot have a very chronological
head who can impute crimes throughout 1805, 1806, to orders
issued in the last month of the last year, or the beginning of
1807; but without stopping to annalyse more minutely this
strange anachronism, let us inquire into this doctrine of resist-
ance which Mr. Martin has advocated* I am not an advocate
for passive obedience and nonresistance. I do not think, as
Mr. Martin has asked, that a man becomes a god when he be-
comes a president. I think he does not become a god even by
becoming a king or an emperor. On the contrary, I think that
a man who, in a government like ours, even aspires to become
one, approaches, in point of character^ a class of beings very oppo^
site to gods. But ascending again to our president : he is bound
by his oath of office to take care that the laws shall be carried
into effect. By the particular act of congress which prescribes
the punishment of misdemeanor charged on the prisoner, the
president is authorised and required to call the naval and mi.
litary force of the country to defeat the enterprize. In the pre.
sent instance he has done so, and given orders for the apprehen-
sion of the offender: and we are told that Aaron Burr, instead
of submitting himself to the laws and justice of his countrvt
had a right to resist these orders; that Aaron Burr was to be
the judge, whether he should obey or not, orders proceeding
from the lawfully constituted authorities of his country; and
that if he thought them unlawful, he had a right to resist
them by force. If this be so, there is an end of government.
Every individual in the country, I presume, has, at least, the
same rights with Aaron Burr: and if he has this right of sub*
mitting to, or resisting the laws and officers of the government,
as he pleases, every body else has the same right: then where
is the use of our constitution, laws, or officers? We might as
well abolish them all, and return to a state of nature. But, sir,
neither Aaron Burr nor any other individual carries about him
this dispensing power. It is clear, that the very act of re-
sistance, of which Mr. Martin has spoken, was itself an act of
treason. Before the orders can be material for his defence, on
this ground, it must be determined that he had the right of re-
sistance; but, as I presume it to be impossible, that the court
can entertain this latter opinion, I conclude, that the orders in
question, cannot be relevant or material to his defence in this
light; and no other has been presented, or I believe can be
presented. Let us now consider the letter from general Wil-
kinson to the president, and inquire how that touches either of
141
the issues in which the prisoner is involved, and how the pro-
duction of the original letter is to operate to his benefit. If the
letter be material at all, a copy will answer every purpose* The
letter, I presume, from the use made of it by the president, is
a public document, and is lodged in the department of state.
The law of the United States, which establishes this office,^ con-,
tains the following clause :
*^ And be it further enacted, that the said secretary shall
cause a seal of office to be made for the said department of
such device as the president of the United States shall approve,
and all copies of records and papers in the said office, authenti-
cated under the said seal, shall be evidence equally as the ori-
ginal record or paper.'' 1 vol. Laws U. S. Chap. xiv. p. 5.
Hence a copy of this letter will answer every purpose
of the original ; and it will be no more competent to general
Wilkinson to deny the authenticated copy than the original.
But let us see of what use a copy of this letter can be to
him? We know nothing of this letter except from the message
of the president, to which the counsel on the other side have re-
ferred us ; and by this message it appears, that it was from this
letter, connected with others, that the president inferred the pri-
soner's guilt; a letter then, which according to the only account
we have of it, contributes to establish the prisoner's guilt, is re-
quired for the purpose of proving his innocence ! But this let-
ter we learn, not from the affidavit, but from argument, is re*
quired for the purpose of confronting general Wilkinson if he
should trip in his evidence. At present then, there is confes-
sedly no issue to which this letter applies ; but one may possi-
bly occur by general Wilkinson's departing in his narrative from
the statements of his letter. Now, sir, suppose a man should
move you for a subpoena duc^s tecum in a civil question, stating,
indeed, that there was at present no suit to which the paper
could apply, but that he apprehended one might be brought,
in which it might be material, would his motion be granted f
Now where is the difference between such a motion and the
very remote probability that general Wilkinson will produce an
occasion for this letter, in contradicting by his parol testimony
the statement of his letter? But let us press this point a little fur-
ther. No one pretends to know any thing of the details of this
letter; all we know of it is derived from the president's mes-
sage ; and from that all we learn of it is its general character,
that it goes to prove the guilt of Burr. Now, in order to pro-
duce any collision between this letter and Wilkinson's parol
evidence, the letter must have an opposite character ; that is, it
must go to show the innocence of Burr. If Wilkinson conti-
nues to avow the guilt of Burr, there will be no contradiction
between his testimony and his letter, and consequently there
can be no confrontation between them, beneficial to the prison-
142
e'r; there eap be « confrontation in no other event, than th^t of
his deposing to Burr's innocence. The result of the argument
is, that Burr, apprehensive that the evidence of genenil WU«
kinson may be favourable to him, wishes the general's letter for
the purpose of destroying that evidence, and proving his own
guilt. Again, sir. I have never seen or heard of an instance of
this process being required to bring forward any paper, but
where such a paper was in its nature evidence; for which
either party had an equal right to call, and to use it when pro-
duced. But it is obvious that in this case and in the present state
of things, we could not use the letter of general Wilkinson as
evidence; although the opposite party should obtain his subpoena
duces tecum for this paper, and would seem thereby to have
made it evidence, and introduced it into the cause. Yet after it
comes we cannot use it: hence there is no reciprocity in it.
The paper is not, at present, evidence, and therefore is not
within the principle on which this process is awarded. One
more remark on this letter, and I have done with it. I
am no more an advocate for the needless multiplication
of state secrets, than the gentleman who has preceded me.
It looks too much like the mysteries of monarchy; and I hate
monarchy with all its mysteries, as I do the mysterious move-
ments of those who are lovers of monarchy. Yet it is obvious,
that there may be cases in which the very safety of the state
may depend on concealing the views and operations of the go^
vemment. I will instance in this very letter. I do not know
what it contains ; but it is from the general who commands on
the Spanish frontier. That the state of our aflairs was and is
with Spain, not the most amicable, is well understood. We
know that our affairs in that quarter wear^ even at this time,
the most lowering aspect. Suppose this letter should contain
a scheme of war, a project of attack, would it be proper to di-
vulge and proclaim it even to Spsun herself? If the letter con»
tains such a thing, I have no doubt that the president ought
and will conceal at least so much of it. This, however, will be
a question with him, when the paper shall be called for ; and a
question which he alone is competent to decide.
.From what has been said, I take it to be clear, that the rele-
vancy and materiality of these papers for the prisoner's defence,
arc not palpable, by comparing the nature of the papers with the
nature of the issues ; and bdng neither self-evident nor admit-
ted, I hold that the party is bound to show, at least by his aflBi-
davit, wherein they are relevant and material This he has not
pretended to do, in the affidavit offered to the court; for in that^
he has merely stated, in terms the most loose and vague, that he
believes these papers may be material for his defence. Sir, he
Plight take the same oath as to any paper in the offices of state^
.without the possibility of proving him forsworn ; for he swears
143
merely to a conjeccure, and whether he entertains it or not, can
never be decisively known to any one but himself. Will you lay
open the public offices /to be ransacked by conjectural affidavits?
Will you adopt a precedent which will put it in the power of
the enemies of the government at any time, and without the ha*
zard of punishment, to explore your offices with the worst of
views, and harass the officers themselves at their discretion? Sir^
I wish the prisoner to have a fair trial* I wish him to possess
every atom of evidence which can contribute to his acquittal;
but these papers appear to me not calculated to touch the issue,
and still less calculated do the prisoner any good. If he thinks
otherwise, where can be the difficulty of his showing, by an affi-
davit at least, some probability of their doing him service* If he
knows the nature of these orders and that letter so well as to
have ascertained to his own satisfaction, that they may do him
service, where can be the harm of his setting out in his affidavit
the character of the papers, and showing how they may be
brought to bear upon his case ? When he shall have done so, the
court will have something for its discretion to act upon; at pre*
sent they have nothing but the prispner's faint conjecture, and
die discretion would appear to me not very sound which would
be determined by a consideration like that.
I can see but one possible objection to the particular affidavit
which I require, which is, that the prisoner would thereby un-
mask his defence. But in the case of the United States against
Smithy a particular affidavit was required by judge Patterson,
setting out what it was expected to prove by the witnesses; and
ahhough it was objected in that case, that by demanding such
an affidavit, he compelled the accused to unmask his defence, he
nevertheless demanded the affidavit. And in that case, as in this,
ahhough the materiality of the evidence wa^ supported by some
of the ablest advocates on the continent, the court determined
agadnst its materiality, and the cause went on without it: but in
the present instance, an objection as to unmasking the defence
would be an objection merely of form, because the gendemen
have by their arguments, in fact, taken off the mask, and stated
the maoner in which they expect this evidence to apply. We
have examined their expectations, and I hope found them
baseless.
I conclude, sir, that this is an application to the discretion of
the court; that justice to the prisoner required only that he
should have all papers from the officers of state which he shall
show to be material and relevant to his defence; that he has not
Aofwn them to be so in this case; and that, therefore, the pto*
cess should be withheld undl he does show them to be so. I
know of no other rule which, while it will protect the rights of
the prisonei^ will also save the offices from needless, wanton and
wicked violations.
144
I cannot take my seat, sir, without expressing my deep and
sincere sorrow at the policy which the gentlemen in the defiance
have thought it necessary to adopt. As to Mr. Martin, I should
have been willing to impute this fervid language to the sym-
pathies and resentments of that friendship which he has taken
such frequent occasions to express for the prisoner, his honouro"
able 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 ngt follow-
ed 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 com-
mit? Whether they have not seized with avidity evcrj' subse-
quent occasion, and on every mere question of abstract law be-
fore the court, flew off at a tangent from the subject, to launch
into declamations against the government? Exhibiting the pri-
soner 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 dif-
ferent were the purposes of his soul from those of a Russell or a
Sidney! I beg to know what gendemen can intend, expect, or
hope, from these perpetual philippics against the government?
Do they flatter themselves that this court feel polidcal preju-
dices which will supply the place of argument and innocence on
the part of the prisoner? Their conduct amounts to an insinua-
tion 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 beani
of their judgment will remain steady, although the earth itself
should shake under the concussion of prejudice. Or is it on the by-
standers that the gentlemen expect to make a favourable impres-
sion ? 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 gendemen
arraign the administration, let them clear the skirts of their cli-
ent. Let them prove his innocence; let them prove that he has
not covered himself with the clouds of mystery and just suspi-
cion; let them prove that he has been all along erect and fair, in
open day, and that these charges against him are totally ground-
less and false. That will be the mo^t 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
145
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 disre-
spectful 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 re-
viled to the federal judiciary? Hearing the judiciary told, that
the administration are ^^ blood houndsy hunting this man with a
keen and savage thirst for blood; that they now suppose they have
hunted him into their toils and have lum safe." Sir, no man,
fiireigner or citizen, who hears this language addressed to the
court, and received with all the complacency at least which si-
knce can imply, can make any inferences from it very honour-
able 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 Mahome-
tan 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 in-
nocent, in the name of God let him go; but while we are on thb
question of his guilt or innocence, let us not suffer our attention
anid judgment to be diverted and distracted by the introduction
of other subjects foreign to the inquiry.
Mr. WiGKHAM appealed to the court if the counsel for colonel
Burr had been the first who began the attack; and wished the
gentleman to follow his own wise maxims. He observed, that
Mr. Wirt had met the question fairly, and concedeff several
points which had been contended for by his associates. He ad-
mitted the granting a writ of ^^ subpoena duces tecurrC^ to be a
matter of discretion; but insisted, that the opinion of the party
applying for it, that the papers might be material, was sufficient.
He said that the question in the case of the United States v.
Smith, arose on a motion for a continuance.
Mr. Wirt corrected his statement; observing, that the motioa
was for a continuance and for an attachment against the witnes-
ses at the same time, and both questions were argued collectively.
[The following is but a brief and imperfect sketch of the very
ingenious apd able argument of Mr. Wickham, in reply to the
▼cry eloquent and impressive speech of Mr. Wirt.]
Mr. Wickham agreed that such was the case; but contended
that the special affidavit was required, because there was a mo-
tion for a continuance; and that on a motion of this kind, an
affidavit need not be speciaL He said, that the reason given by
ju4ge Patterson^ for requiring a sp^oistl stat^mj^nt of what wt»
Vol. h T
146
intended to be proved by Messrs. Madison and ^rnith, was, that
if they had been present, their evidence (if it only went to prove
that the president had sanctioned the expedition) would have
been of no consequence; since the president's sanctioning the
expedition could not have rendered it lawful.
We are told, said Mr. Wickham, that Wilkinson's letter is
bot important! Yet he is the pivot on which this prosecution
turns. Without his evidence they could not progress With the
trial. When he arrives, it will be all important to us to prove
the falsehood of his testimony, by proving that he has contra-
dicted himself. His credibility is the point in question; and
surely general Wilkinson is not so immaculate as the govern-
ment. We may allude to his tyrannical and oppressive conduct
at New-Orleans; we may demonstrate that his feelings, his in-
terests, his character, require him to secure the conviction of
colonel Burr. Under these circumstances, his veracity must be
very doubtful, especially if we can show that he has made three
or four different and inconsistent representations of the transac-
tions charged to be treasonable. His letter therefore ought to be
produced.
As to the inconvenience to which the public offices may be .
subjected, it ought not to be regarded; for those offices were
made for the good of the people, not for the good of the officers.
All that colonel Burr is obliged to show, is probable cause to
believe that Wilkinson's letter may be material, though he can-
not swear that it is material. Mr. Wirt says, he is not an advo-
cate for state secrets; but he is in this case without knowing it.
He has s^id too, that the acquittal of colonel Burr will be a sa-
tire on the government. I am sorry that the gentleman has
made this confession, that the character of the government de-
pends on the guilt of colonel Burr. If I believed him to be cor-
rect, I could easily explain, from that circumstance, the anxiety'
manifested to convict him, and the prejudices which have been
excited against him. But I will not believe that this is the case,
but will tell the gentleman that we think Burr may be acquitted,
and yet the government may have pure intentions.
The writ of subpoena duces tecum ought to be issued, and if
there be any state secrets to prevent the production of the letter^
the president should allege it in his return; for at present, we
cannot know that any such secrets exist. And the court, when
his return is before them, can judge of the cause assigned. But
/ have too good an opinion of the president^ to think he rvouid
withhold the letter.
The gentlemen on the other side have said, ,that we do not
wish to unma^ our defence; but in withholding the papers
which we demand, they show that they have on the mask, and
we wish the court to aid us in making them pull it off.
147
We cont^d that no affidavit on the part of coloftel Burr is
necessary* Wilkinson's affidavit, already published, together
with the president's communication to congress, prove that the
letter in question must be material. It may show, that the trea«
sonable transactions attributed to colonel Burr within the limits
of this state, never existed; for as to Blannerhasset's island, the
gendemen in the prosecution know^ there was no such thing as a
military force on that island. '
[Here Mr« Hay interrupted him, and said, that it was ex-
tremely indelicate and improper to accuse them of voluntarily
supporting a cause which they knew to be unjust* He solemnly
denied the truth of the charge against him and the gentlemen
who assisted him, and declared that they could prove the actual
existence of an armed assemblage of men on Blannerhasset's
island, under the command of Aaron Burr*]
Mr* Wickham acknowledged that he had gone too far in the
expression he had used, and ought not to have uttered what he
had said concerning the counsel for the United States, and de-
clared that he meant nothing personal against them* He pro-
ceeded to argue the question concerning the production of the
president's orders* He denied, as Mr. Martin ha4 done before,
the legality of those orders, and contended that colonel Burr had
a right to resist them* Mr* Burr was brought here — ^how he
was brought we will not say; but we will say, that resistance to
the militia ordered out against him, was resistance to tyranny
and despotism*"
Mr. Wickham returned to the question relative to Wilkinson^
letter* We are told, he said, that the letter is in the department
of state, and a copy will be sufficient* If the letter was written
to the president of the United States, and not to the secretary
of any department, we may presume that the president has it in
his own possession* But if a copy were here, Wilkinson might
deny that he ever wrote the letter; and although the copy might
be fedthful, it could not prove that the letter was not a forgery*
The original, therefore, will alone answer our purpose.
Mr. Wirt lays down the strange principle, that Wilkinson's
letter is not evidence, because it could make only in favour of one
side; but that it ought to make in favour of the other side also.
Give the gentleman his premises, and his conclusion follows.
But his premises are false; for the doctrine cannot be sound,
that nothing is evidence but that which makes in favour of both
sides of a question. Such reciprocal effect is not essential to the
admissibility of evidence*
When Mr* Wickham had finished, the Chief Justice observ-
edy that although many observations (in the course of the several
discussions which had taken place) had been made by the gende-
148
«
men of the bar, in the heat of debate, of which the court did
not approve, yet the court had hitherto avoided interfering; but
' as a pointed appeal had been made to them on this day, (allud-
ing to the speech of Mr. Wirt), and they had been called upon to
support their own dignity, by preventing the government froni»
being abused, the court thought it proper to declare that the
gentlemen on both sides had acted improperly in the style and
spirit of their remarks ; that they had been to blame in endea-
vouring to excite the prejudices of the people; and had repeat-
edly accused each other of doing what they forget they have
done themselves. The court therefore expressed a wish that the
counsel for the United States and for colonel Burr, would con-
fine themselves on every occasion to the point really before the
court; that their own good sense and regard for their characters
required them to follow such a course; and it was hoped that they
would not hereafter deviate from it.
The court then adjourned until Thursday morning, eleven
o^clock.
Thursday, June 11th, 1807.
The court met according to adjournment.
Mr. Hay Mdressed the court to this effect: I am happy the
court has recommended to the counsel on both ^des to adhere
more strictly to the subjects in debate. Their admonition will
be followed by me, and I wish they would cause it to be followed
by others. I regret indeed that it was not made somewhat sooner.
Perhaps if it had, we might have been spared the pain of hearing
many remarks as unauthorised in point of principle and fact as
they are irrelevant; remarks which, as a public prosecutor, as a
friend of my country, and a supporter of its constitution, govern-
ment and laws, I heard with surprise and regret, and with a senti-
ment which I will not name. I will not imitate this example of
my opponents, but endeavour to confine my obser\'ations exclu-
sively to the question now in discussion. I am really doubtful
however, whether I should not be departing in some degree from
this declaration in noticing one argument used by the gentleman
who last spoke, (Mr. Wickham). Language so strange, a charge
so unjust, I hope, however, I may be permitted to repel.
The gentleman, with a tone of voice calculated to excite irrita*
tion, and intended for the multitude, charged us with conceding
point after point! He insinuates that we have been catching at
every thing to bear down the accused ; that we inconsiderately-
con tend for any doctrine, however absurd, which might have the
effect of injuring him, and afterwards are obliged to abandon the
ground we have too precipitately taken. I will ask, if any occur-
rence has shown that we are actuated by this spirit? No* sir.
The gentleman knows the charge is unjust. But even if it had
149
been true, that we had made concessions, it ought to have been
considered as a proof of our candour and liberality, in giving up
ground as soon as we thought it untenable, and not as a matter
of reproach. But, sir, it is not correct. We have conceded no
point that we ever maintained. We admitted that the president
might be subpoenaed as a witness, because we always thought so.
We never clothed him with those attributes of dignity which
gendemen have accused us of ascribing to him. We know the
president is but a man, though among the first of men; he is but
a citizen, though the first of citizens. The president too knows,
that, like the great Cato, he ought to pay obedience to the ^ws
of his country, and obey the commands of its courts of justice.
All this we have uniformly admitted; but have denied, and
deny now, that a subpoena duces tecum ought to be issued to the
president.
Mr. Hay moreover observed, that the objection made the day
before to the prisoner's right to make the motion in the present
st:^ of the prosecution was not waived ; and that in opposing
the motion, he was influenced solely by a desire to keep the ac*
cused and his counsel within legal limits; because he had en-
deavoured to procure for them the very evidence they requested.
He proceeded to argue the question upon its merits.
It having been admitted, that this was a motion addressed
only to the discretion of the court, it followed, that it ought to
be granted only when substantial justice required it; that it is
to be granted to a person accused, because his defence when
properly conducted requires it. But the accused himself in this
case does not say these papers are material in his defence. His
affidavit is drawn with great caution. He only says that the pa-
pers may be material. This is nothing more than the mere ex-
pression of an opinion, which may be correct or incorrect. Mr.
Hay asked the counsel for colonel Burr, and more especially
Mr. Martin, if in the course of their long experience they had
ever known such an affidavit? Its language is unprecedented,
designedly vague, and equivocal. The letter may be mate-
rial! This may depend upon the use intended to be made of
it. The object of demanding it may be to give his counsel an
opportunity to speak as they have done before; to charge the
government with illegal and barbarous persecution, and with
endeavouring to crush and overwhelm the accused. All this
may be said, and no doubt will be said, and may be a very con-
siderable help to colonel Burr. *
The affidavit is truly farcical; because from any thing ex-
pressed in it, the letter of general Wilkinson may^ or may not
be material. Suppose these words ^^ or may pot" had been in-
serted, would it then have been regarded? The absurdity would
then have been too evident* And is it not the sa^ie thing in
150
substance as it now stands? If such an affidavit as this is suffi-
cient, and mere curiosity is to be indulged, the president might
be required to produce all our correspondence with the Spa-
niards about our disputed territories ; in short, all the papers of
government would be laid open to the inspection of Burr. But
the court ought not to issue process on speculation only; it
ought not to subject the public officers to inconvenience, and
the national archives to derangement, unless in a case where
justice plainly requires it*
But the affidavit would not have been sufficient if he had
said, what he dared not to say, that the papers are material. It
should appear how they are material. The nature of the evi-
dence ought to be specially stated, that the court may judge of
it. Will the court rely on the judgment of the party in this
case? Misled as he is by his feelings, his judgment ought not
to be tru3ted.
' Even in ordinary cases the court will inquire as to the con-
tents of papers on a motion for a continuance. Which doctrine
is recognised in 2 Bl. Rep. 514. The same thing was done in
the case of the United States v. Smith and Ogden, in which
almost as much clamour was excited as in this. There, the
evidence of Mr. Madison and others was sworn to be material;
but the court required a specification of its substance, and de-
cided that it was not admissible. The papers required in the
present case would probably be so decided, if they were here.
I have a knowledge of the orders, and think so with respect
to them. The letter I know nothing about. Mr. Wickham's
argument, that the court did right in Smith and Ogden's case,
because it was prima facie presumable that the evidence would
not be admissible, turns against him here ; for, certainly, it is
prima facie presumable that general Wilkinson's letter cannot
make in Burr's favour, since the orders to intercept him on his
passage to the seat of his empire were founded on the infor-
mation received from that letter.
The conduct of the gentlemen proves, that they feel us to be
right. Their involuntary conviction of this is evinced by their
endeavouring to supply the defect in the affidavit, and to spe-
cify the purposes for which the papers are wanted. The accused
has liot ventured to swear that they are material, but they as-
sert it, and attempt to show it by argument.
First, as to the letter. Mr. Wickham says, that Wilkinson
has written othei^ letters to other persons differing from this.
We deny the fact. If it be true, why is it not sworn to? But
suppose general Wilkinson had done so, what is the inference ?
Is his evidence before the jury not to be regarded? It is strange
indeed that the gentlemen say they have never seen this letter^
and only guess at its contents, yet say, that letters containing
ISI
different statements have been written! Surely such efforts as
these are deplorable; for, whether the assertion be true or not,
it is not known to be true.
They next contend that the orders are material because they
were illegal, arbitrary, unconstitutional, oppressive and unjust;
that Burr's acts were merely acts of self-defence against t3^ranny
tod usurpation, and^ of course, were justifiable.
Many strange positions have been laid down, but this is
monstrous. Mr. Martin will excuse me for saying, that I ex«
pected sounder doctrine from his age and experience. These
principles were not learnt by him in Maryland, nor are they the
doctrines of this place. Considering that he has come all the
way from Maryland to enlighten us of the Virginia bar by his
great talents and erudition, I hoped he would not have ad«
vanced a doctrine which would have been abhorred even in the
most turbulent period of the French revolution, by the jaco-
bins of 1794! It is the duty of the president to call out the mi-
litia to suppress combinations against the laws, (see L. U. S*
vol. 3. page 189.) and particularly to prevent 'enterprizes
against foreign nations in amity with the United States ; (ib.
page 92.) Yet it is contended, that his orders, for such pur-
poses are illegal, and may be resisted by force of arms! I will
not say it is treason to advance, or a misdemeanor to believe
such doctrines ; but deplorable is the cause which depends on
such means for support*. Suppose, however, the president was
misled, and that Mr. Burr was peaceably engaged in the pro-
ject of setding his Washita lands; will it be contended, that he
had a right to resist the president's orders to stop him? I say
this would be treason. If congress were to pass an arbitrary or
oppressive act, but not unconstitutional, (such as the excise law,
for example) it has been decided, that an armed combination to
resist it would be treason. Of course, resistance to the execu-
tion of the statute, under which the president was acting, would
be treason, ^he president receives information, that a law of
the United States is about to be violated; he issues orders to
enforce the law in the way prescribed by itself. Is not opposi-
tion by violence treason? Will the gentlemen, after seriously
reflecting, still contend that Burr had a right to resist? This
doctrine is not the growth of this country, nor is it the doctrine
of the real friends of human liberty : but this is a new-bom
zeal of some of the gentlemen, in defence of the rights of man.
No wonder, therefore, they are not so well acquainted with
the subject as those who have always contended, and always
will contend, for them. But admit their inference correct; that
Burr had a right to resist an illegal order; (which I utterly
deny) will the court is3ue a subpoena founded on that suppo-
sition? Will you insult the executive by saying, that its orders
were illegal, and ought on that account to be produced as evi-
152
deace? especially after you have younelf said, that there was
probable cause for committing colonel Burr on the charge of a
misdemeanor i
Mr. Hay proceeded to argue another point, that the court
ought not only to be satisfied that the letter was material, but
that it was a public paper* He said, if it was a public document,
the right to a copy of it was admitted, unless there should be
aomethino; in it, which, in the opinion of ^e president, the pub-
lic good forbade to be disclosed. But he denied that the letter
was a public paper merely because addressed to the president of
the United States. It had been observed, that the president had
made it so by referring to it in his message to congress. If this
argument is correct, only so much is public as is referred to.^
^Here Mr. Hay read a part of the president's commimication to
congress.] He contended, that there might have been a great deal
more in that letter than what related to the discovery of Burr's
plans; that there might have been information of a private na«
ture, accounts of the disposition of the people in the western
country towards the government, and general Wilkinson's
thoughts on many important subjects. Will the court say, that
all these things shall be made known? If a copy was received,
such parts only could be extracted as ought to be made public;
but if the original should be granted, the whole would be seen
and inspected by the court, by the counsel on both sides, and by
the public. He said, that the court ought also to be satisfied, that
the president has the custody of this letter. The subpoena ought
to be addressed to the person who has it in his custody. It is
said to be a public document: if so, it is in the office of the secre*
tary of state. See L. U. S. 1 vol. p. 42, 43.
It is absurd then, as well as indecorous, to summon the presi-
sident of the United States to bring a paper which he has not.
The same observations applied to the copies of orders. The ori-
ginal orders were lodged with the secretary of state, and copies
were sent by him to the secretaries of war, and of the navy.
To the secretavy of state, therefore, the subpoena ought to be is-
sued, if at all.
The court ought also to be satisfied that the party could not
obtain, without a motion, the copies of the orders now required.
The accused ought therefore to show that he has demanded co-
pies ; but he has not done so. He asked indeed, a copy from the
secretary of the navy; and because he refused, process is to be
issued against the president of the United States, though he
was never applied to !
The Chi«f Justice asked Mr. Hay, what was the legal way
of getting the paper which the secretary of the navy refused ^
He answered, ^^ by application to the secretary of state for copies.''
Mr. Hay made many other observations which the limits of
this sketch wrll not permit us to ixiseru In opposition to the ar-r
153
gument that general. Wilkinson might deny any recoUection of
his letter if a copy only was produced, he said it was mere pre-
sumption, a preposterous supposition ; that it would be immate-
rial whether he deified it or not, since the copy is evidence by the
act of ccMigress. He here vindicated general Wilkinson from the
attacks which were wanto^y made upon him; saying, it was the
policy of colonel Burr andhis counsel to endeavour to tear down
J his character before he arrived, and that every principle of pro-
priety was violated by such conduct. He fwked, if it was right
j that a man, high in die confidence of government and of hi^
country, should be thus attacked? and declared he should be
sorry for the character of his fellow citizens, if the abuse lavished
on him by the accused should have the slightest effect on the
event of the trial.
Mr. Mac Rae said it wasplainly to be inferred from the pre-
sident's message to congress, that the letter in question was con-
fidential. It appears, that the president furnished extracts of some
of the letters he received relative to colonel Burr. His not fur-
nishing congress with a copy of this or any other part of it, is.
presumptive evidence that it ought not to be made public.
Mr. Randolph. — May it please your honours: To the ob-
servations I shall make, I have no preface nor apology. I beg
leave to appropriate to argument the time which falls to my lot
in the discussion of the present moUon. I did not believe sir, that
to-day there would have been a resurrecdon of the dicussion
which took pli^ce yesterday; but since the attorney on the part
of the prosecution has thought proper to introduce it, I shall not
shrink nx>m it, but meet it. I make no appeal to the multitude;
it is not my desire to excite the sympathy, or rouse improperly
the feeCngs of the bystanders. I shall simply state the proposi-
tion. Why is colonel Burr not entitled to ask the court to is-
sue a subpcena for the production of those papers? Is colonel
Burr not now before the court ? Is he not here upon his recog«
nisance? Has he not been here a considerable time on the ten-
terhook of expectation, that when general Wilkinson, that great
accomplisher of all things, arrived, an indictment would be pre-
ferred against him ? But has he, on that account, resigned the
rights of defence ? Is he to be tongue-tied and hand-ded, without
the privilege of defending himself? He cannot be properly de-
fended without the production of these papers, and on that ac-
count he now demands the interposition of the court. But, say
the counsel for the prosecution, he is not entitled to this privi-
lege until an indictment is preferred, and the grand jury find a
true bill. ^Why did we not hear this objection ,when the grand
jury were empaneled? It was proved yesterday, by several la#
authorities; it was proved, sir, by invariable practice ; and it wa^
Vot. I. U
15*
proved, by a wish of all out* souls, duit the accused ought to haver
this privilege from the very cottunencefkient of the prosecudoii.^
Wherefore then sir, are we^to be vexed and perplexed again with
this ofcgection ? Wherefore do they say it is premature on the
part of my client? I see a corps of worthies around me, to jus-
tify what I say. Every man, I assert, liho appears on the grounds-
of as^recognisance, stands in the same conaition as one on his
triaL Are you to shut a man out from evidence, because he is-
only Recused, because his- life can only be forfeited I There is a
harshness in this ; there is a severity in this sentiment, which,
however agreeable it may be to the pfincif^es of law, I have to
thank God, has never been my practice. The principles to which-
I have been accustomed have always agreed widi trudi, and the
sacred books of the scripture. No bill is yet found; and I trust
none ever ^i|9U. The amendment^to the colistitution, they say,
does not apply to the present case, but to a triaL We do not
mean to force this point, although ample audiority might be pro-
duced in support of it. You, sir, will certainly do what is right
in the present motion; this we do not mean to doubt : but youi
will give me leave to ask, what our situation would be, in what
a deplorable dilemma we should be placed, if,* at the instant the
attorney was pressing us with his testimony, we had to supplicate
your honours to grant us the purport of the motion now in ques-
tion ? and if the trial could not be postponed, (which in all proba-
bility it would not) we mueft go to a final decision without it. In
that case, even were the sun of innocence ready to shed his
beams upon us, we would be cast into utter darkness. No, sir,
such can never be the opinion of this court; justice must be
changed; bnv must be changed; nature must be changed, before
such sentiments caii be heard. I will not trouble you much farther
with discussing the propriety of our application^ feeling the con*
iidence with which I am certain it is regarded by thi^ court; bot
I will come directly to the consideration of whsrt are the reai
points in discussion.
This is not whether a president cm be summoned: that par^
k happily conceded; and I rejoice that we mistook in the com-
mencement of the argument, the sentiments of the attorney on
the part df the prosecution on this point. I rejoice, I say, that I
did mistake.him; because, from that very concession, I will draw
every corollary that may be necessary for establishing the great
point for which we contend. By admitting that the president of
the'United States can be summoned, a great canon of evidence
is admitted. I must, however, be excused by the worthy gentle-
men, if I tell them they are a litde inconsistent. In throwing ob-
stacles in our wa- against obtaining the papers for which we have
moved the court to issue a subpoena,, they imitate that bad ex-
ample, which they have imputed to us. What is the nature of
ISS
ftc evidence we do ask i We ask for that sort of evidence which
may enable us to confront James Wilkinson with himselfL There
is not an idea beyond this. We wish to show, that James Wil-
kinson, in his oflScial capacity, as commander pf the army of the
United States at New-Orleans, is not the same with James WiU
kmson the correi$))ondent of the president. We wM\ to prove,
. that James Wilkinson has varied from himself, and that he has
varied in most essential points in the greatest degree. Mr. Hay
teUs us, that every thing depends upon diis same James Wil-
kinson; that he is in reality the Alpha and Omega of the present
prosecutiotk He is, in short, to support by his deposition the %ing»
song and the ballads of treason^ and conspiracy, which we have
heard delivered from one extremity of the continent to the other*
The funeral pile of the prosecution is 'already prepared by the
hands of the public attorney, and nothing is wanting to kindb the
fatal blaze but the torch of James Wilkinson. He, k ta exhibit
himself in a most conspicuous point of view in the tragedy which
is fancied 'will take place* He, JamestWilkinsoo, is to ofliciate as
the high priest of diis human satrifice^
Of James Wilkinson we are not afraid, in whatever shape he
nay be produced; in whatever ferm he may appear before this
court. We are^only afraid oi those effects which desperation may
produce in his mind. Desperation, may it please -the court, is a
word of great fitness in the present case. General Wilkinson we
beheld first acting as a conspirator to issnare others, afterwards
as a patriot to betray others frem motives of patriotism. What
must be ihe embarrassment of tMs man when the awful catas-
trophe arrives, that he must either substantiate his own inno*
oence by the conviction of another, or be himself regarded as a
tndter ii»d conspirator, in tiie event of the acquittal of the
accused.
Is it not to be suiqsosed, that f;|lheral Wilkinson will do many
things rather tiiao disappoint the wonder-seizing appetite of Ame*
^rica, which for months together he has been gratifying by
^ most miraculous actions ! If I am not anistakeh I have seen it
in some of the public prmts that he is no longer the vice-gerent
of the Upper Louisiana; and if I may be indulged with the slight-
est power of prophecy, I may predict, that this same general
Wi&inson, who has been astonishing the citizens of New-Or-
1&U06 with plots and conspiracies, will, before maiiy weeks, only
figmne in the capacity of a private citizen. I shall not say that
generri Wilkinson would commit peijury; let me not be under-
stood as making such an assertion; but if I know human nature;
if I understand the feeling of the human breast; if I have the
lightest biowledge of those prinoii^es which govern the mind
of man; I may be aOowed to affirm, that every feeling would be
asleep in his breast if he did not use every exertion in his power
156.
tot the conviction of colonel Burr. Upon the conviction of cold*
nd Burr, upon the guilt I say of colonel Biirr, depertds the inno-»^
cence of general Wilkinson. If colonel Burr be proved guilty^
then indeed general Wilkinson may stand acquitted with many
of his countrymen; but if colonel Burr be ilot found guilty, the
character, the reputatipn, in short, every thin^hat deserves the
name of iiitegrity, wiU be gone for ever from general Wilkinson*
Sir, in that event, I say, in the event of Burr's acquittal, as sure
as man is than, storms and tempests will cover the western glory
of general Wilkinson, and gather darkness all around him. We
have therefore the justest cause to scrutinize this gentleman's
deposition. We have the strongest reasons to examine this gen-
tleman's character, and to trace him in his most confidential
walks. From his letters we have already had some glimpse of
him; but I should wish, as I have;said, to have him confronted
with himself; I mean, to have his correspondence with the presi-
dent of the United States opposed to whatever statement he
may deliver here. I shall therefore suppose, by way of illustra-
tion, that the president were here, and certain questions were put
to him. The president certainly could not dispense with answer*
ing these questions* Much as I respect the illustrious character
of the president of the United States, yet I should begin to ima«
gine that the sheet-anchor of our government was gone, if the
president could be excused more than any other individual before
this court, from answering any questions which might be put to
him. It is really most extraordinary, that these gentlemen should
tell us, after arriving in the porch of the temple, that we shall not
go into the sanctum sanctorum; that we are at liberty to know
part of the correspondence, which has taken place between gene-
ral Wilkinson and the president of the United States, but not
the whole^
The gentleman for the prosecution has to-day, sir, given us an
eulogium upon himself and his associate friends. He has pic-
tured to us the zeal and the anxiety he has had for the produc-
tion of those papers, and has assm-ed us that he has already ta-
ken means for having them here. I thank the gendeman for his
exertions, but at the same time I must beg leave to remarjc the
equal zeal with which he and his friends combat our applicatian.
If Mr. Burr were now asking you for the^e papers, without
showing any probable cause that they were material, this indeed
would be a wanton, womanish, feverish curiosity; but it is no
such curiosity: we have shown, in the fullest manner^ that they-
are material and of the first importance. It is said, that by their
production general Wilkinson, that huge Adas, on whose mighty
shoulders the American world is sustained, is wished to be re-
presented as a man in whom confidence ought not to be placed.
But, I say, if the production of these papers were to effect the
157
annihilation of general Wilkinson, that I hope and believe no
other visible chasm in the creation would be ' produced, but in
that portion of space at present occupied by his material body*
How can the rank and safety of general Wilkinson be concerned
in the production of these papers? General Wilkinson is only an
organ in the hands of government. As to his glory, I believe
its meridian splendor is set, and that he will be no longer wor-
shipped as the political Messiah of America; but even if he were
crucified, I trust it would make no sera in our time. Suspicion
at all events belongs to him. He stands in that character which is
always regarded as odious; that of an approver. He has confes-
sed himself guilty of the most heinous of crimes, for the purpose
of entrapping others; of rendering others equally in£Eimous with
himself.
We are told, that our motion goes to reveal state secrets;
that confidential characters are to be brought into view! State
secrets! The very name strikes me with horror! I have heard
one of the gentlemen concerned, renounce the idea, and I shall
not again be the means of recalling the principle. Sir, I will
not say that there ought not to be a limitation with respect to
the production of state papers. But in what character is the
name of general Wilkinson inscribed in the roll of fame, to en«
ude his actions to be concealed? Is the safety of this country
.to be endangered by calling upon him as a witness, who is
known and declared to be one of the arch-witnesses of this
prosecution? Is the national safety to be endangered by thisf
A nation stand upon this? a nation which ought only to look
to the Almighty for its rule! Shall the people of this countrj;;
be considered as in danger, though this motion be granted^
Should they be in danger, though general Wilkinson were
given up to be buffeted? I should be very unwilling indeed^
diat a single name should be unnecessarily exposed; but are
one man's fortune, character and life to be brought into jeo-
pardy in order to conceal the names of others? Is this to be
the shield under which general Wilkinson is to be screened? Is
the executive bureau to be made a sanctuary of scandal, to pro-
tect the fame of general Wilkinson, and when opened at some
future period, to display to the citizens of this country, a tale
perhaps as horrid as many of those which the red book of
France has unveiled? The revealing of confidential secrets has
also been objected to. Two cases of this nature were yesterday
ably detailed by the counsel associated with me. The case of
lord Barrington, and the surgeon, whose evidence was given
on the trial of the dutchess of Kingston ; but, sir, I have seen
within the walls of this house, a case still more affecting; a case
in which, if ever confidential secrecy was to be pleaded, it
158 ^
ought then to have been sustained* This, sir, was the case of a
young lad of sixteen years of age, who was arraigned at lUs
bar for a criminal offence. His infant mind, and the feelings of
his heart, had been unburthened to his father alone. He, led
by patemid affection, was anxiously attending at the side of the
lad, at the issue of the trial. The attorney for the state, after
fruidessly examining all the evidence for die prosecution, and
finding no testimony sufficient to sustain it, at length darted his
keen and penetrating eye upon the distressed parent. He im-
mediately made an application to the court to compel him to
give evidence against his son. The court were greatly affected ;
tears streamed from their eyes. I defended him. I do not
know that I used any reasoning on the subject; but the close
ties of father and son, and the nature of confidential secrecy,
were in vain pleaded. The court determined that he was a
competent witness, and must be sworn to testify; and wer«
about to compel the father to give testimony against the son,
who on this testimony alone would have been convicted. The
father approached the book, and was going to swear; but, for
the honour of Virginia, the records of the state are not blotted
with so sanguinary a sentence. The scene was so truly affect-
ing, that at the recommendatioh of the court the demand for
his evidence was not persisted in. But is general Wilkinson
the child of the president of the United States? Is the presi«
dent to be viewed as the father of genersil Wilkinson? Is Mr.
Jefferson to fafe placed in the same situation with respect to
James Wilkinson, as the parent I have mentioned, with regard
to the boy? Are the hearts of Mr. Jefferson and general Wil*
kinson connected by the same tender ties of sympathy, as
those of a father and son ! The law is, that every man, who
is not interested in the event of a cause, is a witness, and
bound to g^ve his testimony when called on, except in cases of
professional confidence.
The objection to the insufficiency of the affidavit is unfound-
ed. It is a work of supererogation to make tt at all. It was not
necessary to entitle us to msdce the president disclose the pa-
per. It is evident, without it, that he ought to produce it. We
proceeded in this by way of frank accommodation to prevent
the necessity of his attendance. As they deny, we insist on the
right to draw this paper from the president's pocket. [Here he
expressed a hope that he had not misunderstood Mr. Wirt,
concerning the necessity of the affidavit. Mr. Wirt repeated
what his argument had been, and the chief justice stated that
the impression of the court was similu".] A man ought not to
be precluded from evidence which he thinks materisd, though
he does not inow it to be positively so. If the paper were not
in a bureau of office, we should want no subpoena duces tecum*
159
It stinds on the same groimd as m comiBon tubpceat, and we
hftve die same right to nave it, as to have a common subpoena.
Bat the object being to obtain the paper only, if it be trans-
mitted and found to be different from what it has been re-
presented to be, the witness would then be excused from at*
tending.
If our affidavit stated the materiality of the paper, and yet
die paper should be found to be otherwise, we should then
have to encounter the full torrent of Mr. Hay's invectives, for
having incautiously sworn to what was incorreot» although the
affidavit stated the fact precisely, as Mr. Burr had every just
reason to believe it. Mr. Burr desires to obtain this paper, but
he knows not its contents: he cannot say what is in it, but we
have the holy word of the president himself, that it relates to
colonel Burr. This is one of the few things which he has done
wrong^. The president testifies, that Wilkinson has testified to
him rally against Burr. I am absolved from all scruples on
this subject. I have a right to demand peremptorily Wilkin-
son's letter, when it is said that it will prove Burr's guilt. The
president's declaration of Burr's guih is unconstitutional. I
deny his right to make such a declaration against any man, or
to make such an inference from statements made to him. The
constitution gives him no such right; and its exercise by the
president would be dangerous. It may and must excite unjust
prejudices, and create a powerful influence against a man who
is really innocent. The constitution very wisely withholds from
the president a power so unfavourable to a fair trial between the
pubKc and individuals accused, and so dangerous to the liber-
ties and lives of the citizens. I hope it is no rebellion, but I
hope our objection to this dangerous and unconstitutional de-
daration of the president, will be handed down to posterity, to
prevent his conduct in this respect from being imitated. Con-
cress did not call upon him for his opinion. They would have
oeen satisfied with his statement of public transactions, without
his opinion. He is to see that the laws be faithfully executed^
and to g^ve information with respect to the state of the Union;
but he is not to give opinions concerning the guilt or innocence
of any person*
A copy of this letter would do in every other sense, or for
any other purpose; but the original must be produced to Wil-
kinson, otherwise he might deny it to be his. If a copy were
produced, he might deny that he had written, and on every
correct principle of law demand the production of, the original.
He would look towards the city of Washington, and consider
the consequences of testifying here. He would consider, how
the government would view his conduct. He might know it
to be a true copy, and yet be afraid to say so. Perhaps there
i6d
might be inductaieiits for him not to deny it : but suppose he
were to deny it at the trial, could you discharge the jury till the
original was brought? No sir, you could not; and every objec*
tion would be made and sustained against reading the copy.
Original papers only, have ever been admitted as evidence in pe»
nal cases. There is no instance of a conviction, in a capital case,
on the copy of a letter as evidence. The case of Smith and Og-
den is egregiously misunderstood on this point* [Here Mr.
Wirt explained* Mr. Randolph read the case and proceeded.]
The affidavit was wanted there to put oiF thetriaL To postpone
a trial, the utmost precision (precision ad unguent) is necessary;
but on a motion to take testimony, belief is sufficient.
I believe that Mn Jefferson ought to hasten to produce that
paper. His regard for the promotion of public justice ought to
mduce him to do it. His character requires that he should pro-
duce it. Lest that character should suffer, I would almost ask
it for his sake. Gentlemen say, why do we not rely upon lum, and
demand it of him ? I answer, that without the orders of this court,
the prospect of obtsuning it is very unpromising, after we have
made an application to one of his secretaries, (Mr. Smith) and re-
ceived from him a positive and peremptory denial, with a declara-
tion that the orders were intended for the officers alone who were to
execute. Mr. Van Ness had said, that there had been a promise
made tp furnish it to colonel Burr's counsel; but the promise
has not been performed. The orders could not be secret, since
they were published in the Natchez Gazette. Can there be any
hopes then of obtaining them from the president himself? Time
has been taken, and he has very probably been consulted. Mr.
Hay is not authorised to produce the papers, although he has
some of them. As then it is probable, that the heads of depart-
ment have been consulted, in the time which has elapsed since
our application was made; as the secretary of the navy has re-
fused to furnish these papers, and the attorney will not permit
us even to look at the papers in his possession, I trust we shall
be excused for not applying to the president, without the order
of this court.
It is again said, that this letter is confidential. I must revert to
the president once more. He is but a man, has ears and eyes,
and can see and hear like another man; he maybe a witness like
other men; he has no prerogative to have any secrets, the with-
holding of which may go to the destruction of the dearest inte-
rests of an accused man. Mr. Hay has been pleased to call the
affidavit ^^farcicalJ^ I wish he had been so good as to tell us how
he would have had it drawn. [Here he read it.] Mr. Burr has
indications that it is material. The president, in his message to
congress, in announcing the doubtless guilt of Mr. Burr, has
made himself judge and accuser. The opposition now made to
161*
its production justifies the opinion, that the letter contains more
than has yet been disclosed; that there is something more be-
hind the curtain. Sir, I contend that when the dearest interests of
a feUow citizen are involved, the president's cabinet is not too
sacred to be examined and exposed to view in a court of justice.
I know that the present president abhors such conduct; but
would you permit a future president to hunt down any man by
proclamation, declaring him to be guilty of treason, and with-
holding a part of the facts, on which his opinion is founded f
This puts an engine into the president's hands to destroy an
enemy, by giving a partial statement of facts, while he publishes
the most unfavourable opinion of him. Mr. Hay indulges him-
self in little verbal criticisms; he says that ^^ may be material^
is the same thing as ^^ may or may not be materiaL^^ Sir, Mr.
Burr believes that they mayh^ material. With this impression,
he has made the affidavit, which in my opinion is sufficiently ex-
plicit, If an affidavit be at all necessary. Something has been said
of unmasking our defence. Do you wish us to tell general Wil-
kinson all the grounds upon which, he will be attacked i We only
say, that he is grossly inconsistent in his disclosures, and that he
will be contradicted. We cannot go further while the contents
of his letter are unknown to us.
But Mr. Burr's affidavit is not to be attended to, because h|e has
feelings and maybe misled by them! It is the same thing with every
odier man. Because a man is interested, he is more ready to
make known to the world his injuries and assert his innocence.
But I must notice that part of the argument, relating to these
orders of the government, wherein my friend Mr. Martin was
charged with speaking treasonably. This has raised an amazing
clamour. I added, the other day, the illegality of these orders, as
then understood by me, to the other causes of dissatisfaction with
the conduct of the president. But I now learn that these orders
were worse dian I expected : that they were to bum, kill and
destroy the person and property of Mr. Burr and his party.
Whether the orders were exacdy to this effi^t or not, I am not
sure; but I believe this statement not to be very incorrect, and
the refusal of gentlemen to produce them proves that there is
sooiething behind; or why does not the attorney produce the
copy he has in possession ? Mr. Martin never did say (as I un-
derstood him) tliat these orders justified an opposition to the
government of the United States. Whatever he did, we shall
contend was legal, and not in opposition to the government. But
I will say, that if the president had called out a military force,
iUtgtdly^ to destroy the person or property of any man, that man
had a right to resist. The orders to destroy the person and pro-
perty of Mr. Burr, if given, were unconstitutional and unjustifi-
able. If I am wrong in my statement \ pray to be set right ; but
Vol- 1. X
162
if I reooUect the constitution correctly, it does not jusdfy such 6r-
ders in such a case as this. It only ein|x>wers congress ^^ to pro*
ride for calling forth the militia to execute the laws of the Union,
and to suppress insurrections and repel invasions.'^ The presi*«
dent is sworn ^ to preserve, protect and defend the constitution,
and he is to take care that the laws be faithfully executed." ^^ The
United States are to protect each state against invasion and
against domestic violence, on application of the legislature or of
the executive, when the legislature cannot be convened." The
president is to call out a military force oi^ to suppress insurrec-
tions or to re{)el invasions. Was this either i There certainly was
no invasion of our country by a foreign nation. If there had been
an insurrection, the state governments might have interfered*
Was there any application for ud by any state government^
There is a third case, it must be admitted, in which an armed
force may be resorted to. I mean infractions of the law of na*
tions, by armed vessels. These are the only three cases in which
the president is, or can be authorised, by the law of congress un«
der the constitution, to call out a military force; and as none o£
them occurred, those orders were Hlegal and uiyustifiable.
Chief Justice. — ^Does not the law of congress authorise the
president to call out the militia to suppress an expedition against
any foreign state in amity with the United States I
Mr. Wirt said, that the act of congress, passed in the year
1794, expressly required the president to employ military force
to suppress or prevent any such expedition.
Mr. BoTTs said, that colonel Burr could not say more posi-
tively than that ^^ it may be materiaL^^ That as lie did not know
what evidence might be adduced against him, it could not safely
be otherwise expressed.
n
Chief Justice. — ^Could not the word be changed to ^* xviU.
Mr. BoTTs«-— For the sake of precedent I wish it to remaia
as it is.
Mr. Wirt. — If the word ivHl were to be inserted instead
of ^^ may be^^ ithe objection to the generality of the affidavit
would sull remain.
Mr. Martin. — Agreed; but we will speak of that hereafter.
Mr. WiRT.--»Examine the letter; it only goes to the guilt of
Burr. How can it confront Wilkinson, if it speaks of the guilt of
Burr?
Chief Justice.— But there may be contradictory statementa
of guilt
i
163
Mr. WiKT.— But the prima facie evidence of this letter is,
that it charges guilt; but there is no evidence of contradiction;
diere are only vague insinuations. The law of congress authorised
the president to act as he did. By the 7th section of this law,
^ the navy or army of the United States may be called out to
take such ship or vessel," and also for the purpose of quelling
any force raised for carrying on any expedition against any
country with which the United States are at peace.
Mr. Randolph proceeded. The object of requiring the oiv
ders to be produced is, to ascertain whether they be conformable
to the law; and no power to call out the militia in the commence^
ment of an expedition^ or in beginning to prepare the means^ iik
given by the law. I will suppose, for a moment, what I utterly
deny to be the feet, that colonel Burr had actually begun an ex-
|)edition, had prepared arms, vessels, men, &c. ; yet, as penal laws
are to be construed stricdy, he could only be stopped under this
kw, when the expedition was actually formed and carried on»
But it is insinuated to be improper to ask the president, and not
the officers of government, for those papers. The president is
the person who must be considered as having refused the papers.
All the officers act under him and must obey him. Application
should be made to the department of state. The chief justice
said that the de:partment of state ought not to be apphed to»
{See Mr. Hay^s argument.^ As to the letter, it must be in the
president's bureau; for, as tar as we can discover, it is directed
to him, and he withheld it from the legislature. But it is asked,
what is to be done with the letter, if parts of it are net proper to
be expoaed? This is a most extraordroary objection. Shall we be
leiused the parts important for our defence, because other parts
are improper to be published? An arrangement could easily be
made, i^ which only those parts which are proper to be disclosed,
should be nsed.
Sir, I must make a few remarks with respect to your exhorta-
tion, and what was said by gentkmen yesterday and to-day.
We have been charged with the policy of exciting {>re|udices
against the administration, rather than defending Mr, Burr.
Hints were also thrown out as to popular opbion. Sir, I never
defend my client by popular prejudice. I know it would be in
vam to attenpt it. I know who has got the windward of me.
They have the public approbation strongly in their fayour. I
blow ho^ impotent is one individnri, when opposed to the power
flf the ^vemment* But I hope the arguments we have been
compelled to ose, will have their due weight with the court. The
ggwitic magnitude of the crime chaiged against us, is diminish-
tfig every day; and we have nothing but an interested man,
whose ail is att sitake, to c^ipose us« We demand justice only, and
164
if ybu cannot exorcise the demon of prejudice, you can chson
him down to law and reason, and then we shall have nothing
to fear.
Mn Wirt.— As to the denial of the law by Mr. Randolph,
and the gendeman from Baltimore, I insist that they are mis-
taken ; and that the law is as I have stated it to be. The respect
which I owe to this court, would prevent me from asserting for
law, that which I do not know to be law. Mr. Randolph has
enumerated three cases, in which force could be used, and then
sat down majestically and called the giant to be produced at once.
Mr. Martin endeavoured to explain, by saying, that he had
not said that there was no such law.
Mr. Randolph explained.
Chief Justice.— «The truth is, that you did not advert to
the law.
Mr. Botts observed, that Mr. Wirt had said, that the hw
justified an order to kill Burr and his party, without trial or
condemnation.
Mr. Wirt denied it. He had only said that there was such
a law. I mentioned it before, said he, and I pointed to it after-
wards. I feel my candour impeached by the course which gen-
tlemen have thought proper to take. If the court should doubt,
as to the construction of the act of congress, I should wish to be
heard further on the subject.
Mr. Randolph said, that he meant nothing personally against
Mr. Wirt; but he had said that he knew no law that was appli-
cable; and he now insisted, that the law was as he represented.
Mr. Mardn asked leave to speak again; and the court was
ndjoumed till to-morrow. Note. The grand jury was adjourned
till Saturday.
Friday, June 12th, 1607.
The court met according to adjournment.
Mr. Maktin addressed the court to the following purport:
I shall now, may it please your honours, make a few observa-
tions, in which I shall endeavour to avoid all extraneous matter.
This has been uniformly asserted by the genUemen for the pro-
secution, to be a motion addressed to the discretion of the court;
and in some degree admitted by the counsel with whom I act.
But the practice in the state from whence I came (Maryland) is
different. A subpoena duces tecum is never applied for in court.
It b issued of course by the clerk, acquiesced in by the parties
165
and counsel, approved by the court, and never opposed. Accord-
ing to that practice, Tand which gendemen wiU excuse me for
mentioning, as they have so repeatedly called on me to state
whether I had known such a process to issue in such a case) the
right of the prosecuting counsel to oppose the demand of the ac«
cused is denied; and it is no more competent to them to do this,
than to oppose the granting subposnas for living evidence. It
would b^ deemed highly indecorous to make such an opposition*
They ask us the reason why we make this motion. We tell them,
that the object of the accused, in demanding the production of
general Wilkinson's letter, is, that we may compare its purport
with that of communications which he has made to others. If
he has made inconsistent or contradictory statements, and we
can prove that he has done so, we certainly have a right to avail
ourselves of it, to lessen or destroy his credit. But its production
is opposed on the ground of its containing state secrets; and that
it may expose the names of others presumed to be implicated.
Is this exposure to be prevented at the hazard of Mr.- Burr's
life? Innocence cannot suffer by exposure: guilt ought to be de*
tected. What, sir, shall the cabinet of the United States be con*
verted into a lion's mouth of Venice, or into a repertorium of
the inquisition? Shall envy, hatred, and all the malignant pas*
sions pour their poison into that cabinet against the character
and life of a fellow citizen, and yet that cabinet not be examined
in vindication of that character and to protect that life? Shall a
citizen be privately accused, and the name of his accuser not
even made known to him? No more of the letter is sought to
be used as evidence than relates to the accused. When the letter
is produced the court can judge of it, and withhold from the
public any secrets which ought not to be disclosed. The mere
possibiUty of its containing state secrets is no reason why
there should be a suppression of what is no secret. Gendemen
ten us, that they are perfectly willing we should get it; and
yet they throw impediments in our way to prevent us from
getting it!
Mr. Hay declared that he had written for the letter, and had
done every thing in his power to obtain it; though gendemen
seemed disposed not to credit him.
Mr. Martin.— -If we were certain that the gendeman would
succeed in his application, we should be disposed not to trouble
die coart with this motion. But can we depend on his success,
when the gentleman tells us, that when the papers come he will
not let us look at them. What will be our situation after the
trial is begun, if the papers do not come? It will be then too
late to move for a postponement; and we shall lose the evidence.
We are entitled to it now, and ought to have it. I cannot say
166
dntt I Jeel disposed to rdy much on the favours of as adverse
party. ** Timeo Danaos et dona fertniea*^ I prefer the. enjoy-
ment of my certain rights, to the promises of him whose interest
10 opposed to mine.
But we are told that there ought to be respect between the
departments of government; that we ought to respect the pre-^
sident. Is it derogatory from that respect, to issue process to
obtain necessary testimony from him? WUl the president think
himself insulted by the demand of a mere document? Can be
possibly thinlc it disrespectful? But suppose he should, is the life
of a man, lately high in public esteem, not indeed the first, but
the second citizen in our country, to be endangered for the sake
of punctilio to the president of die United States? Sir, , we ap-
peal to the Supreme Maker, that we only wish justice, and fear
^nly perjury* We approach, with uplifted hands, the sacred altar
of justice, as a sanctuary to screen us, not Irom just punishment,
but from unjust, rancorous persecution! and from this sanctuary
we confidently expect protection.
But we are told, that a copy will be sufficient. But will the
copy show that the original is not a forgery? It may prove, that
there is a paper, of which it is a copy, deposited in the office; but
it will not prove, that the paper so deposited is the hand writing
ef general Wilkinson* If general Wilkinscm wrote a libel and
sent it to the president, would a copy be admitted as evidence
against him on a prosecuuon for the libel? Copies are never ad*
mitted as evidence in prosecutions ior hbeb, or in any criminal
prosecutions. But gentlemen say, that general Wilkinson would
not dare to deny that he had written it, if the counsel agreed
that it should be evidence. Woidd that make it his hand writ*
ing? General Wilkinson has already violated his oath, in wilfully
and tyrannically violating the constitution which he had solemnly
sworn to support. Has he not exercised the moat wanton mih*
tary despotism? Has he not insultingly resisted and trampled
under foot the constituted authorities, in disobeying the writ of
habeas corpus? Has he not done all these things in open defiance
and in palpable violation of the plain letter and meaning of the
constitution? He comes here to justify these misdeed^. A mas
who has done a series of bad acts will not fail to add one more,
in order to conceal them from view, and secure himself from
punishment. Though he is the pivot on which the prosecution
turns, and therefore the counsel for the United States uphold
bim, colouel Biur has not confidence in the honour or integrity
ef general Wilkinson, to trust his life to his veracity. But it is
said, that if he should deny it, then we can send for the origiaaL
He would have no occasion to deny it, tiH the jury were sworn
to try colonel Burr; and if die testimony on both sides were
equal) and the scales of justice hanging even, the deniiJ cS genr-
167
ral Wilkinson pat in the scide against us, would prqxmderate;
it would be then too late to send for the original, to confront
and disprove his denial ; the ^^Jiaf^ of life and death, must be
determined by the evidence before the jurvr we ought therefore
to get the original now*
But the gentleman asserts, that we have made the motion in
order to glance at the president. We disclaim such motives. It
would be dastardly to make a court of justice the scene of de*
traction; the means to abuse individuals^ We deny such motives;
aor are gentlemen warranted in imputing them to us*
But the gentleman has tokl us, that respect ought to be paid to
the officers of government. It is granted. I once thought so. I
thought that the officers of government ought to be treated with
high respect, however much their conduct ought to be the subject
of criticism; and I invariably acted according to that principle.
If I have changed my opinion, I owe it to the gentleman him-
self, and the party he is connected with. They formerly thought
differently. That gentleman and his friends so loudly and inces-
santly clamoured against the officers of government, that they
contributed to effect a change in the administration, and are now in
consequence basking in die sunshine of office; and therefore they
wish to inculcate and receive that respect which they formeHy de-
nied toothers in the same situation* We have a right to inspect
the orders issued from the war and navy departments; because, if
Aey were illegal, we had a right to oppose them. If they were
unconstitutional and oppressive, it was rig^tto resist them: but
this is denied, because we are not trying the president. God
forbid, we should* But we are tr)aBg if we had a right to resist.
If every order, however arbitrary and unjust, is to be obeyed, we
are slaves as much as the inhabitants of Turkey. If the presi-
dential edicts are to be the supreme law, and the officer» of the
government have but to register them, as formerly in France^
(die country once so famed by these gentlemen for its progress
and advancement towards liberty); and if we nmst submit ta
diem, however unjust and unconstitutional, we are as subject to
despotism, as the people of Turkey, the subjects of the former
^ Grand Monarqnei^ in France, or those of the despot Bonaparte
at tbb day. If this were true, where would be our boasted free-
dom? where, the superior advantages of our government, or the
beneficial effects of our revolutionary struggles? I will take the li-
ber^ of eiplaining how far resistance is justifiable* The president
has certain known and well defined powers; so has a common ma-
gistrate, and so has a constable. The president may exceed his
legal authority, as well as a magistrate or a constable. If a magis-
trate issue a warrant and direct it to a constable, resistance to
it b at the peril of the person resisting. If the warrant be ille-
gal, he is excused: but if it be legal, be is not. On the same
168
principle, resistance to the orders of the president is excusable,
if they be unconstituuonal and illegal* Resistance to an act of
oppression^ unauthorised by law, can never be criminal; and this
is all we contend for.
Mr. Hat stated that he was sony to interrupt the gentle-
man ; but, from his argument it was evident, that the ground
taken by himself, and the gentlemen associated with him in the
prosecution was entirely misunderstood. He denied that he
ever said that the president's orders are invariably to be ob»
served. That such an assertion might justly be considered as
incompatible with the principles of our government. Mr. Hay
then explained what his argument had been; and what he meant
to insist on as correct. That if information had been lodged
with the president, that a dangerous conspiracy or insurrection
against the government and laws, or an expedition against a
nation in amity with this country, was secretly or openly form-
ing, it was the duty of the president to issue orders to suppress
the insurrection or prevent the expedition; and if he did issue
such orders or precept, it would not be lawful in an individual
to oppose them by force : that an act of opposition to his pre-
cept so issued, if not treason, would be at least a high misde-
meanor; that such a precept was very different from an order
to kill or imprison without bail or mainprize, or to raze to the
ground and destroy, as gentlemen had represented the orders
in question.
Mr. Martin appealed to the court and bystanders whether
Mr. Hay's assertions or arguments had not been substantially
as he had represented them, and then continued. The gentle-
man expressed his surprise that such doctrines should come
from me, who come from Maryland to instruct and enlighten
the Virginia bar. I come not to instruct or enlighten. I come
to unite my feeble efforts with those of other gentlemen in de-
fence of my friend, whom I believe to be perfectly innocent of
the heavy charges against him : but their conduct evinces, that
if I were to attempt it, my instructions would be in vain. If,
however, I did venture to advise him, it would be, not to ac-
cuse us of evil intentions ; to mix a little of the milk of human
nature with his disposition and arguments; to make his con-
duct conformable to his professions, and not to be perpetually
imputing guilt to us. But the gentleman needs no advice.
I have said, that I believed the orders and letter to be ne-
cessary. I will not examine now as to their legality; that will
be discussed hereafter ; but it is evident that they are material to
try whether they were legal or not ; and if they were resisted,,
whether that resistance was legal or not? The president is the
proper person to apply to, because all the officers of the govern-
169
xnents are under his control. But tviro objections have been made,
which have not yet, within my recollection, been answered:
Qne is in the form of a question, that if thts evidence came,
what would be done with it ? The answer is obvious : that it
must be retained by the court till it is wanted. The other ob-
. jection is, that there is no particular day to which the subpoena
is legally returnable: the cause is not set on the docket to be tri-
ed on any particular day, and therefore, no particular day is nam-
ed. But this will produce no inconvenience : in general, process
is made returnable: on the first day of the term. There the wit-
ness can attend as soon as it may be convenient; that is, as soon
as possible after the subpoena shall have been served; and it is
in the power of the court to make it returnable when they think
proper. [Here Mr- Martin made a reference to the practice in
Maryland, which was not distinctly understood.] I thank the
court for their patience in hearing these few observations; whe-
ther time has been gained or not, the result will show*
Chief Justice. — The affidavit speaks of an answer to gene-
ral Wilkinson's letter*
Mr. Burr. — Though I am extremely well satisfied with the
arguments of my counsel, as far as they have gone, yet I shall
offer a few additional remarks. The counsel for the prosecu-
tion are mistaken when they say, that it would be improper to
address the subpoena to the president. The public papers are
not kept in the department of state, but in the separate depart-
ments according to their nature. There is no official commu-
nication between general Wilkinson, as a general or commander
in chief, and the president, though there may be as governor of
Louisiana. The communications from him, as general, are to
the department of war. The president's letter does not show
where general Wilkinson's letter is deposited. If addressed
to him, it continues in his possession. His communication to
congress shows that he has it. The course in congress is to
apply direcdy to the president for any papers or documents
wanted, and not to the secretaries;.because they are all under
his control and direction: he can order them to deliver any pa-
per or document in their possession, and they must obey him.
Mr. Burr then went more into detail, the substance of which
was, that there was no evidence of the commission of treason ;
that the president, in his communication to congress, and in
his proclamation, grounded on general Wilkinson's letter to
him of the 21st of October, insinuates nothing of a treasonable
nature; that in these he states, that an attack on the Spanish
colonies was supposed to be intended: but if thtre had been
any just reason for believing that treason had been committed,
the president would certainly have stated it ; thsit he had beea
Vol. I. Y ^
170
denounced by the highest authority in the country ; that this de«
^unciation had created a general prejudice against him ; that
the government ought to furnish all the means in its power to
remove the unjust prejudices thus improperly excited against
him ; that he asked no. privilege but what the laws conferred on
every citizen. He demanded these papers^ not for the purposes
of detraction, as had been unjustly asserted; but to discover
facts tending to prove his own innocence. He denied, in strong
terms, having advised or stimulated his counsel to abuse the
administration: that, on the contrary, he had charged them to
avoid all irritating reflections. He concluded, by expressing bis
hopes, that the motion would be granted ; that if the court made
the order, the papers would be obtained without delay : where-
as a previous application for them without such order, if un-
successful, would produce considerable delay, which he wished
very much to avoid ; and that the approach of general Wilkinson
required a prompt opinion of the court to prevent delay.
Mr. Hay observed, that he was much struck with the bold-
ness of some gendemen on a subject on which they were not
correctly informed. He said, that no opportunity was lost to
abuse the administration. He animadverted on the argument
of Mr. Randolph the other day : That he had proclaimed loudly
that some parts of the orders of the navy department had ex-
cited in his mind the most uneasy sensations. He confidently
stated, that these orders were most cruel and illegal ^that they
were to kill and destroy colonel Burr, and bum his property
wherever found. That tfie purpose of gentlemen was easily
discerned ; that Mr. Martin, in his vehement manner, talk-
ed about the hell-hounds and blood-hounds of persecution
having been let loose by the president or his instrumentality,
to hunt down and destroy colonel Burr. That he was sorry that
gentlemen should ascribe such acts to the government as not
only it had never done, but as it was incapable of doing. To
silence their clamours and put an end to such declamation about
cruelty and tyranny, he said, that he would produce a copy of
the order from the secretary of the navy, to which all their
complaints referred ; that he would read it, and it would appear
to be legal and proper; and that notwithstanding all the invec-.
lives against the administration on account of it, there was no
just cause of complaint against it.
The counsel of colonel Burr wished to inspect the paper
before it was read. Mr. Hay offered to read it, but refused to
let them examine it. They then objected to its being read,
and insisted, that it was the undoubted right of counsel, itt every
cause, to examine all documents intended as evidence before
they could be read»
171
Mr. Hat then observed, that their objection to its being
read showed clearly their object, and was a palpable contradic-
tion to their statement; that they used it as a mere pretext.
Believing it not to be in court, they loudly demanded it as a
document essential to their client, and demonstrative of op*
pression in the government; but the moment it is offered to be
read, they object to it.
Mr. Martin vindicated colonel Burr from the charge of
having stimulated him to make any severe reflections: that
colonel Burr had, in fact, endeavoured to restrain him; but
that he was urged by his own feelings to express his senti-
ments, contrary to the directionsof his client.
Mr. BoTTs vindicated Mr. Randolph (who was absent)
from the charge preferred against him by Mr. Hay. He did
not believe that Mr. Hay had intentionally misrepresented any
thing; but that he was incorrect in saying, that the counsel of
colonel Burr had expressed complaints without cause, and
exibited charges without any evidence. We are, said Mr.
Botts, in a delicate situation : great prejudices have been ex-
cited, and the popular voice is raised against us. But we hope
that truth and justice will prevail. We do not' wish to accuse
the executive unjusdy; innocence ought to be presumed until
guilt appears. We have prima facie evidence of what we al-^
lege; but still we hope that the honour and character of the go-
vernment will be found to be unsullied, and that all doubts re-
specting its conduct will be cleared up. This can be most ef-
fectually done by producing freely, without reserve or opposi-
tion, all the testimony in its power, which we demand as ma-
terisd to our defence. Colonel Burr wished us not to wander
into charges against the administration, unless the proofs of its
improper acts were indubitable, and they were clearly connected
with this cause.
The Chief Justice, after having expressed the regret of
the court, at the length of time already consumed in the dis-
cussion of this motion, proposed, that no more than the usual
number of counsel should speak on incidental points. 1 hat the
court was unwilling to check gentlemen in their arguments,
but it was hoped, that hereafter they would endeavour to
avoid repetitions, and the unnecessary waste of time.
Mr. Hay again proposed to read the letter of the secretary
of the navy.
Chiet Justice. — The propriety of reading depends on its
authentication.
Mr. Hay. — I suppose that gentlemen wish to see it, though
not legally authenticated.
172
Mr. Martin expressed a doubt whether this was the same
order; he presumed that there were more orders.
Mr. Randolph (who had returned into court) wished to
see it, in order to ascertain whether it was the same which they
had seen in the Natchez gazette.
Mr. Hay declared his belief that it was the same, but as
gentlemen did not wish to hear it, he put it up again.
Mr. Burr addressed the court. He observed, that this w*8
perhaps the most proper time for renewing the motion which
he had made some time ago, about giving more specific in-
structions to the grand jur}% on certain points of evidence.
These points he had reduced to writing, in the form of abstract
propositions, which he would take the liberty of reading to the
court: the following is a list of those propositions, with the
authorities cited to support them.
First, That the grand jury cannot, consistently with their
oath, find a bill, except on such testimony as would justify a
petit jury to find the prisoner guilty. Foster, 232. sec. 8. 3 Insti-
tute, 25. 2 Institute, 384. DaltDn,519. Judge Wilson's Works,
vol. 2. p. 364. T. W. Williams' Justice, vol. 3. printed 1794.
3 State Trials, 419,420. and Sir John Hawles' Observations,
4 St. Tr. 133. 4 Black. 302 — 306. 2 Hale, chap. 8. p. 61.,
Wilson's edition with Wilson's note. 2 Hale, chap. 22. p. 157.,
with Wilson's note. Eunomos' Diet. 2d. sec. 39. p. 124, 5, 6.
5 State Tr. p. 3. Foster, p. 232. sec. 8.
Second, That no testimony or witness ought to go to the
grand jur)', but what is legal and competent to support the
charge about which the inquiry is made. Danby's case. Leech
443. c. 187. Dodd's case, Leech, 59. c. 77. Commonwealth of
Virginia v. Hopbam, Warles and Daws, before the general
court at Williamsburg.
Third, That the grand jury cannot return a bill for treason,
for levying war against the United States, unless they have
two witnesses who swear to the overt act of the treason laid
in the indictment; both which witnesses are believed by them.
East's Crown Law, chap. 2. sec. 64.
That both must be believed, 3 State Trials, p. 56.
Fourth, That there must be two witnesses to the grand jury
of each overt act, follows also as a consequence from the former
position, that they must have such testimony as would be re-
quisite for the petit jury.
Fifth, That the grand jury cannot find a bill for treason in
consequence of any confessions made, though proved by two
•witnesses. Foster, 241, — 3. 4 Black. Constitution of the
United States, article 3. sec. 3. Graydon's Digest, 11. Judge
173
Iredell's charge, Fries's Trial, 171, 1/2^ East's Crown Law,
96,97.
Sixth, That as the grand jury only hear evidence on the
part of the state, if upon that evidence they entertain a doubt
of the truth of the charge, they ought not to find the bill ; as the
presumption is ever in, favour of innocence. 1 Mac Nally,
2 to 6.
Seventh, No act of a third person can be given in evidence
against the accused to prove him guilty of treason, or of a mis-
demeanor under the law of the 5th June 1794, unless that act
is proved to have been committed by the advice, command^
direction or instigation of the accused, if done in his absence,
or if done in his presence, unless it be proved that the accused
was aiding or assisting.
An act shall bind a person connected with the act, but the
declaration shall not bind him, because no part of the act.
Mac Nally, 615, 616.
Eighth, The declarations of others cannot be g^ven in evi-
dence on the present inquiry to support the charge of treason,
or of a misdemeanor under the act of congress 15th June,
1794, unless it be proven that the accused was present and as-
sented thereto.
East, 96. In case of conspiracy, confessions good against
him who makes them, but not against others, Peake, chap.
1. Admiss. Hearsay — Kelyng, 18. Mac Nally, 40, 41. Con-
fessions of one cannot be read against others. 3 State Tri-
als, 57 •
A relation of what had been done, no evidence. Mac Nally,
616.
Declarations of others are not evidence. 4 State Trials,
192—196.
6 State Trials, 218. In the presence of others, they acqui-
escing. Mac Nally, 621.
Mr. Hay opposed this proceeding. He contended, that the
court had no right to give specific instructions to the grand
jury, after they had been once generally charged by the courf ;
that such a course was contrary to all law and all precedent;
that not a single instance could be quoted to support it; and
that there were cogent, and in this instance, particular reasons
why criminal prosecutions should be suffered to progress with-
out these interruptions. He further contended, that the chief
justice had anticipated such a situation ; and that t^e language
in his charge clearly indicated his expectation, that bills would
be laid before the grand jury on the ground of treason; and
that under this expectation, the chief justice had dilated on the
nature of treason, and given all the information which he thought
material; that there was no reason at all, why Aaron Burr
176
At present, but should reserve it until Monday. In the meatt
time colonel Burr's counsel have an opportunity of inspecting it;
and an argument might be held oh the points which had pro^
duced an objection from the attorney for the United States.
Mr. E. Randolph. — Is it the wish of the court that the ar-
gument should be carried on orally or in writing? '
Chief Justice*-— I am willing to see the remarks on both
sides, in writing.
Mr. Hat objected to this method from the excessive labour
which it would impose u|>on them either way.
The Chief Justice declared that it was perfectly indiflFerent
to him.
Mr. Martin assured the court that it was perfectly convenient
to him to argue the point either orally or in writing.
Mr. WiCKHAM stated, that the attorney for the United States
wished to object to certain propositions which colonel Burr had
submitted to the court; that he was ready to go into the discus-
sion immediately; that the attorney for the United States pre-
ferred an argument before the court to one in writing; and that
this was in fact, the very course which colonel Burr's counsel
had first recommended. Mr. Wickham hoped that this supple-
mental charge would be given to the jury, before the witnesses
were sent up; that the counsel for the prosecution preferred the
contrary, but which was, in fact, the most improper course.
The Chief Justice observed, that the court would also have
wished that the charge should have been delivered, before the
witnesses were sent up: but that it was almost indifferent to him,
whether the testimony was submitted to the grand jury before or
after the delivery of the charge ; that it was often the custom for the
petit jury itself to hear the testimony before the law was expounded,
and the same practice might extend to the grand jury; for it was
extremely easy for them, after they had heard the testimony, to
apply the instructions of the court, and distinguish those parts
which were admissible from those that were not so. It was not^
for instance, absolutely necessary for them to know, previous to
the delivery of the charge, that two witnesses were necessary to
prove the overt act. When the charge had been delivered, that
principle would apply to the testimony which they had actually
heard; and that it was desirable that though the charge should
precede the testimony, yet it was not so essential as to interrupt
the proceedings.
Mr. Randolph conceived it far more important to give the
supplemental charge before than after the exhibition of the tes-
177
timony : that with one set of principles on their mind, the grand
jury would frequendy ask questions in one point of view, which
they would net under other impressions; and that the supple*
mental, lilre the original, charge ought to precede the evidence.
Mr. Martin observed, that there was this considerable dif-
ference between a grand and a petit jury, that when any doubt
arose about the propriety of testimony before die petit jury, the
court would be present and ready to decide; but the grand jury
has not the same aid of the judgment of the court in selecting
the testimony.
The Chief Justice said, that the necessity of giving a sup-
plemental charge, at this time, was not so manifest; as, in his ori-
ginal charge, he had expressed his ideas on the nature of treason.
That he stated this crime to consist in an actual *' levying of
war,'' and that of course, the grand jury would have to inquire
into the existence of overt acts : that, from this statement, it
would readily occur to the jury, that no matter what suspicions
were entertained, what plans had been formed, what enterprizes
had been projected, there could be no treason without an overt
act; and without some overt act, no crime of treason had been
committed.
The discussion of this question was at length waived, when the
Chief Justice delivered the following opinion on the motion to
issue a subpcsna duces tecum directed to the president of the
United States :
The object of the motion, now to be decided, is to obtain copies
of certain orders, understood to have been issued to the land and
naval officers of the United States for the apprehension of the ac-
cused, and an original letter from general Wilkinson to the pre-
wdent in relation to the accused, with the answer of the president
to that letter, which papers are supposed to be material to the
defence. As the legal mode of effecting this object, a motion is
made for a subpoena duces tecumy to be directed to the president
of the United States.
In opposidon to this motion, a preUminary point has been
made by the counsel for the prosecution. It has been insisted by
them, that, until the grand jury shall have found a true bill, the
party accused is not entided to subpoenas nor to the aid of the
court to obtain his testimony.
It will not be said, that this opinion is now, for the first time,
advanced in the United States; but certainly, it is now, for the
first time, advanced in Virginia. So far back as any knowledge
of our jurisprudence is possessed, the uniform practice of this
country has been, to permit any individual, who was charged
with any crime, to prepare for his defence, and to obtain the
Vol. I. Z
174
should enjoy greater privileges than any other man, or why he
should rake up all the old, musty and absurd doctrines of an*
tiquity, and have them enlisted in his service; and that he
stood on the very same ground as any other man. That perhaps
alt the propositions on Mr* Burr's list would not be wanting
at all ; or if there should be any necessity for them, that these
^ questions might be discussed as they successively arose ; that
i tltese discussions would necessarily consume much of his own
time, as well as the time of the court, which might probably be
devoted to more useful purposes; and after all, the grand jury
might refuse any instructions, and in that case, how could they
be controlled by the court? If the grand jury determined to
pfty no regard to it, of what avail would be the recommendation
of the court i (for it was in fact no more). And if they were to
_i find according to their own opinions, and in the old way, how
could the court Icnow of this variation, and how could they
rectify it?
Mr. BoTTs replied. He stated that the gentleman had de-
manded precedents ; and yet it was but the other day when
that very gentleman had .inquired, why we so- constantly re-
sorted to precedents, and why we did not sometimes consult
. the principles of common sense : that the grand jury were not
that lawless mob, which the gentleman had seemed to repre-
sent them ; and that they would not certainly act against the
law, when it was properly expounded to them by the court;
that although the chief justice's charge was extremely able, yet
' it was impossible that it could be so comprehensive as it might
now be made, from the information which has since occurred;
and that the very necessity o£ giving any charge at all, showed
the propriety of perfecting it; that it was not colonel Burr's
desire to consume much time, as it was his most earnest wish
to end at once the bonds of recognisance and the public pre-
judice which Surrounded him ; and that they were even wil-
ling to limit their share of the discussion to a particular time.
The Chief Justice said, that it was usual and the best
course for the court to charge the jury generally, at the com-
mencement of the term, and to give their opinion on incidental
points as they arose, when the grand jury themselves should
apply to them for information ; that it was manifestly improper
to commit the opinion of the court on points which might
come before them, to be decided on the trial in chief; that he
had generally confined his charges to a few general points,
without launching into many details ; one reason was, that some
of the detailed points might never arise during the session of
the grand jury, and any instruction on them, would of course,
t^ unnecesisary; another was, that some of these points might
175
te extremely difficult to be decided, and would require an argu<^
ment of counsel ; because there was no judge or man, who would
Bot often find the sofitary meditations of his closet very mudi as*
sisted by the discussions of others : that he would have had no
difficulty, however, in expanding his charge, if he had been par-
ticularly requested to do it, or if he could have anticipated any
necessity for it, and that he would have no difficulty in giving his
opinions at this time on certain points, on which he could obtain
a discussion by the counsel, provided he did not thereby commit
his opinion on the trial in chief.
Mr. Burr then requested him to inspect the list of proposi*
tions, and the authorities referred to in support of them, which
he had prepared; he might then determine which of those points
would admit of the delivery of his opinion, and which would not*
The court then adjourned till to-morrow.
Saturday, June 13th, 1807".
The court met according to adjournment.
Mr. Burr thought proper to mention that his counsel hatl
understood, that a supplemental charge had been written by the
court, and put into the hands of the attorney of the United
States, and that it was to be shown to his counsel before it was
delivered. That for want of time, or some other cause, it had not
yet been submitted to them. The court had yesterday requested
and obtained a copy of his propositions, that they might judge
of their application, and if satisfied on that point, that they might
give additional instructions to the grand jury. Though the court
might not at first have perceived the necessity of a supplemental
charge, yet it must now appear, that each of his propositions
must come before the grand jury. If the court were satisfied
that they ought, they would have such additional instructions as
were necessary; and if they had. doubts, they would require an
argument. He was ready to demonstrate the truth of every one
of them. That he was ready to argue three weeks ago, and w^
desirous to save time, and would support them by written or oral
arguments, as the court might think proper.
The Chief Justice stated that he had drawn up a supplement
Sal charge, which he had submitted to the attorney for the Uni-
ted States ; with a request that it should also be put into the
hands of colonel Burr's counsel ; that Mr. Hay had however in-
formed him, in the conversation which he had just had with him,
that he had been too much occupied himself, to inspect the charge
with attention, and deliver it to the opposite counsel ; but another
reason was, that there was one point in the charge which he did
■ot fully approve. He should not, therefore, deliver his charge
176
at present, but should reserve it until Monday* In the ineaH
time colonel Burr's counsel have an opportunity of inspecting it;
and an argument might be held oh the points which had pro*'
duced an objection from the attorney for the United States.
Mr. E. Randolph. — Is it the wish of the court that the ar-
gument should be carried on orally or in writing ? '
Chief Justice***! am willing to see the remarks on both
sides, in writing.
Mr. Hay objected to this method from the excessive labour
which it would impose upon them either way.
The Chief Justice declared that it was perfectly indifferent
to him.
Mr. Martin assured the court that it was perfecdy convenient
to him to argue the point either orally or in writing.
Mr. WiCKHAM stated, that the attorney for the United States
wished to object to certain propositions which colonel Burr had
submitted to the court; that he was ready to go into the discus-
sion immediately; that the attorney for the United States pre-
ferred an argument before the court to one in writing; and that
this was in fact, the very course which colonel Burr's counsel
had first recommended. Mr. Wickham hoped that this supple-
mental charge would be given to the jury, before the witnesses
were sent up; that the counsel for the prosecution preferred the
contrary, but which was, in fact, the most improper course.
The Chief Justice observed, that the court would also have
wished that the charge should have been delivered, before the
witnesses were sent up: but that it was almost indifferent to him,
whether the testimony was submitted to the grand jury before or
after the delivery of the charge ; that it was often the custom for the
petit jury itself to hear the testimony before the law was expounded,
and the same practice might extend to the grand jury; for it was
extremely easy for them, after they had heard the testimony, to
apply the instructions of the court, and distinguish those parts
which were admissible from those that were not so. It was not,
for instance, absolutely necessary for them to know, previous to
the delivery of the charge, that two witnesses were necessary to
prove the overt act. When the charge had been delivered, that
principle would apply to the testimony which they had actually
heard; and that it was desirable that though the charge should
precede the testimony, yet it was not so essential as to interrupt
the proceedings.
Mr. Kandolph conceived it far more important to give the
supplemental charge before than after the exhibition of the tes*
177
timony : that with one set of principles on their mind, the grand
jury would frequently ask questions in one point of view, which
they would not under other impressions; and that the supple*
mental, like the original, charge ought to precede the evidence.
Mr. Martin observed, that there was this considerable dif-
ference between a grand and a petit jury, that when any doubt
arose about the propriety of testimony before the petit jury, the
court would be present and ready to decide; but the grand jury
has not the same aid of the judgment of the court in selecting
the testimony.
The Chief Justice said, that the necessity of giving a sup-
plemental charge, at this time, was not so manifest; as, in his ori-
ginal eharge, he had expressed his ideas on the nature of treason.
That he stated this crime to consist in an actual ^* levying of
war," and that of course, the grand jury would have to inquire
into the existence of overt acts : that, from this statement, it
would readily occur to the jury, that no matter what suspicions
were entertained, what plans had been formed, what enterprizes
had been projected, there could be no treason without an overt
act; and without some overt act, no crime of treason had been
committed.
The discussion of this question was at length waived, when the
Chief Justice delivered the following opinion on the motion to
issue a subpoena duces tecum directed to the president of the
United States :
The object of the motion, now to be decided, is to obtain copies
of certain orders, understood to have been issued to the land and
naval officers of the United States for the apprehension of the ac-
cused, and an original letter from general Wilkinson to the pre-
sident in relation to the accused, with the answer of the president
to that letter, which papers are supposed to be material to tho
defence. As the legal mode of effecting this object, a motion is
made for a subpoena duces tecum^ to be directed to the president
of the United States.
In opposition to this motion, a preliminary point has been
made by the counsel for the prosecution. It has been insisted by
them, that, until the grand jury shall have found a true bill, the
party accused is not entided to subpoenas nor to the aid of the
court to obtain his testimony.
It will not be said, that this opiuion is now, for the first time,
advanced in the United States; but certainly, it is now, for the
first time, advanced in Virginia. So far back as any knowledge
of our jurisprudence is possessed, the uniform practice of this
country has been, to permit any individual, who was charged
with any crime, to prepare for his defence, and to obtain the
Vol. I. Z
178
process of the court, for the purpose of enabUng htiii so to dO*
This practice is as convenient, and as consonant to justice,
as it is to humanity. It prevents, in a great nieasUrev those
delays which are never desirable, which frequendy occasion the
loss of testimony, and which are often oppressive. That would
be the inevttable consequence of withholding from a prisoner the
process of the court, until the indictment against him was found
by the grand jury. The right of an accused person to the pro*
cess of the court, to compel the attendance of witnesses, seems to
follow, necessarily, from the right to examine those witnesses; and,
wherever the right exists, it would be reasonable that it should
be accompanied with the means of rendering it effectual. It is
not doubted, that a person, who appears before a court under a
recognisance, must expect that a bill will be preferred against
him, or that a question, concerning the continuance of the recog-
nisance, will be brought before the court. In the first .event, he
has the right, and it is perhaps his duty, to prepare for his de«
fence at the trial. In the second event, it wiU not be denied, that
he possesses the right to examine witnesses on the question of
continuing his recognisance. In either case, it would seem rea*
sonable, that he should be entitled to the process of the court, to
procure the attendance of his witnesses. The genius and charac-
ter of our laws and usages are friendly, not to condemnation at
all events, but to a fair and impartial trial; and they conse-
quently allow to the accused the right of preparing the means to
secure such a trial. The objection, that the attorney may refuse to
proceed at this time, and that no day is fixed for the trial, if he
should proceed, presents no real difficulty. It would be a very
insufficient excuse to a prisoner, who had failed to prepare fop his
trial, to say, that he was not certain the attorney would proceed
against him. Had the indictment been found at the first term, it
would have been in some measure uncertain, whether there would
have been a trial at this, and still more uncertain on what day
that trial would take place ; yet, subpoenas would have issued re«
tumableto the first day of the term; and if, after its commence-
ment, other subpoenas had been required, they would have issued
returnable as the court might direct. In fact, all process, to which
^the law has affixed no certain return day, is made returnable at
the discretion of the court.
General principles, then, and general practice are in favour of
the right of every accused person, so soon as his case is in court,
to prepare for his defence, and to receive the aid of the process
of the court to compel the attendance of his witnesses.
The constitution and laws of the United States will now be
considered, for the purpose of ascertaining how they bear upon
the question. The eighth amendment to the constitution gives to
the accused, ^^ m all criminal prosecutions, a right to a speedy
179
and public trial, and to compulsory process for obtaining wit-
nesses in his favour." The right, given by tlus article, must be
deemed sacred by the courts, and the article should be so con*
strued as to be something more than a dead letter. What can
more effectually elude the rightto a speedy trial than the declarar
ticm, that the accused shall be dbaUed from preparing for it, un-
til an indictment shall be found against him? It is certainly much
more in the true spirit of the provision, which secures to the ac*
cused a speedy trial, that he should have the benefit of the
Erovision, which entitles him to compulsory process, as soon as
e is brought into court.
This observation derives additional force from a consideration
of the manner in which this subject has been contemplated by con-
gress. It is obviously the intenuon of the national legislature, that,
in all capital cases, the accused lAiall be entitled to process btfore
indictment found. The words of the law are, ^^ and ever>' such
person or persons accused or indicted of the crimes afortsaid,
{that is of treason or any other capital offence) shall be allowed
and admitted in his said defence, to make any proof that he or
they can produce, by lawful witness or witnesses, and shall have
the like process of the court where he or. they shall be tried, to
compel his or their witnesses to appear at his or their trial, as is
usually granted to compel witnesses to appear on the prosecution
against them."
This provision is made for persons accused or indicted. From
the imperfection of human language, it frequently happens, that
sentences, which ought to be the most explicit,are of doubtful con-
struction; and in this case the words, *^ accused or indicted," may
be construed to be synonymous, to describe a person in the same
situation, or to apply to different stages of the prosecution. The
word or may be taken in a conjunctive (M? a disjunctive sense. A
reason for understanding them in the latter sense is furnished
by the section itself. It commences with declaring, that any person,
who shall be accused and indicted of treason, shall have a copy
of the indictment, and at least thi^e days before his trial. This
right is obviously to be enjoyed after an indictment, and there-
fore the wonls are ^^ accused and indicted." So, with respect to
the subsequent dause, which authorises a party to make his de-
fence, and directs the court, on his application, to assign him coun-
seL The words relate to any person accused and indicted. But,
when the section proceeds to authorise the compulsory process for
witnesses, the phraseology is changed. Th^ words are, " and every
such person or persons accused or indicted," &g. thereby adapting
die expression to the situation of an accused person both before
and after hidictroent. It is to be remarked, too, that the person, so
^Mxuaed or indicted, is to have *^ the likt» process tt> compel his
or thehr witnesses to appear at his or their trial, as is usually
180
granted to compel witnesses to appear on the prosecution against
him." The fair construction of this clause would seem to be,
that, with respect to the means of compelling the attendance d[
witnesses to be furnished by the court, the prosecution and de*
fence are placed by the law on equal ground. The right of the
prosecutor to take out subpcenas, or to avail himself of the aid of
the courts in any stage of the proceedings previous to the indict-
ment, is not controverted. This act of congress, it is true, ap[^ie8
only to capital cases; but persons, charged with offences not ca-
pital, have a constitutional and a legal right to examine their testi-
mony and this act ought to be considered as declaratory of the
common law in cases where this constitutional right exists.
Upon immemorial usage, then, and upon what is deemed a
sound construction of the constitution and law of the land, the
court is of opinion, 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 wimesses. Much delay and much inconvenience may be
avoided by this construction; no mischief, which is perceived,
can be produced by it. The process would only issue when,
according to the ordinary course of proceeding, the indictment
would be tried at the term to which the subpcena is made return-
able; so that it becomes incumbent on the accused to be ready
for his trial at that term.
This point being disposed cf, it remains to inquire, whether a
subpoena duces tecum can be directed to the president of the
United States, and whether it ought to be directed in this case i
* This question, originally, consisted of two parts. It was at first
doubted, whether a subpcena could issue, in any case, to the
chief magistrate of the nation ; and if it could, whether that
subpoena could do more than direct his personal attendance:
whether it could direct him to bring with him a paper which
was to constitute the gist of his testimony. Whik the argu-
ment was opening, the attorney for the United States avowed
his ppinion, that a general subpoena might issue to the president;
but not a subpoena duces tecum. This terminated the argument on
that part of tne question. The court, however, has thought it ne-
cessary to state briefly the foundation of its opinioh, that such a
subpoena may issue.
In the provisions of the constitution, and of the statute, which
give to the accused a right to the compulsory process of the
court, there is no exception whatever. The obligation, therefore,
of those provisicHis is general; and it would seem, that no per-
son could claim an exemption iirom them, but one who would
not be a witness. At any rate, if an exception to the general
principle exist, it must be looked for in the law of evidence.
The exceptions furnished by tjfie law of evidence, (with one
only reservation) so far as they are personal, are of those
181
only whose testimony could not be received. The single re«
servation, alluded to, is the case of the king. Although he may,
perhaps, give testimony, it is said to be incompatible with lus
dieni^ to appear under the process of the court. Of the many
pomts of difference which exist between the first magistrate in
England and the first magistrate of the United States, in respect
to ^e personal dignity conferred on them, by the constitutions of
their respective naticms, the court will only select and mention
two. It is a principle of the English constitution, that the king
can do no wrong, that no blame can be imputed to him, that he
cannot be named in debate.
By the constitution of the United States, the president, as well
as every other officer of the government, may be impeached,
and may be removed from office on high crimes and misde*
meanors.
By the constitution of Great Britain, the crown is hereditary,
and the monarch can never be a subject.
By that of the United States, the president is elected from
the mass of the people, and, on the expiration of the time for
which he is elected, returns to the mass of the people again.
How essentially this difference of circumstances must vary the
policy of the laws of the two countries, in reference to the per-'
sonal dignity of the executive chief, will be perceived by every
person. In this respect, the first magistrate of the Union may
more properly be likened to the first magistrate of a state; at
any rate, under the former confederation ; and it is not known
ever to have been doubted, but that the chief magistrate of a state
might be served with a subpoena ad testificandum.
If, in any court of the United States, it has ever been decided,
that a subpoena cannot issue to the president, that decision is un«
known to this court.
If, upon any principle, 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 de*
mand 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 subpoena, and would rather constitute a reason for
not obeying the process of the court, than a reason aeainst its
being issued. In point of fact it cannot be doubted, that me people
of England have the same interest in the service of the execu*
tive government, that is, of the cabinet counsel, that the Ameri*
can people have in the service of the executive of the United
States, and that their duties are as arduous and as unremitting.
Yet it has never been alleged, that a subpoena might not be di-
rected to them. It cannot be denied, that, to issue a subpoena to a
person, filling the exalted station of the chief magistrate, is a du^
which would be dispensed with much more cheerfully than it
182
would be performed; but, if it be a duty, the court can have no
choice in the case*
If, then, as is admitted by the counsel for the .United States, a
subpcena may issue to the president, the accused is entitled to it
of course; and, whatever difference may exist with respect to the
power to compel the same obedience to the process, as if it had
been directed to a private citia^en, there exists no difienrnce widi
respect to the right to obtain it. The guard, furnished to this
high officer, to protect him from being harassed by vexatious
and unnecessary subpanas, is to be looked for in the conduct of
a court after those subpoenas have issued ; not in any circum«
stance which is to precede their being issued. If, in being sum*
moned to give his personsd attendance to testify, the law does
not discriminate between the president and a private citizen,
what foundation is there for the opinion, that this difierence is
created by the circumstance, that his testimony depends on a
paper in his possession, not on facts which have 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
subpoena €tuce8 tecum^ then, may issue to any person to whom an
ordinary subpoena may issue, directing him to bring any paper
of which the party praying it has a right to avail himself as tes-
timony; if, indeed, that be the necessary process for obtaining xbit
view of such paper.
When this subject was suddenly introduced, the court felt
some doubt concerning the propriety of directing a subpoena to the
chief magistrate, and some doubt, also, concerning the propriety
of directing any paper in his possession, not public in its natuire,
to be exhibited in court. The impression, that the questions
which might arise, iu consequence of such process, were more pro-
per for discussion on the return of die process than on its issuing,
was then strong on the mindof the judges; but, the circumspec*
tion with which. they would take any step, which would, in any
manner, relate to that high personage, prevented their yielding
readily to those impressions, and induced the request, that those
points, if not admitted, might be argued. The result of that
argument is a confirmation of the impression originally enter-
tained. The court can perceive no legal objection to issuing a
subpoena duces tecum to any person whatever, provided, the case
be such as to justify the process*
This is said to be a motion to the discretion of the court.
This is true. But a motion to it^ discretion is a motion, not to
its inclinationy but to its ju£^ment; and its judgment is to be
guided by sound legal principles. A subpcena duces tecum varies
from an ordinary subpoena only in this; that a witness is sum-
1
183
inooed for the purpose of bringing with him a paper in bis cus*
tody* In some of our sister states, whose system of j urtsprudence
is erected on the same foundation with our own, this process, we
leam, issues of course. In this state it issues, not absolutely of
course, but with leave of the court* No case, however, exists,
as is believed, in which die motion has been founded on an afii*
davit, in which it has been denied, or in which it has been op-
posed* It has been truly observed, that the opposite party can,
regularly, take no more interest in the awarding a subpoena duccM
tecum than in the awarding an ordinary subpoena* In either
case, he may object to any delay, the grant of which, may be
implied in granting the subpoena; but he can no more object,
regularly, to the legal means of obtaining testimony, which exists
in the mind, than in the papers of the person who may be sum*
moned* If no inconvenience can be sustained, by the opposite
party, he can only oppose the motion in the character of an ami*
cus curis; to prevent the court from making an improper order,
or from burthening some officer, by compelling an unnecessary
attendance. This court would certainly be very unwilling to say,
that, upon fair construction, the constitutional and legal right to
obtain its process, to compel the attendance of witnesses, does
not extend to their bringing with them such papers sts may be
material in the defence* The literal distinction, which exists be-
tween the cases, is too much attenuated to be countenanced in
the tribunals of a just and humane nation* If, then, the subpoena
be issued, without inquiry into the manner of its application, it
would seem to trench on the privileges which the constitution
extends to the accused; it would seem to reduce his means of
defence within narrower limits than is designed by the funda-
mental law of our country, if an overstrained rigour should be
used with respect to his right to apply for papers deemed by
himself to be material* In the one case, the accuflfed is made
the absolute judge of the testimony to be summoned; if, in the
other, he is not a judge, absolutely, for himself, his judgment
oi^t to be controlled only so far as it is apparent that he means
to exercise his privileges, not really in his own defence, but for
purposes which the court ought to discountenance* The coiut
would not lend its aid to motions obviously designed to manifest
disrespect to the government; but the court has no rig^t to refuse
its aid to motions for papers to which the accused may be en-
tided, and which may be material in his defence*
These observations are made to show the nature of the dis-
cretion which may be exercised* If it be apparent, that the papers
are irreladve to the case; or that, for state res&ons, they cannot be
introduced into the defence, the subpoena duces tecum would be
useless* But, if this be not iqpparent ; if they may be important in
the defence; if they may be safely read at the trial ; would it not
184
be a blot in the page, which records the judicial proceedings of
this country, if, in a case of such serious import as this, the ac-
cused should be denied the use of them?
The counsel for the United States take a very different view
of the subject; and insist, that a motion for process to obtain tes^
timony should be supported by the same full and explicit proof
of the nature and application of that testimony, which would be
required on a motion, which would delay public justice; which
would arrest the ordinary course of proceeding; or would, in any
other manner affect the rights of the opposite party. In favour
of this position has been urged the opinion of one, whose loss,
as a friend, and as a judge, I sincerely deplore; whose worth I
feel, and whose authority I shall at all times greatly respect. If
his opinion were really opposed to mine, I should certainly re-
vise, deliberately revise, the judgment I had formed: but I
perceive no such opposition.
In the trials of Smith and Ogden, the court, in which judge
Patterson presided, required a special affidavit in support of a
motion, made by the counsel for the accused, for a continuance
and for an attachment against witnesses who had been subpoenaed
and had failed to attend.
Had this requisition of a special affidavit been made as well
a foundation for an attachment as for a. continuance, the cases
would not have been parallel; because, the attachment was con«
sidered by the counsel. for the prosecution merely as a mean of
punishing the contempt, and a court might certainly require
stronger testimony to induce them to punish a contempt, than
would be required to lend its aid to a party in order to procure
evidence in a cause. But the proof furnished by the case is most
conckisive, that the special statements of the affidavit were re-
quired solely on account of the continuance.
Although the counsel for the United States considered the mo-
tion, for an attachment, merely as a mode of punishing for con«
tempt, the counsel for Smith and Ogden considered it as com*
pubory process to bring in a witness, and moved a continuance
until they could have the benefit of this process. The continu-
ance was to arrest the ordinary course of justice; and, therefore,
the court required a special affidavit, showing the materiality of
the testimony before this continuance could be granted. Prima
facie evidence could not apply to the case; and there was an
additional reason for a special affidavit. The object of this spe-
cial statement was expressly said to be for a continuance. Golden
proceeded: ^ The present application is to put off the cause on
account of the absence of witnesses, whose testimony the defen-
dant alleges is material for his defence, and who have disobeyed
the ordinary process of the court. In compliance widi the inti-
mation from the bench, yesterday, the defendant has disclosed.
185
by the affidavit which I have just read, the points to which 4|p
expects the witnesses who have been summoned will testify.
**' If the court cannot, or will not, issue compulsory process, to
bring in the witnesses who are the dbjects of ttus application, tliea
the cause will not be postponed*
*^ Or, if it appear to the court, that the matter disclosed by the
affidavit might not be given in evidence, if the witnesses were now
here, then we cannot expect that our motion will be successful.
For it would be absurd to suppose, that the court will postpone
the trial on account of the absence of wimesses whom they can-
not compel to appear, and of whose voluntary attendance there
is too much reason to despair; or, on accoimt of the absence of
witnesses who, if they were before the court, could not be heard
on the trial." (See page 12 of the Trials of Smith and Ogden.)
This argument states, unequivocally, the purpose for which a
special affidavit was required.
The counsel for the United States considered the subject in the
same light. After exhibiting an affidavit for the purpose of show-
ing, that the witnesses could not probably possess any material in*
formation, Mr. Standford said, ^ It was decided by the court yes-
terday, that it was incumbent on the defendant, in order to en-
tide himself to a postponement of the trial, on account of the
absence of these witnesses, to show in what respect they are ma-
terial for his defence. It was the opinion of the court, that the
general affidavit, in common form, would not be snffident for this
purpose; but, that the particular facts, expected from the wit-
nesses, must be disclosed, in order that the court might, upon
those (SLCXA, judge of the propriety of granting the postponement''
(p. 27.)
The court frequendy treated the subject so as to show the opi-
nion, that the special affidavit was reqtiired only on account of the
continuance ; but, what is conclusive on this point is, that after de-
ciding the testimony of the wimesses to be such as could hot be
offered to the jury, judge Patterson was of opinion, that a rule^
to show cause why an attachment should not issue, <ougbt to be
granted. He could not have required the materiali^ of the wit-
ness to be shown on a motion, the success of which did not, ia
his opinion, in any degree depend on that materialitv ; and which
he granted after deciding the testimony to -be sucn as the jiuy
ought not to hear. It is, then, most apparait, that the opini<Mi of
judge Patterson has been misunderstood, and that no mference
can possibly be drawn fipm it, opposed to the principle which
has been laid down by the court. That prmciple will therefort
be applied to the present motion.
The first paper required is the letter of general Wilkinson^
which was referred to in the message of the president to con-
gress. The application of that letter to the case is shown, bjr
Vol. I. 2 A
186
m
t
thb terms in which the communication was made. It is a statie-
ment of the conduct of the accused, made by the person who is
declared to be the essential witness against him. I'he order for
producing this letter is opposed,
First, Because it is not material to the defence. It is a principle,
universally acknowledged, that a party has a right to oppose to
the testimony of any witness against him, the declarations which
that witness has made, at other times, on the same subject. If he
possesses this right, he must bring forward proof of those decla-
rations. This proof must be obtained before he knows, positively,
what the witness will say ; for, if he waits until the witness has
been heard at the trial, it is too late to meet him with his former
declarations. Those former declarations, therefore, constitute a
mass of testimony, which a party has a right to obtain by way of
precaution, and the positive necessity of which can only be de-
cided at the trial.
It is with some surprise an argument was heard from the bar,
insinuating, that the award of a subpoena, on this ground, gave
the countenance of the court to suspicions aflFecting the veracity
of a witness, who is to appear on the part of the United States.
This observation could not have been considered. In contests of
this description, the court takes no part; the court has no right
to take a part. Every person may give in evidence, testimony
such as is stated in this case. What would be the feelings
of the prosecutor, if, in this case, the accused should pro-
duce a witness completely exculpating himself, and the attorney
for the United States should be arrested in his attempt to prove
what the same witness had said upon a former occasion, by a de-
claration from the bench, that such an attempt could not be per-
mitted, because it would imply a suspicion in the court, that the
witness had not spoken the truth? Respecting so unjustifiable an
interposition but one opinion would be formed
The second objection is, that the letter contains matter which
ought not to be disclosed.
That there may h€ matter, the production of which the court
would not require, is certain ; but that, in a capital case, the accu-
sed ought, in some form, to have the benefit of it, if it were re-
ally essential to his defence, is a position which the court would
very reluctantly deny. It ought «not to be believed, that the de-
partment, which superintends prosecutions in criminal cases,
would be inclined to withhold it. What ought to be done, under
such circumstances, presents a delicate question, the discussion of
which, it is hoped^ will never be rendered necessary in this coun*
tiy. \At present it need only be said, that the question does not
occur at this time. There is certainly nothing before the court
which shows, that the letter in question contains any matter the
disclosure of which would endanger the public safety. If it
187
does contain such matter, the fact may appear before the disclo-
sure is made. If it does contain any matter, which it would be
imprudent to disclose, which it is not the wish of the executive
to disclose; such matter, if it be not inunediately and essentiallji
applicable to the point, will, of course, be suppressed. It is not
easy to conceive, that so much of the letter as relates to the con-
duct of the accused can be a subject of delicacy with the pre-
sident. Every thing of this kind, however, will have its due con-
sideration, on the return of the subpcena.
Thirdly, It has been alleged, that a copy may be received in-
stead of the original, and the act of congress has been cited Ih
support of this proposition.
This argument presupposes, that the letter required is a docu-
ment filed in the department of state, the reverse of which may
be and most probably is the fact. Letters, addressed to the pre-
sident, are most usually retained by himself. They do not belong
to any of the departments. But, were the fact otherwise, a copy
might not answer the purpose. The copy would not be superior
to the original, and the original itself would not be admitted, if
denied, without proof that it was in the hand writing of the wit-
ness. Suppose the case put at the bar of an indictment on this
letter for a libel, and, on its production, it should appear not to be
in the hand writing of the person indicted. Would its being de-
posited in the department of state make it his writing, or subject
him to the consequence of having written it I Certainly not. For
the purpose, then, of showing the letter to have been written by
a particular person, the original must be produced, and a copy
could not be admitted. On the confidential nature of thislettef^
much has been said at the bar, and authorities have been produ-
ced, which appear to be conclusive. Had its contents been orally
communicated, the person, to whom the communications were
made, could not have excus^ himself from detailing them, so
far as they might be deemed essential in the defence. Their
^ing in writing gives no additional sanctity; the only difference
produced by the circumstance is, that the contents of the paper
must b^ proved by the paper itself, not by the recollection of the
witness.
Much has been said about the disrespect to the chief magis-
trate, which is implied by this motion, and by such a decision of
it as the law is believed to require.
These observations will be very truly answered by the deda-r
ration, that this court feels many, perhaps, peculiar motives, for
manifesting as guarded a respect for the chief magistrate of
the Union as is compatible with its official duties. To go be-
vond these would exhibit a conduct, which wcAild deserve some
other appellation th^n the term respect; ^
188
It IS not for the court to anticipate the event of the present
prosecution. Should it terminate as is expected on the part ot
the United States, all those, whp are concerned in it, should
certainly regret, that a paper, which the accused believed to be
essentisd to his defence, which may, for aught that now ap-
pears, be essential, had been withheld from him. I will not say,
that this circumstance would, in any degree, tarnish the reputa-
tion of the government; but I will say, that it would justly tar-
nish the reputation of the court, which had given its sanction to
its being withheld* Might I be permitted to utter one senti-
ment, with respect to myself, it would be to deplore, most ear-
nestly, the occasion which should compel me to look back on
any part of my official conduct with so much self-reproach as I
should feel, could I declare, on the information now possessed,
that the accused is not entided to the letter in question, if it
should be really important to him.
The propriety of requiring the answer to this letter is more
questionable. It is alleged, that it most probably communi-
cates orders showing the situation of this country with Spain,
which will be important on the misdemeanor. If it contain
matter not essential to the defence, and the disclosure be un-
pleasant to the executive, it certainly ought not to be disclosed.'
This is a point which will appear on the return. The demand
of the orders, which have been issued, and whi^h have been, as
is alleged, published in the Natchez gazette, is by no means
unusual. Such documents have often been produced in the
courts of the United States, and the courts of England. If
they contain matter interesting to the nation, the concealment
of which is required by the public safety, that matter will ap-
pear upon the return. If they do not, and are material, they
may be exhibited.
It is said, they cannot be material,, because they cannot jus-
tify any unlawful resistance, whicjh may have been employed or
meditated by the accused.
Were this admitted, and were it also admitted, that such re-
sistance would amount to treason, the orders might still'be ma-
terial; because, they might tend to weaken the endeavour to
connect such overt act with any overt act of which this court
may take cognisance. The court, however, is rather inclined
to the opinion, that the subpoena, in such case, ought to be di-
rected to the head of the department, in whose custody the
orders are. The court must suppose, that the letter of the se-
cretary of the n^vy, which has been stated, by the attorney for
tlie United States, to xefer the counsel for the prisoner to his
legal remedy for the copies he desired, alluded to such a mo-
tion as is now made. "
The affidavit on which the motion is grounded his not been
189
noticed, tt is believed, that such a subpoena, as is asked, ought
to issue, if there exist any reason for supposing, that the testi-
mony may be material, and ought to be admitted* It is only
because the subpoena is to those who administer the govern-
ment of this country, that sucli an affidavit was required
as would furnish probable cause to believe, diat the testimony
was desired for the real purposes of defence, and not for such
as this court will for ever discountenance.
When the chief justice had concluded his opinion, Mr.
]^AC Re A addressed the court to the following effect:
I hope, sir, that I have misunderstood an expression, which
has just escaped from your honour; but the opinions of those
gentlemen, who are near me, completely confirm my own con*
cepticms. Your honour has declared, if I mistake not, that ^^if
the present prosecution terminate as is wished, on the part of
the United States." I hope, sir, that nothing has appeared in
my conduct, nothing in the conduct of the gentlemen who are
associated with me on the present occasion, and nothing in the
conduct of the government, to produce s'uch a conviction in the
breast of the court. Permit me, sir, to assure this court, if we
feel any sentiment at all, that it is one of a very different de**
scription. The impression which has been thus conveyed by
the court, that we not only wished to have Aaron Burr accused,
but that we wished to convict him, is completely abhorrent to
our feelings. We trust, that it has rather accidentally fallen
from the pen of your honour, than that it is your deliberate
opinion* We wish for nothing, sir, but a fair and competent in-
vestigation of this case. It is far from our wishes, that Aaron
Burr should be convicted, but upon the most satisfactory evi-
dence. And let me assure this court, that nothing would more
severely wound my feelings, than if you or any other man
should suppose it possible, that I myself, or the gendemen with
whom I am associated, or the government which we have the
honour to represent, should at all events, desire the convicticm
of the prisoner.
The Chief Justice replied, tlmt it was not his intention to
insinuate, that the attomies for the prosecution, or that the ad-
ministration, had ever wished the conviction of colonel Burr,
whether he was guilty or innocent ; that his assertion was this :
^^ Gentlemen had so often, and so uniformlyasserted, that co-
lonel Burr was guilty, and they had so often repeated it before
the testimony was perceived, on which that guilt could alone
be substantiated, that it appeared to him probable, that they
were not indifferent on the subject."
Mr. Mac Re a begged leave to ppint out to the court a con^
190
siderable difference between the opinions and wishes of the
counsel for the prosecution; that from the testimony which
they had examined, they thought it extremely probable, that
Aaron Burr was really guilty; but that this was very different
iVom wishing to find him guilty, or to convict him at all
events.
Mr. Hay observed, that his own conscience was satisfied
with the course which he had pursued in this business; that he
should attempt to secure the same sentiment by his future de«
portment; and, provided he enjoyed that satisfaction, he was
completely indifferent to the opmion of others ; and he should
certainly pursue his own judgment. He asked, whether he
might not send up the witnesses to the grand jury?
' Mr. Burr then pressed upon the court the necessity of giv-
ing the supplemental charge ; that it would be of considerable
benefit in instructing the jury to separate what was proper in
the evidence from what was improper; that if the charge was
not delivered for several days, the jury might, in the mean
time, be receiving very false impressions; and that their minds
might be so completely involved in these impressions, that it
would be impossible for them, to separate them from their de-
cisions, even after the delivery of the charge. He conceived
that the court ought either to prevent the witnesses from go-
ing to the grand jury, or to deliver its supplemental charge.
The Chief Justice replied, that on Monday morning he
would deliver the charge, if all the necessary preliminary
points could be settled.
Mr. Hay then requested the clerk to swear four of the wit-
nesses: Thomas Truxtun, William Eaton, Benjamin Stoddert,
.and Stephen Decatur, who were accordingly sworn.
Mr. Burr hoped, that the court would immediately take up
the supplemental charge to the jury. What was the objection
which the attorney for the United States has submitted to your
honour, and on which you seemed to entertain some doubts?
Chief Justice. — It is, \*hether the statute of Edward VI.
is now in force in this country.
Mr. Randolph. — We are ready on that point, sir.
The clerk then proceeded to call four other witnesses to the
bpok ; but when Erick Bollman appeared, Mr. Hay addressed
the court to the following effect:
Before Mr. Bollman is sworn, I must inform the court of a
particular, and not an immaterial circumstance. He, sir, has
made a full communication to the government of the plans,
the designs, and views of Aafon Burr. As these coramu*
191
nicaltions might criminate doctor Bollman before the grand
jury, the president of the United States has communicated
to me this pardon (holding it in his hands) which I have alrea*
dy offered to doctor Bollman. He received it in a very hesi-
tating manner; and I think informed me, that he knew not
whether he should or should not accept it. He took it from
me, however, as he informed me to take the advice of counsel.
He returned it in the same hesitating manner; he would neither
positively accept nor refuse it. My own opinion is, that doc-
tor Bollman, under these circumstances, cannot possibly cri-
minate himself. This pardon will completely exonerate him
from all the penalties of the law. I believe his evidence to be
extremely material. In the presence of this court, I offer this
pardon to him, and if he refuses, I shall deposit it with the
clerk for his use. Will you (addressing himself to doctor
Bollman) accept this pardon?
Doctor Bollman. — No. I will not, sir.
Mr. Hay then observed, that doctor Bollman must be car-
ried up to the grand jury with an intimation, that he had been
pardoned.
Mr. Martin. — It has always been doctor Bollman's inten-
tion to refuse this pardon; but he has not positively refused' it
before, because he wished to have this opportunity of publicly
rejecting it.
Several other witnesses were sworn.
Mr. Martin did hot suppose, that the pardon was real or
effectual ; if he made any confessions before the grand jury,
they might find an indictment against him, which would be
valid, notwithstanding the pardon ; that the pardon could not
be effectual before it was pleaded to an indictment in open
court.
Mr. Hay inquired, whether doctor Bollman might not go to
the grand jury?
. The Chief Justice suggested, that it would be better to
settle the question about the validity of the pardon before he
was sent to the grand jury.
Mr. Hay. — I am anxious to introduce the evidence before
the grand jury in a chronological order, and the suspension of
doctor Bollman's testimony will make a chasm in my arrange-
ment. He added, that however it was not very important whe-
ther he was sent now or some time hence to the grand jury.
Mr. Martin. — Doctor Bollman is not pardoned; and no
man is bound to criminate himself*
192
The Chief Justici required his authorities.
Mr. Martin. — I am prepared to show, that a party even
{possessed of a pardon is still indictable by the grand jury, un-
ess he has pleaded it in court.
The other witnesses were sent to the grand jury, and doctor
BoUman was suspended.
Four other witnesses were then sworn.
Mr. Hat. — I again propose to send doctor BoUman to the
grand jury.
At this time the marshal entered, and Mr. Hay inform-
ed the court, that the grand jury had sent for the article
of the constitution and the laws of congress relating to trea-
son, and the law relating to the misdemeanor.
Jacob Dunbaugh was sworn and sent to the grand jury.
Some desultory conversation here ensued between the bar
and the court respecting doctor BoUman, ^hen Mr. Hay ad-
dressed the opposite counsel: Are youthen willing to hear doc-
tor BoUman indicted? Take care in what an awful condition
yo!4 are pladng this gendrman.
Mr. Martin.— ^Doctor BoUman, sir, has lived too long to
be alarmed by such menaces. He is a man of too much
honour to trust his reputation to the course which you prescribe
for him.
The Chief Justice.— There can be no question but doctor
BoUman can go up to the jury: but the question is, whether he
is pardoned or not? If the executive should refuse to pardon
him, he is certainly not pardoned.
Mr. Martin. — But there can be no doubt, if he chooses to
decline his pardon, that he stands in the same situation with
every other witness, who cannot be forced to criminate him-
self.
Some desultory conversation here ensued, when Mr. Hay
observed, that he should extremely regret the loss of Dr. BoU-
man^s testimony. He believed it to be material. He trusted,
that he should obtain it, however reluctantly given. The court
would perceive, that doctor BoUman now possessed so much
2eal, as even to encounter the risk of an indictment for trea-
son. Whether he should appear before the grand jury, under
the circumstance of a pardon being annexed to his name, might
hereafter become the object of a distinct inquiry. In the mean
time, he might go up without any such notification.
The counsel of Mr. Burr acquiesced.
Cnrsp Justice.— -Whetbei' he be really pard6ned or not, I
cannot, at present, declare. I must take time to deliberate.
Mr. Hay — Categorically then I ask you^ Mr. BoUman,
do you accept your pardon?
Mr. BoLLMAN.— I have already answered that question se*
vend times. I say no. I repeat, that I would have refused it
before, but that I wished this oppoitunity of publicly declar-
ing it.
Mr. Hay.-— If the grand jury have any doubts about the qnes*
tions that they put to doctor Bollman, they can apply to the
court for instructions. I assert, sir, that Mr. Bollman is a par-
doned man. I wish the opposite counsel to prove that he is
not. I therefore move, sir, that he be sent up to the grand ju-
ry, certified by you, that he is pardoned. I make this motion,
that gentlemen, who wish to discuss the question, may have an
opportunity of adducing their arguments.
Mr. Williams, counsel for Mr. Bollman.-— >There are three
questions to be decided. 1st, Whether a witness be bound to an-
swer any questions^ which tend to criminate himself, or afford a
clue to evidence for that purpose f 2d, The operation of a par-r
don, whether it change the question? but in this case, it having
been, refused, the court cannot notice it. 3d, Who is to be the
judge, the witness or the court, as to the propriety of answer-
ing the question ?
On the first question Mr. Williams laid down the following
propositions : 1st, The rule of law is, that no man shall be bound
to answer any question which shall accuse himself.-*-! Mac
Nally's £v. 256. 2 Haw. c. 46. 2d, He shall not be bound to
answer any questions which shall accuse himself of a misde-
meanor.— 1 Mac Nal. 256. 3d, He shall not be called upon to
calumniate himself. — 1 Mac Nal; £56. 2 State Trials, 822. 101 7
to 1038, Tabsborough's case. 4th, He is not to defame him-
self.— 1 Mac Nal. 256. 258. 2Stote Trials, 439. 5th, Not to an-
swer insnaring questions.-— Mac Nal. 256. 6th, To ask a man
if he is a Roman catholic is not permitted.— Mac Nal. 257.
9 State Trials, 414. 2 Dougl. 593. 7th, Not bound to answer
any question which tends to criminate himself. — Mac Nal. 257.
4 State Trials, 605, 606. 8th, The case of Gooscly in this
court, upon the trial of Reynolds; he was called as a witness,
but not compelled to criminate himself, — had been acquitted the
day before by the grand jury. So 1 Black. Rep. 27.
As to the second question, the rule of law is the same, eveiy^
if the man be pardoned. 1st, A witness, although pardoned,
shall not be bound to calumniate himself, for the pardon
having placed him in statu quo, no question shall be askcJ4
Vol. I. 2 B
W4
him>, which tends to make him contemptible, or do away the
benefit of the pardon. — 1 Mac Nal. 256. 2 Sute Trials, 822.
1035. If doctor BoUman were bound to acknowledge him-
self acquainted with any treason, he was guilty of a very high
misdemeanor, and therefore it would do away any benefit from
the pardoil* But the court cannot notice a pardon, unless it be
a pardon by statute: for if under great seal and accepted,
yet it would be error in the court to allow it not pleaded. — 2
Hawk. ch. 37, sec. 59. 64, 65. 5 Bac. 294. If party only entK
tied upon pleading it, then if he refuse, court cannot tsike no-
tice of iu Here party refusing to accept, court must say
that he is not pardoned: for until it is pleaded, ^arty liable, is
to be punished. For if he plead not guilty, the court will not
allow him to plead it afterwards. — 2 Hawk. ch. 37, sec. 59.
Bac. 294. As to the third question, the witness must be the
judge of necessity : 1st, Because he can only know what the an-
swer is, and the bearing it will have. 2d, If the court do decide,
they must know what would be the answer ; and to get that
from the witness would criminate himself, which I have shown
he is not bound' to do.
If it be objected, that by this means, no witness would give
evidence against the accused, it may be answ;ered, 1st, The re-
fusal is upon oath, because he affirms, that to answer it would
be to criminate himself. 2d, Tou have the same obligation on
him to answer that truly, as to speak truth upon any other sub-
ject. 3d, If he perjure himself, in that, he would certainly do
it to get clear of giving evidence against the accused. It is his
privilege not to answer any question having that tendency.
This rule is upon the following authorities : The court in a case,
in 1743, in 4 State Trials, 414, note, states, to wit, "If you think
it witt criminate yourself, you need not answer it." — 1 Mac
Nal. 257 — 8. It is put to the witness and not to the court,
because he knew what was to be the answer. If it be objected,
that nothing is evidence against him, which he may say on his
oath, the answer is, that it has been otherwise decided.— -2
Doug. 398.
Mr.. Martin would merely suggest a few additional autho-
rities. Among these were 5 Bac. p. 293. 2 Hawkins, ch. 57y
p. 59, 60. 65. Mr. Martin contended, that these authorities
demonstrated that there were two kinds of pardons in England i
one by parliament, and the other under the great seal. That the
first exempted an individual from the cognisance of the court
as to the particular crime for which he might stand charged i
but that the latter was no bar to a judicial prosecution ; and was
not indeed effectual, until it had been pleaded and allowed ia
Court* Mr. Martin also quoted an authority from Salkeld to
195
sheWfinc orroborationof Mr. Williams's position, that no wit-
ness, however exempted from the charge and necessity of cri«
min&ting himself; however responsible on that account to the
• law ; can be made to discredit himself by his own testimony.
Mr. Williams also quoted another authority, to the same
effect, from page 258 of Mac Nally^s Evidence.
Mr. Mac Re a. — It is extremely uncertain, sir, whether Mr.
BoUman will or will not answer the questions, which may be
propounded to him by the grand jury. If he be the very
honourable man, whom these gentlemen have represented, he
certainly will not refuse to answer. But if he do refuse, it
can only be upon the ground, that he is rcially a criminal, ft is
not, therefore, necessary for us to determine this point at the
present time. It is not necessary tp decide whether doctor
Bollman is or is not a pardoned man. We do sincerely hope,
that he will appear in the character of an honourable man ; and
not refuse to answer the interrogatories of the grand jury*
But if he should pursue that course, it will be then timeenough
for us to bring this discussion before the court.
Mr. Hat.— The proposition which I had stated, seems to
me to be so evident, as to require little argument. I consider
Dr. Bolljpan as a pardoned man; and therefore, I desired, that
the court should certify that fact for the instruction of the grand
jury. Gentlemen, however, seem themselves to concede the
very point for which we are contending. Why do they so
much expatiate on the consequences of a pardon, if they do not
consider that one has been already established? Why do they
wish to screen doctor Bollman, under the plea, that lie can*
not be made to defame himself, unless they consider him not
sufficiently secured by the possession of a pardon T As to the
effect of a pardon, it is a distinct question, on which the court
may hereafter instruct the grand jury. But at present, I wish
the court merely to certify, that he is pardoned.
Mn Martin replied, that if the gentleman had attended to
his argument, he would have seen, that most of his authorities
had borne upon the existence of a pardon, and not upon the
effects of one.
Chief Justice.— -Have any of you authorities to show
when the pardon operates ?
Mr. Martin. — Certainly from the time of pleading.
Chief Justice. — You mistake my question : suppose the
pardon to be lost, is it then valid?
Mr. Martin. — If it be proved, that he had pleaded it to am
196
indictment, I presume an exempUlicatiion of it would answer
every purpose-
As another reasoo, sir, why doctor Bcrflroan has refused this
pardon, permit me to say^ that it would be considered as an ad«
mission of guilt. Doctor Bollman does not admit that he has
b^en guilty. He does not consider a pardon as necessary
for an innocent man. Doctor Bollman, sir, knows what he
has to fear from the persecution of an angry government; but
he will brave it alL The man, who did so much to rescue
the marquis la Fayette fcom his- imprisonment, and who htm
been known at so many courts, bears too great a regard for lus
reputation, to wish to' have it sounded throughout Europe, that
he was compelled to abandon his honour through a fear of unjust
persecution/
After some desultory conversation, doctor Bollman was sent
up to the grand jury without any particular notificatiou. The
questions whether he bepardoned, and of course how far he may
be called upon to disclose all that he knows, are reserved for fu*
ture discussion and decision.
Mr. Hay requested leave to inform the grand jury that fa-
tigue alone had prevented general Wilkinson from attending them
on that day; but that he should appear before them on Monday.
Mr. BoTTs then observed, that there was one point in the sup^
plemental charge, which he wished to notice. In one part of the
charge, the clause of the constitution, relative to treason, is
quotedj; which clause recognises the necessity of two witnesses to
prove an overt act. In a subsequent part, there seems to be an
implication that one witness to an overt act is sufficient. How was
this seeming contrariety to be explained ?
Chief Justice. — Though the constitution declares that two
witnesses are necessary to produce conviction, yet it may not be
so strictly and absolutely necessary to authorise an indictment
being found a true bill. My present impression is, that though
there must be two witnesses to the general charge of treason,
yet that one witness may be sufficient to prove one act, and
another to prove another. Chief justice quoted the statute of Ed-
ward VI. The law books made this discrimination between a trial
and an indictment.
Mr. Hay. — There is one important question worthy of our
consideration. In your supplemental charge, sir, you have refer-
red to thd statute of Edward VI. But no such statute is now in
force here. A general law of the Virginia legislature, passed se-
veral years ago, Hnthe year ) swept off all the Bridsh
laws ; and then they set to re-enacting such as were congenial
with our form of government. But this statute was certainly in
197
fiorce ac the commencement of our revolution; afid dieque'stioa
is whether, if it were in force ihen^ it can be so considered notp*
Do gentlemen contend, that we are bound by a statute, which the
government has not adopted?
At the close of the court, the Chief Justice observed, that he
had explained the sense, in which the words, which had been re^
' marked on by Mr. Mac Rae, had been employed; that he had no
desire that they should remain in the written opinion ; that he
did not perceive that they were calculated to excite any feeling,
or liable to be so misunderstood^ but as it was not his intention
to convey the idea, that a conviction in any event, right or
wrong, was wished; and as that idea had been inferred, and
might hereafter be attached to them, by those who might see
the opinion without the explanatory words, he had expunged
them.
Some desultory conversation ensued; after which the court ad-
journed tiU Monday morning, eleven o'clock.
Monday, June 15di, 1807.
The court met according to adjournment.
General Wilkinson was sworn and sent to the grand jury,
with a notification that it would facilitate their inquiries if they
would examine him immediately.^
Some discussion took place, relative to the form of the oath
administered to the witnesses, before the grand jury; which at
length was agreed to be proper*
Mr. WicKHAM stated, that as the indictments were now
pending before the grand jury, it was necessary to recal to the
memory of the court, a circumstance which had been early sug«
gested, that a number of improper papers might be exhibited
before the grand jury, which ought to be prevented by the court;
that the attorney for the United States had pledged himself to
send up no papers which had not previously passed the inspec-
tion of the court : but it had since occurred to colonel Burr'5
counsel, that the witnesses diemselves might carry up such pa*
pers, which would defeat, and render of no avail, the promise of
the attorney; that it would be changing the duties of a wimess,
which were to give testimony, not to cany papers. Finding that
nothing coidd be done without an application to the court, Mr.
Wickham submitted to them, whether they ought not to instruct
the grand jury to receive no papers, but dirough the medium of
the court.
* On the appearance of the general in court, it was said that his coun-
tenance was calm, dignified, andcommatiding; while that of colonel Burr was
mailced by a haughty contempt
/
^
1
198
Mr. Hat said, that the witnesses would^not deliver any papers^
that he hoped the court would not act upon a mere suspicioni
that the witnesses would carry up improper papers; but that it
was extremely probable, that general Wilkinson, in delivering
his evidence before the grand jury, might find it necessary to re-
fer to certain letters, which he had received, and to papers and
documents, relative to these mj'sterious transactions, in order to
refresh his memory. That he would not produce these as distinct
and substantive evidence; but as so many private memoranda,
in order to strengthen his recollection of the history of those
transactions; and to enable him to give a more connected and
full narrative. Mr. Hay hoped, that after the splendid example
of patience, which the grand jury had displayed, they would not
be interrupted in the examination now commenced; but that he
had no objection to the court sending up by word, or by writ-
ing, such instructions to them on this s\ibjectas might be deem->
ed proper.
Mr. BoTTs confessed, that after what had passed, this oppo«
sition surprised him. On a former day, he understood that it
was agreed, that no papers should be sent to the grand jury, but
such as had been inspected by the court.
Mr. Hat begged leave to explain. He had promised, before
the arrival of general Wilkinson, to send up no papers without
the inspection of the court. That he had at that time, several
authenticated papers, and several affidavits ; and that he had aa
impression (though not a very decided one) that' they ought not
to be submitted to the grand jury. At that time gendemen seeip-
ed to apprehend, that certain papers and cyphered letters were
to be sent up to die grand jury, without any previous motion*
He had promised, and he would still pledge himself, to avoid
this course. But it might happen that genei^ Wilkinson had va-
rious papers to connect, explain, and enlarge his narrative. If
general Wilkinson had brought these p^ers from New-Orleans,
and now produced them before the grand jury, in order to refresh
his memory, and enable him to explain, and amplify his own evi-
dence, it would be correct; and no departure from his word, to
which he had substantially adhered. He hoped, therefore, that
gendemen would not accuse him of a breach of faith, and that Mr.
Botts would withdraw his expression of surprise.
Mr. BoTTS. — My surprise continues. I believe the attorney
for the United States is incapable of any thing like a wilful
breach of promise; but while I am willing to admit his intelli-
gence, fairness and honour, I will say, without intending, and I
hope without seeming to cast a reproach upon a character, whose
head and heart are inferior to none, that a strong bias has stolen
op that gendeman's mind, which ought to be vigilantly waK:hed.
199
He was stiO' surprised at the gentleman's proceedings, becamse
the very principle which he supports as to the papers, would go to
prevent the introduction of witnesses before the grand jury. Pa-
pers, he admits, are not proper to go before the jury; and there-
fore, if witnesses are to carry them, they themselves oug^t not
to go. If Mr. Hay were called before the jury, he would pro-
duce no papers but what had passed through the court. But Mr.
Hay is not the only prosecutor in this business. There is another
equally actfve, and more deeply concerned. Mr. Hay admits^
that this zealous prosecutor may produce his papers before the
jury. If he merely produce papers to refresh his memory, any
instruction which may go from the court, will be perfecdy inncf^
cent in its effects; but it is possible that such an instruction may
be necessary to repress die introduction of very improper papers,
which he might hope to convey to the multitude abroad, through
the channel of the grand jury. We are asked, why we suppose,
that improper papers will be carried to the grand jury ? There /
was a particular reason to recommend this vigilance. It was un-
derstood that a species of plunder had been permitted; that the
post-offices had been robbed; and that letters thus improperly
obtained, ought npt to be laid before the grand jury, without be-
ing first examined by the court. It was, m fact, impossible that
any papers, obtained by such means, could be legal evidence. Mr.
Botts here read as an authority, from the eighth volume of the
American Museum, judge Grimpkie's charge to the grand jury,
to show that written evidence ought not to be heard by a grand
jury; it being a well established principle, that a grand jury ought
not to hear such evidence, till it is examined, and declared to be '
authentic^ by the court.
Chiep Justice. — Neither affidavits nor papers, containing
distinct substantive testimony against the accused, ought to be
sent to the grand jury.
Mr. Martin. — Mr. attorney has conceded this in substanccj
and we admit that any witness may refer to papers to refresh his
memorj^
Mr. Hay. — I am willing to adhere, inform and substance, to
my promise. I know not what papers general Wilkinson naay
produce. I was with him yesterday, and saw him in possession
of a great niany. But which of them he may choose to refer to,
I cannot possibly say. If gentlemen wish to know the object of
my visit to him, I will tell them.
Mr. Mabtin. — It is unnecessary.
Mr. Hat. — I had said before in this court, that I would not
undertake to defend general Wilkinson ; but the result of my
ccm^rs^iion with him yesterday is, that it is my duty to defend
200
him; because I am well satisfied that he is an honest man, and a
patriot. All my suspicions, imbibed from the mysterious circum-
stances in the case, have completely vanished; and being con^^
i vinced of his unsullied integrity, I shall defend him with the
most perfect sincerity.
Mr, Martin.— The gentleman has taken a good way to re-
move his unfavourable impressions, if that can be called a good
one, which consists in hearing but one side of a cause. He has
heard Wilkinson's own story. I wish he would hear colonel
Burr's story; perhaps his impressions against him might also be
' removed.
^ Mr. Hay. — I have heard his story from his* counsel; but they
have strengthened my conviction against him.
Mr. Wirt said, that he had perused the authority quoted by
Mr. Botts, and that he was satisfied, that the papers referred to
by judge Grimpkie, were only affidavits. [Mr. Wirt read quo-
tations to prove his position.] That the distinction was, that
where a piece of written testimony was distinct and substantive^
it was not admissible as evidence before a grand jury; but where
it was explanatory of viva voce evidence, it was proper and ad-
missible. That it was sometimes necessary to resort to written
papers as the very best testimony. For example, said he, suppose
general Wilkinson should state, that on such a day he received
a letter from Burr, by the hands of Boilman or Swartwout :
would not Burr's letters, in such case, with Wilkinson's oath,
that they were the hand writing of Burr, be evidence even be-
fore a petit jury, and of course before a grand jur)"? Such letters
are the best evidence of their own contents. If he were to make
a verbal statement of their contents, would not the jury have a'
right to say to him, ^^ Produce the original, we demand it as the
best evidence ?" Suppose general Wilkinson were to produce the
cyphered letter, would it not be competent to the jury to say,^
*^ Produce it; we shall receive it, and explanations of its con-
tents?" This shows, that the objection, as made generally to all pa-
pers, is fallacious and cannot be supported by law or reason. There
are many different links in the chain of evidence. It is manifest,
that written documents are sometimes not only evidence, but the
very best, which can, in the nature of things, be adduced.
Mr. WiCKHAM. — ^The counsel said, that he would send up no
« papers. But it is contended that the witnesses may carry up pa-
pers to the grand jury. It is a distinction without a difference.
The object is to prevent the admission of improper evidence;
and it is precisely the same thing in substance to receive it from a
witness who carries, as from the attorney who sends it. When a
petitjuryis empaneled, thecourt inspect the papers before the jury
201
are permitted to see them. The gentlemen have laid down a
broad position, that any witness may have recourse to any pa*
pers to strengthen his recollection. This is certainly not correct.
I heg leave to remind the court of a case (judge Chase's trial),
which happened before the highest tribunal in this country, the
senate of the United States, where it was decided, that a wit*
ness (Mr. Hay himself) was not permitted to read memoranda^,
even to refresh his memory. Mr. Wirt admits that an affidavit
may not be read, but that a paper, not on oath, may be read.
Mr. Wirt. — ^The gentleman is uncandid. I wish he would
understand me, and answer me candidly. He puts, an absurdity
into my mouth, which I disclaim. I wish the gentleman to state
his argument against my argument as it was, and not according
to Jiis own deducti6ns.
Mr. WiCKHAM. — I agree that the gentleman did not state an
absurdity in terms: but an absurdity inevitably follows from
what he said. The court alone ought to-determine what papers
are evidence and proper to be at all heard by a grand jury.
Mr. Hay. — I beg leave to make one obser\radon. I care not
for the decision 'in Chase's trial; nor do I know that it was as
now stated: but if it were, I assert, that those who made it, knew
that it was contrary to law. In the triab of Hardy, Tooke and
Thelwal, a contrary principle was determined. A witness, who
was a spy of the government, had no memory «or recollection of
the circumstances he was to prove, but from his reference to
written memoranda. Mr. Wickham knew this decision not to
be law, but he mentioned it merely because I was the witness in
that case.
Mr. BoTTs. — Mr. Hay-s observation is the longest I ever
heard. The senate did so decide, and perhaps unanimously; and
it was composed of the ablest lawyers from all parts of the union.
Mr. Hay contested the fact of decision in that manner; but he
was irritated, and did not recollect precisely how it was; but he
was informed that it was not decided unanimously, though it
might have been so pronounced.
Messrs. Martin and Wickham stated, that the decision was
by eighteen senators against sixteen, (which was the fact)»
Mr. BoTTs. — Mr. Hay and Mr. Wirt take different grounds.
Mr. Martin contended, that the court was to decide what
evidence was to go to the grand jury. He cited Danby's case^
where a witness gave a deposition und/^r the statute of William
and Mnry ; he prevaricated before the grand jury, and they sent
for his deposition to confront him. The court decided that they
should not have it, because it was improper for them to «ee it.
Vol. I. 2 C .
/
202
CuisF JusTicK.<i»— There is fi difference between the grtad
9fkd petit Jury. The fonper are to make inquiry; they may send
for witnesses; directions ought therefore to be given them in
general tt^rms. But I am not satisfied that a court ought to in-
spect the papers which form a part of a witness'^ testimony be*
fore he is sent to the grand jury* This would tender it necessary
to examine the witnesses in open court. The chief justice here
delivered the opinion of the court, reduced to writing, in (»rder
to be laid before the grand jury. Its purport was, to instruct the
grand jury not to inspect any papers but such as formed a part
of the narrative of the witness, and proved to be the papers of
the person against whom an indictment was epdiibited.
Mr. Hay objected to this form of instruction. Suppose a pa-
per from a person closely connected with the accused were ad-
duced; as for instance, doctor BoUman. Such a p^r may be
important to prove to the jury the integrity and proper conduct
of general Wilkinson. It may have had a material influence on
his mind) even if not genuine.
. Chief JusTiCE.-^Your argument is, that the papers are to
be admitted to justify the conduct of the witness; but they ought
not to bear upon the accused.
Mr. Hay.— The prejudices in the western and other papers
against general Wilkmson's character, representing him as con-
nected wi.th Aaron Burr, make it necessary that his reputation
should be vindicated. He comes before the jury as a suspected
person. The language of the cyphered letter seems to counte-
nance the conjecture. It may be necessary to exhibit these pa-
pers to support the credit of the witness.
Chief Justice.— 'The opinion may therefore be amended,
by adding that such papers are also admissible as tend to justify
the witness, but not to bear upon the prisoner.
Mr* WicKHAic,.— General Wilkinson i^n^r on his trial. Their
object i^ 9ot to vindicate Wilkinson, but to accuse Burr, who i^
on his trial. Wilkinson's oath is. to be supported by proving pa-
pers by his oath; so that he is to support himself. This is not
legal testimony, and ought not to be admitted. It is true, that
these papers do not criminate colonel Burr directly, but they
ikear upon him by vindicating Wilkinson; and it is a sound rule
of law, that what cannot be done directly shall not be permitted
to be done indirectly.
Mr. Wirt.— The court does not contravene that doctrine.
On Shaftsbury's trial, the grand jury wished to examine witnesses
as to die credibility of a witness. Pemberton rejected such
evidence,, but that opinion has since been exploded. It is the
ao3
«
privilege and duty of die grand juty to judge of die credibility
of witnesses. If they have doubts of the crediUlity of Wilkin*
son, they ought to inquire into^ and be satisfied upon the point;
They may call upon him for an explanation as to faets and cur^
cumstances, which he can aifcml by the production of his paperm
Mr. Hay proposed an amendment to the court^s instructions;
*^ that any paper might be exhibited wluch came from the accu*
sed, or any other person proved to be an accomplice of the ac-
cused, or that formed a part^orwas explanatory of the witness's
narrative."
Mr. Martin. — The proposed alteration suiis the gendemto's
purpose. There is no paper under heaVen, but what might b6
introduced as part of his narrative; even papers procured by
breaking open letters from the post office, dr seia^ed by violence
or robbery, might be so used under tiiat general definition.
The Chief Justic£ wished to send some specific instruction^
to the grand jury, to prevent the delay that might arise from
their coming into court, when they had a particular paper before
them, on which they would wish to Obtain the instruction of the
court.
Mr. Hat contended, that the alteration he had suggested wa^
proper; and quoted authority to show, that when a man was
once proved to be an accomplice or connected with another,
what was in proof against the other, was good proof against
him: [which see hereafter].
Cnisr Justice. — Is there any authority to show that papers
communicated by an accomplice can be used as evidence?
Mr. Hat. — ^The doctrine is, that ^ where a man is proved to
be an accomplice, his papers may be used against anotner.^* tn
Home Tooke's tnal, pages 86, 87, Erskine conceded, that where
die prisoner's connection with a third person was proved, the
letters or papers of that third person, relating to the question be-
fore the court, were testimony against him. 1 East^s Crown Law,
page 97.
Mr. Wirt added, that there was no difference between ih6
words or writings of an accomplice as evidence ; in support of
which he referred to the trials of Hardy, Tooke and Thelwal,
[which see hereafter], and to 6th Dnrtifoid & East's Reports, p.
537, where it was solemnly determined, on the trial of William
Stone, for high treason, that ^^ a letter sent by one of the con«
spirators in pursuance of the common design, with a view of
reaching the enemy, was evidence against ail persons -engaged
in the same conspiracy.''
204
Mr. Martin.— The cases mentioned by the gentleman arc
cases of treason, for a conspiracy to kill the king:, it is only in
such cases, where the crime consists in the imagination of the
mind, ^^to compass the death of the king,*' that such testimony
is admissible; but where ^^ levying war" is the charge, the decla-
rations or acts of third persons, however connected, cannot be
admitted as evidence.
Mr. WiCKHAM.— :Mr. Wirt's authorities do not apply to the
case of levying war. The constitution of the United States says,
that no person shall be convicted except by the evidence of two
witnesses, or his own confession in open court Colonel Burr's
confession out of court could not be used against him; but it
seems by the doctrine of gentlemen, that the confession of
others can be adduced against him.
Mi*. Hat.-— There are several good lawyers on the grand ju-
ry* Mr. Martin says it would take him a day to state what he
had to say on this subject. It would take him his whole life to
prove the distinction he contends for. Modem systems of evi-
dence lay down the doctrine without the dbtinction. There is
much absurdity in the distinction. The same rule ought to pre-
vail in both cases. Levying war against the states, is a higher
offence than compassing the death of the king. In the latter
case, the declarations of third persons connected with the per-
son accused, are admissible evidence: a fortiori they ought to
be in the former case. Mr. Wickham says that confession in
open court is requisite to convict. He does not understand the
doctrine correctly. It is this, sir, that where a party is convicted
on his confession only^ it must be in open court: but where the
confession itself is proved as evidence of an overt act, it must
be proved by two witnesses. This discussion is an unnecessary
waste of time ; it may be thus prolonged at gentlemen's plea-
sure; but it is only proper to tell the jury to asi advice when
they want it*
Mr. Martin thanked the gendeman for enlightening his
mindf but insisted that such a construction as that contended
far by him, was novel and extraordinary.
Mr. BoTTs, after some facetious remarks on the doctrine
of pleas, rejoinders and rebutters, &c. as exemplified in the
cause, proceeded to this effect: The declarations of persons con-
nected in a conspiracy, are not to be received in evidence until
the conspiracy itself is proved. Previously, the association and
the extent of it must be proved. The association itself is not to
be proved by such declarations. Such evidence is admissible
unaer very limited restrictions. It is unreasonable and absurd
for such evidence to prevail over evidence of a superior nature;
205
over evidence of overt acts. Neither conspiracy nor intention h
war. The best evidence which the nature of the case is suscep*
tible of, must be produced on all occasions. You make it out by
such an unreasonably dangerous doctrine as this is, that where
a guilty intention is once formed, it cannot be forsaken with safe-
ty; for if it be admissible evidence, a previous declaration may
he proved against a man after he his i^pented and relinqoiahea
his criminal intentions.
Mr. Hat informed the court, that the grand jury had sent for
doctor Bollman; that they wanted him to dec) pher, if he could,
a cyphered letter annexed to Mr. Willie's affidavit, and which
he held in his hand. That Mr. Willie, the reputed secretaiy of
Mr. Burr, would prove the identity of the paper, and doctor
Bollman, it was expected, would interpret iu
Mr. Martin hoped the affidavit would be severed from the
letter to which it was annexed.
Mr. Hat consented ; and Willie who was absent, was sent for.
The Chief Justice declared, that he did not wish to pro-
nounce an opinion on the distinction as to the evidence in the two
kinds of treason, without seeing authorities referred to. That he
was inclined to think that such a distinction as was stated might
exist.
Here the chief justice delivered the instruction, as amended,
to the marshal, to be transmitted to the grand jury. It was not
read in court.
Mr. Hat wished the expression concerning '^ credibility^^ to.
be struck out, as implying a doubt.
Chief* JusTic£.*-^Tliat idea was not suggested by the court;
such evidence is deemed inadmissible, except for the purpose of
supporting the credibility of witnesses.
Mr. Hat wished the latter clause to be altered, as the grand
jury might think themselves bound to make application to the
court; and that showed the impropriety of giving such instruc-
tions at all. I
Mr. BoTTs. — It is indecorous to be consuming time until the
grand jury shall have returned ; their own excellent understand*
mg will condemn this conduct.*
Mr. Hat. — General Wilkinson is not under examination.
Mr. WiCKHAM. — Gendemen think general Wilkinson the
sole patron of the cause, but there are other witc^ess^s. .
Mr. Hat« — None who are expected to have any papers. Mr.
Hay again produced the cyphered letter, annexed to Willie's
affidavit, (Willie appearing in court.) He then proceeded;
206
iTfab 18 the paper which I wish to transmit to the grand jury. It
is addressed, I understand, to doctor BoUman under a fictitious
name, and is all in the hand writing of Mr. WiUse*
Mn BoTTs objected to its being sent up to the grand juty; that
he understood that no paper was to be laid before them, that was
not material to the cause, whether it could or could not be authen«
ticated; and that gentlemen must therefore prove both its materi'
(zlity and its authenticity.
Mr. Hat.— -A hard proposition indeed, when it is written
partly in cyphers and partly in German! I deem it material, be-
cause I understand it was either dictated by the accused, or first
written by him, and afterwards written by his secretary, and at
hb request; it is addressed to Henry Wilboum alias £rick BoU-
man. I wish it to be sent up while doctor Bollman is before the
grand jury.
Mr. BoTTs.— Our wishes are at issue.
Mr. Wirt.— *May it not be received under the instructions
already sent up{
Mr. BuRR.-^The paper is now in possession of the court; it
is not to be sent up to the grand jury, but under die judgment of
the courts; and of course die court must be satisfied with the ma-
teriality of the paper.
Mr. Hat. — ^The accused is mistaken in point of fact. The
paper is in my possession* Though I considered myself bound
to show it to the court according to my agreenient, I have not
yet delivered it, nor am I bound to deliver it-
Mr. WicRBAM.-->Why was it offered to die court, if it were
not to be put into their possession? If it be merely brought into
court that it may be sent to the grand jury, and not considered
as in possession, or under the control of the court, any paper
may be conveyed to them in the same manner. Mr. Hay asserts,
that it is addressed to E. BoUman. But how has it been obtain-
ed? Has it not been taken from the post-office? Has it not the
post-office mark on it ? Has it not been obtained by felony ? He
wished to see it. Mr. Hay refused to show it, and said that he
would know what to do with papei's hereafter. [He was understood
to deny that there was any post-office mark on it; this however
may be a mistake.]
Mr. WiCKHAM demanded as a matter of right, that the pa-
per should be delivered to him.
Mr. Hat. — I deny that the paper is in possession of the court,
or that it was offered by me. If it were, I acted improperly.
There is no precedent to justify the doctrine, that I was com"
2207
fdkd to offer it. A 1>aper ofertd to the court is either deiivered
or read. I did neither. I have a right to send any paper to the
grand jury t under the directiooa ah*esidy received by tJiem; un-
&88 it be explained by Willie and BoUman, it will be no more
than an oak leaf. I hope I shall be permitted to pursue the usual
and regular course.
Mr. WiCKHAM*— If the paper be not before the court, I wish
to know what is the question? Does he offer it to the court?
tMr. Hay. No.] How then can any notice be taken of it? How can
le send it up to the jury ? By the marshal i He is the o£Bcer of
this court, suid bound to pursue its orders. By Mr. Willie ? He
is but a witness and not bound to carry it. If any paper go
from the prosecutor to the grand jur}', it must be with the leave
of the court. If a wimess go up, it 19 because he is presumed
to be a relevant witness; but if it be a paper, how can its rele*
vancy be estabtished, until its contents and materiality are known?
If an improper paper be sent to the grand jury, the isdictment
vaay be quashed, because founded on iUeg^ evidence. Was not
the leave of the court asked? If it were, tlmti^ it in the power
of the court. If it were not asked, the whole is improper and il-
legals As to what they say they can prove respecting the paper,
let them first prove it. When they db, the paper may be proper.
Some ingenious sparrings between Messrs. Wickham and
Wirt amused the aucKence a moment; when,
Mr. BoTTs objeeted to the transmission of the paper. It was
immaterial, or it was not; If it were immaterial, why embarrass
the jury with it? If it contained pertinent matter, it was cer-
tainly wicked matter, in which Mr. Willie may be himself con-
cerned. If he be sent to the grand jury widi this paper, what
would he say about it? Would the court wish him to say any
tluDg that would criminate himself? We have a right, said Mr.
Botts, to see this paper. Perhaps we shall find, that it has been
filched from the post-office, contrary to the eighth amendment of
the constitution, which protects every man's papers from unrea-
sonable searches and seizures. If it has been obtained by such
illegal and violent means, perhaps the court would arrest it;
even the grand jury would not dirty their fingers with it.
Some desultory conversation ensued^ when Mr. Willie was
called to the court.
Mr. Williams, his counsel, hoped that no question would be
put, the answer to which mig^t tend to criminate himself.
Mr. Mac Rae.— -Did you copy this paper?
Mr. Williams, (after consulting with his client)— *He says,
that if any paper he has written have any effect on any other per-
son, it will as much affect himselfl
208
Mr. Wirt. — He has sworn, in his deposition, diat he did not
understand the C3^her of this letter. How then can his merely
copying it implicate him in a crime when he does not know its
contents ?
Mr. Mac Rae.— We will change our question. Do you un-
understand the contents of that paper i
Mr, Williams.— He objects to ^swering. He says, that
though that question may be an innocent one, yet the counsel for
the prosecution might go on gradually, from one question to ano-
ther, until he at last obtained matter ,enough to criminate him.
Mr. Mac Rae.— -My question is not, *^ Do you understand
this letter, and then what are its contents?" If I pursued this
course, I might then propound a question to which he might ob-
ject; but unless I take that course, how can he be criminated?
Mr. BoTTS.— If a man know of treasonable matter, and do
not disclose it, he is guilty of misprision of treason. Two cir-
cumstances, therefore, constitute this crime : knowledge of the
treason, and concealment of it. The knowledge of the treason,
again, comprehends two ideas : that he must have seen and un-
(krstood the treasonable matter. To one of these points, Mr.
Willie iscalled upon to depose. If this be established, who kiiows
but the other elements of the crime may be gradually unfolded,
so as to implicate him. The witness ought to judge for himself.
Mr. Mac Rae. — I did not first ask, if he copied, and then un-
derstood it? but first, if he understood it? Had he answered this
question in the affirmative, I certain]y should not have pressed
the other question upon him, because, that might have amounted
to self-crimination ; but, if he did not understand it, it could not
criminate him. ^
Mr.HAT.-^I will simply ask him, whether he knows this letter
to be written by Aaron Burr, or by some one under his authority ?
The Chi£7 Justice said that that was a proper question.
Mr. Williams. — He refuses to answer; it might tend to
criminate him.
The court were of opinion, that Mr. Willie should answer
upon oath, whether, or not, he thought that answering the pro-
posed question, might have a tendency to criminate himself.
Here a long desultory argument ensued.
Chief Justice. — Has the witness a right to refuse to answer?
Mr. Williams. — The knowledge of the treason, and con-
cealment of it, amount to a misprision of treason.
Chi£¥ Justice. — ^The better question i>, Do you under-
stand it?
209
Mr. Williams.— -He ought not to have such a question put
to him, because he might be obliged to answer ^^ Tes*^ He ought
not to be compelled to answer, if it might/os^i^/y criminate him.
The witness is to judge lor himself, though the question may not
seem to affect him. He referred to the case of young Goostfly
before referred to by Mr. Randolph.
Mr. BoTTs. — I will give Mr. Hay the benefit of an autho-
rity, 1 Mac Nalfyy 257j 258. which shows, that the possibility
of crimination is sufficient to 'excuse the witness from an-
swering.
Mr. Williams. — What the witness says here, tending to
his own crimination, may be used as evidence against him on
a prosecution. If he answer at all, he is deprived of the pri-
vilege given by the law, not to criminate one's self.
Chief Justice.— *If he be to decide upon this, it must be on
oath. He asked Willie, whether his answering the question,
whether he understood that letter, would criminate himself?
He answered. It may in a certain case.
Chief Ju8TiCE.->-I wish to consider the question until to-
morrow.
Judge Griffin to Mr. Williams. — The case of Goosely
was not as you represented it. It was the court who knew,
that the witness was one of those who robbed the mail.
Mr. Hat. — The doctrine is most pernicious and contrary to
the public good.
Mr. WiLLiAMs.^^The public good does not require the
conviction of colonel Burr so much as to dispense with the law.
It was then agreed that the point should be argued to-mor-
row, and colonel Burr's counsel promised to produce their au-
thorities to show, that Willie could not be compelled to answer
such questions, as might in his own opinion tend to criminate
himself.
The court thien adjourned till to-morrow.
Tuesday, June 16th, 1807.
As soon as the court met, Mr. Hay produced and read the
following letf:er from the president of the United States, in an-
swer to his letter on the subject of the subpceaa duces tecurn^
observing at the same time, that he read it to show the dispo-
sition of the government, not to withhold any necessary papers,
and that if 'gentlemen would specify what orders they wanted,
they would be furnished without the necessity of expresses.
Vol, I. 2D
210
g' ' Washington, June 12th, 180r.
Your letter of the 9th is this mpment received. Reserving
the necessary right of the president of the United States, to
decide, independently of all other authority, what papers coming
to him as, president, the public interest .permits to be communi*
cated, and to whom, I assure you of my readiness, under that
restriction, voluntarily to furnish, on all occasions, whatever
the purposes of justice may require. But the letter of general
Wilkinson of October Slst, requested for the defence of colo-
nel Burr, with every other paper relating to the charges against
him, which were in my possession when the attorney-general
went on to Richmond in March, I then delivered to him; and
I have always taken for granted he left the whole with you. If
he did, and the bundle retains the order in which I had ar-
ranged it, ^ou will readily find the letter desired, under the date
of its receipt, which was November 25th; but lest the attorney
general should not have left those papers with you, I this day
write to him, to forward this one by post. An uncertainty,
whether he be at Philadelphia, Wilmington, or New-Castle,
may produce delay in his receiving my letter, of which it is
proper you should be apprised. But a\) I do not recollect the
whole contents of that letter, I must be e leave to devolve on
you, the exercise of that discretion which it would be my right
and duty to exercise, by withholding th e communication of
any parts of the letter which are not dire»ctly material for the
purposes of justice. With this application, which is specific, a
prompt compliance is practicable; but whe.n the request goes
to copies of the orders issued, in relation to colonel Burr, to the
officers at Orleans, and Natchez, and by the secretaries of the
war and navy departments, it seems to cover .t correspondence
of many months, with such a variety of officei's civil and mili-
tary, all over the United States,, as would amoi int to the laying
open the whole executive books* I have desired the secretary
at war to examine his official communications, and on a view
of these we may be able to judge what can an d ought to be
done, towards a compliance with the request. If the defendant
allege, that there was any particular order whici ^, as a cause,
produced any particular act on his part, then hi ) must know
what this order was, can specify it, and a promp t answer can
be givein. If the object had been specified, we migl U then have
had some guide for our conjectures, as to what pai t of the ex-
ecutive records might be useful to him. But with a perfect wil-
lin^ess to do what is right, we are without the mdications
which may enable us to do it. If the researches of the secre-
211
» ,
taiy at war should prodace any thing proper for commoiiiGk-
tion and pertinent to any point we can conceive in the defence
before the court, it shall be forwarded to you. I salute yon with
esteem and respect.
TH- JEFFERSON.
George Hay, Esqn
Some conversation ensued, about the specification of the pa-
pers wanted from the executive.
Mr. Hat stated, that in his communication to the presi-
dent, to which this letter was a reply, he had mentioned these
papers in the terms by which he thought the opposite counsel
would probably have described them. The president, however,
did not deem this description sui&ci^nt.
Colonel Burr's counsel then stated, that they had sent an
express to Washington for these papers, with a subpoena to the
president, and that it would appear on the return, whether they
could obtain them or not.
The Chief Justice recommended a certain order in the
debate, and that only two counsel should speak on each side;
that it would be the best course on every point of subordinate
importance, for the counsel on one side to open the motion or
argument, the opposite counsel to reply, and the party who
opened, to close the debate, unless some new matter rendered
a departure from this rule proper.
Both parties acquiesced in the propriety of this arrangement,
except that Mr. Martin said, that as there was no other busi-
ness before the court, there was^no necessity of adhering to tht
rule, limiting the number of counsel to speak.
Mr. Hay hoped the rule would be observed ; It would re-
lieve himself and some other gentlemen. He then begged leave
to call the attention of the court to a subject mentioned yes-
terday; that doctor Bollman had gone up before the grand juiy«
What his answers were he knew not; byt he thought he ought
to be sent to the grand jury with Willie, that he might inter-
pret, and Willie could authenticate the cyphered letter; hence
arose the necessity of deciding the proposition that he was a
pardoned man.
Mr. BoTTs hoped, that they would not be interrupted in the
discussion of the question about Willie, which they were alx>at
to begin.
Mr. Hat was willing to discuss either point first.
Here a desultory conversation ensued, in which Mr. Hay
, insisted that doctor Bollman was a pardoned man, and ought
212
to communicate all he knew to the grand jiiry; which was dc«
nied by the other side ; when doctor Bollman, addressing him-
self to the court, said, I have answered every question that yf9S
put to me by the grand jury.
Chief Justice. — Is there any obligation to ask doctor Boll-
man if he can decypher the letter?
Mr. Martln. — It will be time enough to discuss that ques-
tion, after the letter shall have been before the grand jury.
Mr. Mac Rae. — I wish the question now put. I asked
Willie whether he understood that part of the letter which is in
cypher: he could not be criminal, if he did not understand it.
I wish the part which is written in German now to be explained,
to show that there is nothing criminal in it. I wish Bollman to
translate that part.
Chief Justice. — I had rather proceed with the other point
now: how far a witness may refuse to answer a question, which
he thinks would criminate himself.
Mr. BoTTs. — I am glad to be relieved from the necessity of
showing the versatility of gentlemen, who fly from one point
to another. I am sorry they should attempt to drive us from
the discussion. The oblique insinuation of Mr. Hay against
Willie, seeming to presuppose his guilt from his exercising the
privilege of not answering the questions propounded to him,
must be answered, though it is painful for me to notice such
illiberal attacks. He says, that Willie acts as if he were engaged
in the conspiracy. Cannot Willie have another excuse, in
seeking exemption from the examination, than conscious guilt?
The attorney for the United States 8ee» every object, connected
with colonel Burr, through ^, jaundiced medium. With him
'^ trifles light as air, are confirmation strong as proofs of holy
writ." How far he might be disposed to involve this young
man, upon a confession of having copied a letter in cypher,
though of harmless import, I am not prepared to say. But let
Willie only commit himself, so far as to make such confession,
and then be called by his business to that poor unfortunate,
enslaved country Louisiana, and it may be the pretext for op-
pressing him most cruelly. He may be seized, thrown into a
dungeon, or into the hold of a ship in the most rigorous season,
and be heard of no more, unless he should have the better for-
tune of being transported to Washington for trial. An un-
fortunate ignorant man should be guarded from the penalty of
suspicion. The danger to be apprehended from this source is
not imaginary. We have not arrived at that part of our inquiry,
which is awfully terrible, and apt to rouse the indignation of
our couhtry ; we shall very soon give you an awful impression
213
of the miseries of that ill fated territory, under the total surren-
der of the civil authority to military guidance. I am driven
prematurely to glance at one outrage which may serve as a
sample of the wretched state in which that section of our de-
pendencies is. A citizen of the United States, now within the
hearing of my voice, in a time of profound peace, was seized
in New-Orleans, and, without being charged with any offence,
but merely on suspicion that he could give evidence against co-
lonel Burr in this court, to which he was willing to come, was
committed to prison without bail or mainprize; thrown into a
stinking room with the common felons and negroes confined
there, and only taken out at last to be transported on board of
a vessel to Richmond in custody. He was hurried like a male-
factor on board, without being permitted to go to his lodgings
to get a shirt to put on. He was forced to yield, in the humility
of abject submission, to the arbitrary will of his oppressors.
Are we content to bear such enormities? A man, only sus^
pected of being a witness^ is subjected to military slavery. Shall
we furnish a pretext agsdnst this stranger, now called on to im-
plicate himself, in what are called the treason and misdemea-
nors of colonel Burr? It has been said, that my client and his
counsel have taken much interest in this privilege. I feel inte-
rested to protect the innocence of that young man from the
vengeance of illegal power. My client feels the same anxiety.
He is solicitous that he alone should feel the pressure of unjust
suspicion and persecution.
But how did this letter come her§? Foulness and violence
are betrayed in the mode of its acquisition. In the hardest and
most arbitrary times in England, papers which were seized by
force, were brought forward as evidence against the party from
whom they were taken ; but succeeding times have abhorred
the doctrine ; and papers found in possession of a party have
been deemed the weakest of all evidence. The foulness of that
very mark of 25 cents deserves execration.
Mr. Hat said, that there was no post mark.
Mr. BoTTS. — The " 25'* on the back, is the only post-mark
of many of the country post-offices. Mr. Hay did pot withhold
it on that account. How came that mark there? Will the gen-
tleman say how the paper was acquired? If the post-office was
gobbed, tfie possession of the paper was gained feloniously.
The constitution has provided against the seizure of papers;
and the act of congress has fixed the offence of stealing from
the post-offices. The means of obtaining the paper are uncon-
stitutional. The end cannot be sanctioned, without maintaining
the means. It is impossible that this most detestable vice, of
the most infamous of European courts, can have been pa-
214
troQized hy tbe government. By a familtarity of eur rulem
with such hateful practices the people would be demoralized.
I claim from tbe counsel for die United States, as patriots,
their akl to sanctieon my propositions, and join me in arraign-
ing an act, which will disgrace all who had any agency in it.
It must be a dreadful state of society, in which such an oiFence
should be made the means of assisting to prove another. The
principal of the government, if here, would join in the denun-
ciation. If it behoove the government to suppress a paper thus
, unconstitutionally, clandestinely, and illegally obtained, if they
cannot use the end without sanctifying the means, I wish, for
the honour of the government, that the paper may be suppressed.
I I hope that in the dignity and generous spirit of Chatham,
they will renounce it as unworthy of their use. It will do more
mischief than the treason could, were it real*
I come now to the abstract question of law. The question
{>ut to Willie is. Do you understand that the original of this
etter was written by colonel Burr i
Mr. Mac Rae. — That is not the question last put. It is,
Do you understand that part of the letter which is in cypher f
Mr. BoTTs. — ^Very welL The gentlemen charge that this
letter contains treasonaUe matter.
Mr. Hay denied it.
Mr. BoTTs. — Either the letter contains treasonable matter
or it does not. If the latter, it is irrelevant and improper for
discussion. If treasonable matter be contained in it, the ques-
tion goes to criminate the witness. If he answer ** Yes,'' he is
infamous. The rule is, that you shall not make the witness an-
swer a question which may tend to implicate him in moral or
legal turpitude. The witness himself is the judge, how far his
answer may affect him. If he were obliged to answer, that the
court may judge of its tendency, he would be surrendering his
protection in the means of securing it. If the answer should
tend to make a single link in the chain of testimony necessary
to involve him in suspicion, he has a right to decline it. The
link cannot be perceived by the judges to belong to the chain,
without an exposure of every other part of it. Suppose another
question were put to him, How do you understand it? He
n\ust answer it, as he is to tell the whole truth. Half of the
truth is not to be told. Gilberts Law of Evidence^ p. 134.
9 State Trials J 434. Another authority from an able and im-
partial court, which has been already referred to, shows, that
although a question may be apparently innocent, yet a witness
is not bound to answer it, if he think that it tends to criminate
him. The question was, " What profession are you of?" The
$
t
215
witness wa* a Roman Catholic priest^ am 1 tbe answer would
have subjected him to penalties* The cour t did not know what
the question would be, or how it would affect him, but the
witness did know. His right to decline * the answer was sus-
tained* What question could, on its face ;, be more harmless
than that resisted by that witness? Un less the witness be
made the sole judge of answering, the fa cnefit of the rule is
lost to him.
If, as I have already observed, the com *jents of the letter be.
not of a treasonable nature, it is irrelevai u: we know not the
contents of it Suppose the letter were wi itten by an amorous
young fellow to his sweetheart, would it b e a proper subject of
discussion in this case?
I shall conclude with an admonition, o r an humble request,
that gentlemen will give us a better opi portunity to prepare
ourselves for the defence of our rights, by * possessing the cotrtt
with any papers they intend to exhibit and letting us see
them. It is a matter of right, that when a paper is offered for
any purpose, it should be deposited with t jie clerk* Heretofore
we have been prevented from getting a t light of any paper till
the moment of discussion, and then obt ained it, not without
difficulty*
Mn Williams, counsel for Mr* Wi Die.— I lay down two
propositions which I deem incontroverti ible: first, that a wit«
ness is not bound to criminate himself: secondly, that a wit-
ness is from necessity the best judge o f the tendency of his
answers*
To support the first proposition, I re fer the court to 1 Mac
Nolly ^ 256, 7, 8*, Douglas^ 590*, Goost Jy's case, in this court,
where, I understand, both points for wl lich I contend were es-
tablished* If a witness admit that he k nows the contents, he
is guilty of misprision of treason, and if it only tend to produce
that result, he is not bound to answer*
Second, The wimess is to be the ju( Ige how far he ought to
answer. The reason of the rule supp orts this position. It is
given for his benefit; it is a privilege for his protection* The
other rule of examining witnesses oi i the ^ voir dire? before
they are sworn in chief, is explanator j of this rule. A witness
is asked whether he is interested in. t1 le event of the cause, be-
fore he is admitted to give evidence relative to the matter in
issue. If the opinion of the person of fered as a witness be, that
he b interested, he is rejected as an \ incompetent witness* If
his opinion be to exclude him in civil I cases, a fortiori^ ought it
to exempt him from giving testimony ' in a criminal prosecution
where his personal safety may be in danger? The witness only
knows, what will' be the answer to ? the question. The court
«
r
216
cannot know it* It may discharge or criminate him. The wit^
ness must tell the c<iurt, what his answer will be, before they
know it. A bystander who hears him, may be called on to
fix guilt on him by his declaration* The interest of the United
States cannot deprive him of his right* His saying that he can-
not answer without criminating himself is on oath, and if he
were to perjure himself upon that point, he would be equally
ready to perjure himself on every other point. Whether public
justice require an answer, is not the question; but whether the
witness ought to be compelled to answer, when he believes it
it would criminate or endanger him? To compel him would
be a violation* of a great and valuable principle of law and
justice* No case can be produced wherein it has been adjudged,
that a witness is first to say what he does know, and that the
court is then to judge of its tendency, whether it will en-
danger him or not* A man is not bound to produce evidence
against hiipself* 1 BU Rep* 37. ' %
Mr. Martin.— The answer must be, " I do or I do not*"
Mr* Willie has been considered a secretary of colonel Burr*
If he confess that he knew the contents of this letter, and they
should prove to be treasonable, his continuing in the service of
colonel Burr, will make him a principal in the treason* He
may have written to others; the post-offices have been put in
requisition*
Mr* Hay — Insinuaitions ought not to be thrown out against
the government withotit evidence to support them. I am wil-
ling to communicate all that I know about that letter. It was
transmitted by general Wilkinson, through the hands of Mr.
Minnikin, who accompanied Mr. Willie to this place, and it
was attached to an affidavit obtained from judge Toulmin* I
know not whether Willie ever saw it or not.
Mr* Martin. — I do not charge general Wilkinson with
plundering this letter, but we will hereafter prove, that they
have laid violent hands upon the post-office of NewOrleans.
They have a paper and know not how they have come by it.
The post-office mark on it, is a presumptive proof of the vio»
lation of the post-office. Never will I mince the matter* They
would not get Willie to decypher this letter if he could ; but
other witnesses may be UBed to decypher it, and it may then
be evidence against him, if he acknowledge now that he un-
derstands its contents* Do gendemen produce this letter to
criminate doctor BoUman.? Let him decypher this letter* If
other letters are hereafter found, in the same cypher, his ac-
knowledgment, that he ca n decypher the one, will make him
equally responsible for tho rest. By this contrivance, he and
217
doctor BoUmati msty be made the instrumentsof their own cri-
mination : the one being used against the other. If a witness
refuse to be sworn, he is liable to be committed for a contempt
of the court. Salkeld^ 270. But there is no instance to be found
where the court has committed a witness for a contempt, for
refusing to answer a question, which he supposed woi^d crimi-
nate himself. Mac Naiiy, 837. 2 State Trials^ 124.
Mr. BoTTs. — It is important to know how the letter was ob-
tained. I wish Minnikin to be examined.
Chief Justice. — That is foreign to the present discussion.
Mr. Mac Rae.— The question proposed to the witness is,
*^Do you understand the contents of this letter?" But, before I
proceed to demand the answer, I hope we may congratulate
ourselves on the situation in which we are placed. The pro-
ceedings clearly evince, that it is not our wish to withhold from
the accused any, the slightest means /)f defending himself;
and yet, the present is a spectacle very rarely exhibited in a
court of justice. The counsel of the accused aiding the coun-
sel of the witness to prevent him from being examined! I am
glad, sir, that counsel is employed for the witnesses, if thereby
the accused can be benejited, I am pleased that they have united
in his defence. Bat I have endeavoured, in vain, to discover,
whether any thing, which they have advanced, bears upon the
point before the court. These gentlemen have widely wander-
ed from it, and I feel deep regret, that they will not confine
themselves to the point of law. Henceforth, I hope that they
will do so, and abandon this species of warfare, and address the
judgment of the court, instead of the prejudices of the multi-
tude aroundi
Great part of Mr. Botts's remarks are foreign to the point.
Instead of reasoning on the subject, and referring to authors
in support of his assertions, he has made some strange con-
jectures, as to what may happen hereafter to Willie, even
if the letter were innocent. That his acknowledging, that he
bad copied it, though its contents be innocent, may expose
him, at some future day, to persecution in some distant terri-
tory; or, perhaps, doom him to be thrown into confinement in-
to the hold of a vessel. Is not this mere declamation? can it be
called argument? Does it bear at all upon the question? His re^
marks were certainly improper; and, perhaps, it maybe impro^
per to answer them. His observations about a distant territory
are irrelevant, as are also all he has said about the manner of
obtaining the letter. What connexion has this subject with
JLouisiana or the manner of obtaining this letter?
As to the robbing of the mail, it is all conjecture. Why has
Vol. I. 2 E
218
■
he not specified the name of the post«o(fice, and the name of the:
officer? A castom prevails in those post-offices to affix upon a
letter the name of the office, printed or written* This impres-
sion would have been sufficient to have led to the discovery:
but there is none such on the back of that letter* The non-
observance of the custom^ in this case, repels their insinuations*
As to the figures "25," they occur very frequently on the face
ot the letter. On the back of it, they may be a cyphered di-
rection or caution to the person for whom it was intended: and
this conjecture is as good as theirs.
Mr. Botts says, that the letter must be fraught with treason,
or it is not; and that if it be not, it is perfectly irrelevant to the
present case. But ought not the fact to be ascertained ? Is it not
material to the present inquiry that it should? But, says Mr.
Botts, " if the letter be material, and Willie confess that he
copied it, he will fix a crime on himself." That is not granted,
sxr.^ Willie must also understand it. Even if it be treasonable,
it was no offence to coj^y it, unless he understood its contents.
He can neither be accused nor punished for it. All that could
be said against him would be^ that be had ignorantly done an
act, injurious to the public, with an intention to benefit an indi-
vidual.
The authority in Gilbert^ 134, cited by Mr. Botts, would ap-
ply, if the question were about the credibility of a witness*
But that is not the case, and the authority is inapplicable.
They have also quoted a case from 9 State Trials^ where a
popish priest was permitted to elude a question without an-
swering it. According to the English laws, the witness, if he con-
fessed that he was a roman catholic, was liable to certain dis-
abilities. There it was known to the court, as well as to the
witness, that there was such a law, and that by such a confes-
sion he would subject himself to its operation. The court, there-
fore, did not press him for an answer. But here, it is contended,
that the witness is alone the Judge of the law and the fact; whe-
ther he ought to answer or not: for both the law and fact are
included in the privilege, which they claim for the witness. In
the cases cited by them, the court did understand the subject^
and saw the danger of the witness: but here, the subject is not
understood by the court; and the right of judging, whether the
witness be in danger or not, is denied them. Mr. Martin cited
authority in support of this principle : that courts had punished
a witness for a contempt in not taking the oath, but never
where he refused to answer in cases in which he might crimi-
nate himself. A court has always a right to understand the ground
on which a witness refuses to answer, and ever}'- man is liable
to give testimony, unless he come within certain exceptions;
and in those cases, he must show some law or authority to jus-
219
cify his refusal to answer* Does the court possess the power of
compelling a man to make oath that he will give evidence, and
yet not possess that of making him comply with it? Surely,
this would be preposterous.
In the case of die voir dire, it is not sufficient to ask a wit-
ness, if he be not interested* If he say, that he is not interest-
ed in the event of the cause, inquiries may be made into the
ground of his opinion; and, if it can be proved, by other wit-
nesses, that he is interested, he is excluded. It is never refer-
red to the witness only* Every day's practice proves this to
be the law.
The court has a right to understand the grounds of the pri-
vilege claimed by the witness. Suppose an attorney were called
on to give testimony, and he should say, that his knowledge of
facts had been derived from confidential communications from
his client : he would not be the only judge in that case. The
court would inquire, whether they were made to him in his pro-
fessional or private character i The supreme court have so de-
cided. Cranche^s Reports^ 137. and 1 Mac Nallif^ 255. sub-
stantially support this doctrine. The priest, in the case referred
to, was compelled to state the ground of his refusing to answer.
The witness objects, that by answering, he may criminate
himself; but the court is to judge of the tendency of the
question. It must appear^ that he mcnf criminate himself. The
question is, Do you understand that part of the letter that is in
C)T>her? Whether he answer " yes," or " no," he cannot crimi-
nate himself. If he say ^^ Yes," it cannot criminate him, unless
it be coupled with other questions, and his answers to them;
and unless, also, he wrote it He may know the key to the cy-
pher very innocently. It may have been imparted to him for
the purpose of parrying on an innocent correspondence. He may
know the cypher without having any connexion with its con-
tents ; or he may have acquired a knowledge of the cypher long
after the letter was written. I wish gentlemen to show how
he can criminate himself, by answering this question. They
have not shown that it will^ or that it may^ criminate him : and
if the answer will not crimina^te him, the United States are en-
titled to his evidence. If he answer "No;" if he be unacquaint-
ed with the cypher; he is innocent, and cannot be criminated*
As to the law, there is no difference in opinion. We all agree
in opinion, that a witness cannot be made to criminate himself.
The only dispute is about the effect of the answer. I hope,
therefore, that the court will compel him to answer the ques-
tion, unless it be shown, that he will or may criminate himself,
I am sorry that so much time has been consumed uponsoplain^
a question.
Mr. Hat.*-I did not wish to say any thing on this frivolous
question, when a subject so important ought to occupy our time*
The effect of the paper is dreaded, for gentlemen discover un-
exampled solicitude to keep it out of view. I know not its con-
tents. They have repeatedly asserted, that Mr- Burr was per-
secuted and innocent. If this be true, why do they shrink from
the evidence. Integrity walks forth with a bold and erect front
before the world. A man, who knows his own innocence, de-
spises the powerless efforts of his enemies. They have consumed
a great deal of time unnecessarily ; and yet, charge us with
wasting it. I have taken up about the fortieth part of the time
occupied by the gentleman who spoke first.
I come now to the question. There are, in fact, two questions
which we wish to put to the witness. 1st, Do you understand the
cypher of that paper? 3d, Did the paper come from colonel Burr?
was it written by him, or by his directions ? The last question
ought to have been first stated. The witness does not say, why
the answer to the question will have a tendency to criminate him.
The court cannot judge, whether his motive may not be an un«
willingness to give testimony against a person to whom he is at<-
tached. He ought to answer : the court cannot decide without
information from him, showing in what manner it may tend to
his crimination. The meaning of the argument offered in de-
fence of his silence, is, that he is connected with colonel Burr,
and as deep in the treason as he is. Will his answering the ques*
tion, " Whether he understand that cypher ?" subject^ him to a
prosecution? It certainly will not. His knowledge of the cypher
is not inconsistent with perfect innocence. They say, that the
question ought to be. Has it a tendency to criminate him ? The
wit of man cannot tell whether any tendency to criminate him can
result from answering this question. The great rule of law, of
which the cases cited are illustrations, i^ thiSy that a witness is not
to give evidence to accuse himself of a crime, 1 Mac Nally^ 256*
Hawk. 609. I venture to affirm, that the gentlemen cannot pro-
duce a case, that goes as far as to say, that a witness is'^ot to an«-
swer what may tend to criminate himself. But this answer will
not even tend to criminate him, nor will it tend to calumniate him.
The doctrine of Mr. Williams, about a pardoned man, does not
apply. I contend, that a man is bound to answer every question re-
hting to the point in issue^ unless it subject him to a prosecution.
But as to collateral points, he is not bound merely to degrade or
calumniate himself. Every case mentioned has been decided on
these principles. 1 Mac ^aUyj 258: The authorities there show,
that a witness must make answer, unless it directly criminate
him; or, what is the same thing, subject him to punishment. The
objection now made by the gentlemen was there expressly over-
ruled. In the case of the King v. Edwards, the question put
221
was objected to, as iendinff to criminate himself. But the objec-
tion was overruled by the court; saying, " there was no impropri-
ety in the question ; as the answer toould not subject htm to any
punishment.^ Thistherefore is a decisive authority iiH>ur favour,
being precisely the same point* The doctrine, cited from the
State Trials, was overruled by the cases in 1 Mac NaUy^ 259* I
will not appeal to the candour, but to the ingenuity of gentlemen,
to show how the answer to this question can criminate the wit-
ness. The question is, " Do you know that cypher?" relating to
the present time. If the letter contained guilt, and he knew it
from the beginning, it might implicate him ; but we do not ask
how long he has known it.
The other question, which we propose, is not whether he co-
pied or wrote the letter, but whether it were written by Burr or
by his directions? This he can say, without saying who wrote
it, if Mr. Burr did not.
But it is sud, that *4he court is not to judge" whether he ought
to answer, or whether it tend to criminate him or not. This is one
of the wonderful positions in the wonderful cases resorted to by
gendemen. Yesterday they said, that it was a clear case, and that
Uiey only wanted time to look for authorities. And- what have they
found? Nothing to support their position, though I have produced
an authority, direcdy m point, against it. I ask, if this doctrine be
not a prostration of the rules uniformly prevailing in all courts
of justice? The court ought to judge every point of law arising
collaterally or incidentally in a cause. The witness, from caprice
or corrupt motives, may refuse to answer the question. Is it not
strange that the court should politely say to a witness, ^^ You
have been sworn to tell the whole truth, but you may be silent if
you think proper^ without assigning any reason for it ? I expecu
ed something like authorities to prove, that the witness had a dis-
cretion to answer or not. Douglas 593, stating, that a man was
not bound to answer whether he were a roman catholic or not,
might as well have been introduced to prove any thmg else.
The answer there, if in the affirmative, would subject immedi-
ately to disabilities, but here it cannot.
As to Goosely's case, I know nothing of it. Judge Griffin and
Mr. WilUams differ in their statements concerning it ; but if that
case be contrary to the uniform current of authorities, it is not
binding. In Cooper's case the decision is contrary to law^ and
has been disregarded since.
The Chief Justice. — The decision in Cooper's case was only
that the accused had not a right to obtain papers from the pub-
lic offices for certain purposes.
Mr. Hay.— -That decision, that papers shall not be obtained
from the public offices, does not apply to the present case.
222
[HerelGoosely's case was produced, and part of it read from
Che manuscript report of Mr* Daniel Call, (a gentleman well known
as an able lawyer and correct reporter) and which case, in sub-
stance, is as follows: Goosely was indicted for felony, under the
16th and 17th sections of the act of congress establishing the
post-office and post-roads within the United States, for robbing
the mail of some bank notes. On his trial, ^^ the atton^ey for
the United States called . Reynolds, an accomplice with the
# person, against whom an indictment for the offence had been pre-
ferred, but which had been found ^^ not a true bill" by the grand
jury. Randolph and Wickham, counsel for the prisoner, objected
$ to his testimony, on the principle, that the witness was not bound
to give any evidence which might implicate himself. The attor-
ney admitted the general principle, but denied its application, and
insisted that he might give evidence. The court determined,
<^ that he was a competent witness;*' but judge Iredel) observed,
(and judge Griffin concurred) that ^' he could not be compelkdto
* amtoer a question leading to an implication of himself: and ihat it
was very probable, that the jury would pay but little attention to a
fact, which they were satisfied was but partially related." He was
asked, whether he knew of any bank notes being taken out of the
^ mail by the prisoner? He answered, none, but what he was jointly
concerned in. The court said he was not bound to tell any thing
that might ^^ tend to criminate himself." The jury returned a
verdict for the prisoner of not guilty, and he was discharged."]
Gentlemen prove a thing which is not denied, and say that
they have gained a victory. 4 State Trials^ 414, seems to counte-
nance the doctrine on the otherside. In 1 MacNiaHy^^SB^ the court
perhaps knew the situation of the man, and that it would crimi-
nate him ; but it is here decided, that where the court knows not
the situation of the witness, or whether his answer would sub-
ject him to punishment, they will leave it to the witness.
Mr. Williams says, that the answer itself must be given te
enable the court to judge whether it will criminate him. But
certainly the court may inquire into the circumstances, to disco-
ver why he will be endangered. A man who says that he is in-
terested, even if he be not, is disqualified; because he is under a
bias if he think so, whether the fact be that he is or is not in-
terested. In that case, it is an objection to the testimony of a
« witness who is offered* This, on the contrary', is a question of
exemption of privilege, claimed by the witness to excuse him
from giving testimony; a duty incumbent on all, except interest-
ed persons. In the case of Marbury v. Madison, it was de-
cided, that ^^ a witness may state his objections j^ and the witness
did state his objections and they were sustained ; but here the
witness refuses to state his objections. He is silent, and refuses
to explain*
^
223
Mr. Botts says, that the letter is irrelevant. To this I answeF,
that this cao cmly be ascertained by discovering its meaning. The
gendemeo declaim about plundering the post-offices. We deny
it: let them prove it. I could talk of a detestable plot to plun-
der a city and rob a bank.^ as subservient to the execution of pro-
jects of unprincipled ambition; but, I will not do it till a future
day. They scatter ambiguous words with a view to excite public
suspicion and discontent. They insinuate, that this depredation 4
has not only been committed, but that it was countenanced by
general Wilkinson, and the president of the United States. But
it ought to be proved before they allege it in a court of justice. ^
But suppose the letter had been in the post-office, and it had
been voluntarily delivered by the postmaster, on discovering
that it contained a treasonable j^ot, to the commander in chief,
in order to prevent the treason; would this have been criminal or
improper? It has always been the practice to intercept letters to
prevent treason. It is founded on necessity, and dictated by the
laws of self-preservation. As to Mr. Martin's position, that a
witness may be committed for refusing to be sworn, but not for
refusing to answer —
Chief JusTiCE«^--Mr. Martin's position was, that a witness
might be committed for refusing to be sworn; but not for refusing
to answer, when he thinks the answer would criminate him.
Mr. Hat.— -If that be the law, it does not justify the refusal
of the wimess, in this case, to answer. The cases are not alike*
No authority would be found, after their most industrious re-
searches; because no case could be found similar to this case. I
trust, therefore, that the witness will not be permitted to judge for
himself; but that he must answer our question, as it cannot be
shown that it wiU endanger him.
Mr. Wirt.— -Very litde is left for me to say, after the able
arguments of my respectable associates; but, if I cannot add to
their arguments, I will try not to obscure the subject. We ought
indeed to render thanks to the gentlemen for keeping us from
gaping, by the multiplicity of their motions and interludes.
They have made so many points as to form a perfect chevaux
defrise in the stream of the prosecutiop, and to placQ an insur-
mountable bar between the prisoner and justice. This is the true
mode to get the prisoner off at all events; but not the way to get
him off with honour. If they wish to remove the blot ia his es-
cutcheon, they must submit to a candid examination of all the
testimony; they must cease their constant efforts to stifle the
evidence that operates against him.
The gentlemen have assumed what is not proved, that Willie
is an accomplice. But all their arguments and inferences founded
•n this assumptioa must be unavailing. We do not, and will not.
224
admit that he is an accomplice till it be proved: but, if an ac-
complice may be a vritatssjii fortiori a person who is not an ac-
complice may certainly be a witness: and that ap accomplice
may be , a witness, can be clearly shown by many respectable
authorities. I refer the court to 1 Mac Nolly ^ 192, 193, 194.
2. Hawk. 608. GUb, 122. Why should the law make an accom*
plice a witness, unless the court had a power to interrogate him?
This man cannot shelter himself from giving testimony, but by
showing some legal privilege or exemption. 1 Mac Nailt/^ 247.
253, 254, 255. All these authorities are strong and applicable;
but the last is directly in point. It is there stated, as clear law,
that the " claim of exemption from giving evidence is scrutinized
with a jealous eye; and the person relying upon it, must esta-
blish his right, by showing a positive law, or express autho-
rity." There it was determined, that it was no cause of exemp-
tion that the knowledge, which ^^ the witness had of the matter in
issue, arose from a confidential communication made to him^
in the exercise of his clerical functions; and which the prin-
ciples of his religion forbade him to disclose;" and that every
tnan is bound to discover what he knows of the matter in
^( issue unless he be specially exempted and protected by law."
They, say, that the witness is exempted by a rule of law. I will
examine what that rule is. It is laid down in Hawkins^ 609,
book 2, chap* 46, sect, 20. that ** it is a general rule, that a
witness shall not be asked any question, the answeriug of
which might oblige him to accuse himself of a crime." This,
sir, is a narrow rule, which they have blown up into an immense
magnitude. If the answer of the witness include guilt, he is
not bound to speak. Unless it oblige him to accuse himself of a
crime, he must make answer to any question propounded to
him; but what are the limits to the rule they contend for? What
are the limits of ^' a tendency to criminatef*^ Any question may
indirectly and remotely have a tendency to criminate or to pro-
duce any other effect. The rule they insist on, is almighty and
boundless; any witness may thereby screen himself from giv-
ing evidence against a person to whom he is attached. Like
the Cretan labyrinth, it can never be traced nor pursued;
and if the witness once get into it, you never can extricate him
from it. Does the witness know, that the answer he is to make
to this question, has a tendency to subject him to legal prosecu-
tion or punishment? I contend, that the precise question put,
must contain the criminating naatter; and that therefore a ques-
tion, to which an answer must criminate, must be put before the
court can arrest the inquiry. If we put questions, to which an-
swers may be made, without such an effect, the witness must
answc/ them. This question requires no such answer. If we
afterwards put a question to which the answer must subject to a
225
prosecution, it will be then time enough to arrest us. If the lettet
be treasonable, and he' were to answer ^^ Yes*' to the question,
whether he knows the C3rpher ; and if he knew it to be .treason-
able from the first, he might be endangered; but many links are
wanting to make a chain to bind Willie. Accomplices may be
witnesses, but they say, they nrust not be compelled to give evi-
dence that may tend to crimiiiate them. Tendency unlimited,
brings the rule to nothing. But I will meet them plainly. If we
ask the witness if he be guilty of treason, and he answer ^^ Yes,^'
his confession cannot be used against him. The ^^ confession in
open court," mentioned in the constitution of the United States^
applies to confessions on arrsdgnment, and to no other. It will
puzzle the learning of Mr. Martin to show a case of a witness
being exempted from answering questions applying to the point
in issue. The exemption, in the cases they rely on, extends only
to collateral points. Cases are frequent in the books, where
witnesses are examined to points, to defame or convict them-
selves, where they are questioned as to the issue. The cases in
Mac Nalh/j are always of questions put, not touching the issue.
In the trial of Readings 2 State Trials^ p. 802. 806. 822. the
question was to a collateral point. It was so in the earl of Shaftes-
bury^s case, in 3 State Trials^ 418; and so it is in all the cases.
They are not permitted to wander out of the track to defame
- witnesses. A confession by a witness, on oath, does not bind
him, because it is not voluntary. 2 State Trials^ 123. ChristO"
pher Lov^n case. Jackson's examination in that case» exactly
resembles this of Willie. It proves, too, that he was committed
not merely for refusing to swear, but also for refusing to tell the
whole truth. If Mr. Martin say it was merely for refusing ta
take, the form of the oath, what benefit would his taking the oath
produce, if he were not to answer the questions put to him^
That was only the case of an accomplice about to be mterrogated
as to the point in issue, and a difficulty was raised. This is a
very simple point; and the only way to authenticate this letter is
by the evidence of this witness, The prisoner is a great lawyer.
Is it supposed he did not guard his footsteps ^ Would he call two
witnesses to the letter? We want it not to go to the grand jury,
until we prove it his offspring, by this witness, who would not
tell one truth against him, if he could help it. They put their
hands on his mouth to prevent him from telling any thing he
knows; and he is so eager to secure the safety of colonel Burr,
that he employs counsel himself, to prevent him from being
obliged to reveal what he knows against him. I trust, therefore,
that this witness will be compelled to answer our questions.
Mr. Martin proposed to go on with the argument to-morro>v.
Mr. Hat wished it to go on this evening; that the publig
Vot. I. 2 F
226
ccmvenience required, that the evidence should be introdiiced at
this time to the grand jury,
Mr. Martin. — I will endeavour to answer first, the gentle-
man who spoke last. He says that we have made more points
than ever were made before; to which I answer, that no prose-
cution was ever conducted like this. He says that we ought to
court the fullest investigation. What! without the means of re-
pelling their unjust attacks, and the misrepresentations of their
witnesses. The privilege is not colonel Burr's, but that of the
witness. As to accomplices being witnesses, they may be, and
sometimes are so voluntarily, but never otherwise. As to the
witness employing counsel, he is right to do it to protect himself*
His own character and life may be endangered, and the counsel
for the defendant are not wrong in assisting to protect the witness*
A ^reat lawyer in the case of Callender did the same; and
there is no impropriety in either case; both are proper,
Mr. Wirt said that he would not follow the same track which
we had travelled. He has indeed followed different principles.
In all the cases which he has cited, the accomplice came forward
voluntarily; but he could not have been compelled *to give testi-
mony: there the objection went to the credibility not to the
competency of the witnesses. The accomplice having confessed,
cannot afterwards refuse to answer. He states, also, that an
accomplice being a competent witness by law, cannot be privi-
leged from giving testimony, without a special exemption. Now
all acco^nplices are persons expressly excepted by the law, un-
less they waive their privilege, and voluntarily come forwiard
and swear.
Mr. Wirt. — I deny that Mr. Martin stated my argument
correctly. It is not a confession that makes an accomplice a
witness. Confession does not prevent his being a wimess; but
it is not necessary to make him one. This doctrine is that of
approvers.
Mr. Martin. — All the cases are, where the accomplice
comes forward voluntarily.
Mr. Wirt. — Porter's examination, in State Trials^ was a
compulsory examination of an accomplice.
Mr. Martin. — That case is not authority. It is an arbitrary
doctrine. They have two strings to their bow, or rather two
stools to sit on, the treason and misdemeanor ; that they may re-
pose on the one, should the other fail them: but we trust that
both will fail them. The case of compulsory examination applies
to treason only. Lord Audley's was a case of rape, not of trea-
son. I know not why Christopher Love's case was introduced,
unless it were to show the coarse language used in those days
227
by prosecutors and judges. There is nothing else remarkable in it*
A man refused to swear, and he was committed for it. That a wit-
ness rmyhe committed for not swearing, but not for not answering
questions, is said to be my argument, and very uncandid deduc«
tions'are made from what is called my position. I never was so
weak as to think or to say, that a witness was obliged to be sworn;
and yet that he might withhold testimony, and be silent at his
whim and pleasure. No, sir, my position was only, that a witness,
having a legal reason for refusing to answer, wasnevei commit-
ted; and so far is it from being dependent on his whijn^t that he
must swear to the existence of this legal reason ; and as much
reliance is to be put on his oath, on this point, as on any other.
I ask the gendemen to produce any authority to show, that a
witness can be compelled to answer, where he thinks it can cri-
minate him; but no such authorit)' exists. As it was now late
Mr. Martin said, that he could not finish his argument to-day,
but hoped that the court would adjourn; and that he should.be
permitted to add some observations to-morrow.
The court then adjourned till to-morrow morning, at the
usual hour.
Wednesday, Jure 17th, 1807.
Mr. Hay stated to the court, that many remarks had been
made yesterday, respecting the letter addressed to Winburn (in
cypher); that it had been insinuated, that it had been taken im-
properly, if not feloniously from the post-oiEqe; that this was
evidendy done to affect the character of general Wilkinson, who
having been informed of it, wrote him the following note on
the subject :
Richmond, June irth, 1807.
Sir,
The letter addressed to Winburn, was delivered to me bv
Charles Patton, of the house of " Meeker, Williamson & Patton,'*
New-Orleans; and he informed me, was transmitted in the in-
closed envelope. Respectfully I am, sir, your obedient servant,
JAMES WILKINSON.
George Hay, esquire.
Mr. Martin requested to know, who opened the letter, or
who first broke the seal ?
The court said, that this was a question which was not now
before it. «
Mr. BoTTS said, that at a proper time, they would bring it*
before the court, as a substantive and' iq[dependexit inquiry.
228
Mr. Martin said, that general Wilkinson 'was not a proper
witness to remove suspicions from hrtnself* He then resumed
the argument which he left unfinished yesterday.
The great question is not, whether the witness ought to an-
swer or not ? But whether he is not the sole judge, whether his
answer to the question will criminate him or not ? I contend
that he is, and if it were otherwise, the provision in his favour
would be nugatory. He ought to answer no question, if it tend
or lead to criminate him.
The first gentleman who spoke for the prosecution, on this
point, manifested candour. He advised us not to wander from the
question. The advice was good; I wish they had fi^Uowed their
own advice. If good advice had been followed, the post-ofiices
would not have been violated. Was their advice given as a cau-
tion by these kind indulgent friends ? Or was it to excite preju-
dices against colonel Burr ? Many and strong attempts have
been made to prevent a fair trial. The newspapers, and party
writers, are employed to cry and write him dovm. His counsel are
denounced for daring to defend him. The passions of the grand
jury are endeavoured to be excited against him, and the very
judges denounced if they do not decide against him, at all events !
The laws of the country, on .the contrary, presume every man inno-
cent till he be convicted. How then can such proceedings be
justified ? On the trial before the petit jury, I admit that they
may declare as counsel that Burr is guilty; but at this stage of
the proceed^gs, every observation should be avoided that may
create or excite prejudices either on one side or the other. I
hope that the zeal of gentlemen will be moderated, and that they
will remember the benignity of the law, which declares, that it is
better, that ten guilty men should escape unpunished than that
one innocent man should be punished.
Gentlemen say, that they are about establishing the relevancy
of the paper. They do not know its contents, yet they take it for
granted, that it is material, because we oppose it* Heretofore it
has been the invariable practice to know^ in such cases, and to
produce^ evidence both of the contents and the relevancy of Such
exhibits. Suppose the letter were written in the French language,
they must procure a translator before they could read it as tes-
timony. Yet they cannot compel any body to translate it against
his will. A person ought to be specially sworn as an intrepreter,
to translate truly and faithfully. If they could not translate it
themselves, they ought to have procured some person to do it, for
the court is not bound to find a translator.
The gentlemen say, that there is this distinction, that a wit-
ness is not compelled to answer where the point to which he is
questioned is not in issue, but that he must answer where it is in
issue. No such distinction exists. ^^ No evidence ought to be
3S»
admitted to any point, but that on which the issue is joined.^' This
IS manifest from Mac NaUy^ /r.'2, and is the first rule of evidence
therein stated. The court is to judge whether the evidence be
pertinent to the issue or not.
Mr. Hat. — That is what we want.
Mr. Martin. — I am not arguing about that; but demonstrat-
ing, that no such distinction exists. I refer the court to Har'
gravels Index to the State Trials. " A wimess is not compelled
to answer where it tends to criminate him, nor where it does not
relate to the issue."
Mr. Hay and Mr. Wirt wished to see the pages referred to.
Mr. Martin. — They are cases in the second State Trials^
and already commented upon. .1 cite this authority only to show
Hargrave's opinion. He certainly is of opinion, that if a wit-
ness imagines a- question has a tendency to criminate him, or
subject him to a penalty, he is not bound to answer it.
Mr. Martin then read Hoffmanns argument in the trial of
Smith, to show the question put to Ogden, concerning the Le-
ander's destination. He also quoted the question put to Mr.
Ogden, relative to his first acquaintance with Miranda; when
the court appeared to be of opinion, and admitted the principle,
that Mr. Ogden was not bound to answer any question which
might criminate himself^ but yet declared that he should answer
these questions put to him, page 95, 96, 98.; and added, that
Talmadge's opinion was of no consequence, but which was not
admitted by the counsel on the other side.
Mr. Hat. — It is irregular, to read the arguments of counsel
as authority.
Chief Justice. — It is regular to read them only as argu-
ments. '
Mr. Hat requested Mr. Martin to read the arguments in the
same case, on the part of the prosecution.
Mr. Martin, after some conversation on this point, read the
words of the prosecutor^ in the same case, and the argument of
Colden, for the defendant, and a part of the arguments' of Mr.
Edwards, one of the counsel in the same case. There, it was
evident that the court was wrong. There was a question refused
by Ogden to be answered. From the arguments and observa-
(ions of counsel, I infer, that they waived their right to enforce
die law against Ogden. They declined at that time calling oft
the court to enforce its decision, in respect to Ogden's answer-
ing, but said, that they did not waive the right to call upon him
thereafter; but. they never exercised it. From which it may be
reasonably inferred, that they had not the fullest confidence in
the opinion of the court, but thought it erroneous or doubtftd.
B
230
As to the case df the United States against Geoseljr, the
counsel merely objected from memory; Mr. Wirt only read a
part of it from Call's manuscript report of it, p. 140. But ^hy
did not the gentleman read the whole of that 'case ? If he had
read another part of it, it would have explained the law much
more fully, and proved that a witness could not be compelled to
answer a question, which might tend to implicate or criminate
himself. [Here the case of the United States v. Goosely was
fully read. Vide ante^ p. 222.]
Here then is a decisive authority th^t my position is correct^
as far as the opinion of one very respectable judge (judge Ire-
dell) goes.
Mr. Martin then read from Mac Nally^ t. 258. the authority
relied on by the other side, the case of the Kmg against Edwards^
accused of grand larceny. One of his bail was^ asked whether he
had not stood in the pillory for perjury ? The question was ob-
jected to as tending to criminate him, but over-ruled. He said,
that both in England and Maryland, and in every state whose
laws he had had occasion to investigate, the law exempted
in penal cases a witness from criminating himself. This case, in
Mac Nally ^25^. TLnA^Term Reports^ 440. is the only authority
relied on as establishing the opinion, that a witness may be ex-
amined as to matters that make him infamous. It means, where
a witness has been convicted of an infamous crime, and has
suffered the execution of the judgment, that he may be question-
ed as to that fact. That was a case where bail was called on to
justify as to the sufiBciency of his property, and the objecti9n was
to his credibility, on account of his former infamy, where he had
been punished, but could not be subjected to any further penalty.
I doubt, however, this authority. The prosecutions for treason
in England have been generally conducted with candour and
gentleness. These authorities, (or rather this authority, as there
is but one case) however they may be justified, are more rigid,
than formerly. They are of modem invention. The mild maxim
of the law is,N"n^7n^ tenetur seipsum accusare,^^ Even after a
man is pairdoned for a crime, he is not bound to show his own
former turpitude or infamy : 2 State Triais^ 822. An additional
authority on this point is 1 Mac Nally^ 212. rule the sixth, where
it is said, that ^^ whenever the competency of a witness is object-
ed to, on the charge of conviction and judgment on an infamous
crime, the party making the charge must produce in the court
the record of the judgment, sub pede sigilli^'* which shows, that
such evidence could not be extorted from the witness himself.
There was no instance of such doctrine until the decision of the
King V. Edwards, in 4 Term Reports. Until that decision, the
rule of law was sacred, that a record was necessary to be pro-
duced to prove perjury. The relaxation •f the law, with respect
231 .
to witnesses, is for the benefit of the party, because he does not
know what witness will be brought against him* Peake^ 88.
explains this to be the reason. That a witness may be asked,
whether he had been convicted and punished \ 4 Term Reports^
440. was a decision in the year 1791, since the revolution. It
may be no authority. We do not know, whether our courts of
justice will adopt this law-rule or not. It has not been adopted
in Maryland. It has no bearing on the question. The true ques-
tion is, whether the court has a right to inquire into the cir-
cumstances, or whether the witness is the sole judge, whether
he ought to answer or not ? Let us revert to the authorities be-
fore cited by us. Mac Nallyy 256. ^^ Hilsley, a roman catholic
witness, being again asked by Titus Oates, by virtue of his
oath, whether the house where he lodged, at St. Omers, was
not governed by priests and Jesuits V^ That was apparendy an
innocent question; but as it might be made a link m a chain of
testimony, that would criminate him, the chief justice said it was
not a question fit to be asked, and told the witness that he was
not boimd by his oath to answer it. Mac Nally has put in, that
he was a roman catholic priest, but nothing appears (in the re-
port of the same case in State Trials) to the court, of his, being a
priest. The court determined that they were not to go into the
circumstances; because, thereby, facts, criminating the witness,
would be disclosed, in order to show how an answer to the ques-
tion would criminate him, so that by his answer, he would lose
the privilege of the law. In the case of the voir dire^ if a wit-
ness think himself interested, he is excused from being sworn.
We admit, that in this case, the witness may be sworn; but in-
sist that he is ilot to answer questions which he thinks may tend
to criminate him. His being interested, ought to exempt him
from giving evidence, as in the case of the voir dire* There is
no difficulty in going into circumstances on the voir dire. Dis-
closures can do no injury. But it is not so, if he think himself
interested: he is excused, without any examination into circum-
stances. This rule is laid down explicidy in Mac Nally ^ 140. that
*^ if a witness think himself interested, although, in point of
fact, he is not, he should not be examined as a witness." A
fortioriy in a case where his honour, fame, and life are in quesdon,
if a witness think that his answer will criminate him, he ought
not to answer% Does it not apply with tenfold force ? It would
drive men to perjury, if witnesses were compelled to answer in
such circumstances ; and lord Mansfield has always laid it down
as a great maxim, that men ought not to be e^^posed to temp-
tation.
But it is said, that if an attorney be called to give evidence,
the court ought to decide whether he ought to be excused, and
that he isi not judge for himself. By analogy, this is in our
232
favour. The privilege belongs not to the attorney, but to the
client. The court in such cases, only asks him, whether his cli*
ent made the communication to him as an attorney, or other-
wise ? but the court goes no farther. So in this case they ought
only to ask the witness, if he think his answer will criminate
himf and it is impossible to obtain from him an explanation of
the effect of his answer, without taking away from him the pro*
tection of the law.
If he gave it secretly to the judges, they might be compelled
to reveal it, however confidentially communicated. The autho-
rity in 1 Cranchy in the case of Marbury v. Madison, is said
to be conclusive in their favour. I thank them for adducing it*
It is strongly in our favour, because there, the witness was not
compelled to give the evidence required. Gentlemen say, that
they disapprove of part of the authority; and so I disapprove
of so much of it as declares that the court did not think them-
selves empowered to issue the mandamus to the secretary of
state. They say, that in that case, the witness was bound to
state, and did state his objection to answer. We admit it, and
we stat^ our objection. The witness says, " It tends to crimi-
nate me," and this objection is sufficient.
But gentlemen say, that we have produced no authority in
support of our argument. I insist diat the opinion of judge
Iredell in Goosely's case, and the case referred to from
9 State Trials^ are conclusive in our favour. The attorney for
the United States has told us, that he expected a great deal
would be said by us, but it would not produce conviction on
his mind. We hope to convince the court, but we do not expect
to produce conviction on the impenetrable mind of Mr. Hay,
which is harder than Ajax's seven-fold shield of bulls' hides.
I do not think it necessary to say more, than once more to ex-
press our hopes of a favourable decision.
Mr. WicKHAM. — ^I shall add a few remarks to what has been
already said, and trust that the importance of the subject will
be my excuse. I mean, that the principle is of very great im-
portance; for as to the paper, it is of but little.
They contend that colonel Burr is liable for the letters of
persons connected with him, however remote the connexion,
and whatever may be the contents of the letters. This principle
is top general, and more dangerous than it is comprehensive.
We do not admit it, either in its application, or in the extent
insisted on. It may be construed in the most dangerous man-
ner. Blannerhasset, stated to be connected with him, is said to
be imprudent and of a singular turn of thinking. Is colonel
Burr to be responsible for all his actual and verbal eccentrici-
ties, merely because he was acquainted with him? I thought
233
before, that no man was liable for the acts of another, unless
done by his authority or contrivance. Though we do not ad-
mit principles contended for by the gentlemen on the other
side, (which we sincerely believe to be unjust and unfound^
ed,) yet as it is not impossible but the court may decide against
us, it is our duty to oppose them. This is a governing princi*
pie which may run through the whole cause, and will apply to
every other similar evidence. We deem it our indispensable
duty to oppose the testimony now adduced, to affect colonel
Burr with the acts of others. Was it fair to sound so much
alarm and prejudice throughout the whole country, becaus^ we
atated and availed ourselves of these legal objections? I am
not well acquainted with that branch of the science which is
called criminal law, and I hope to become less so; but I had
always thought, that more protection was necessary, and af-
forded by the law, tor the rights of individuals, in criminal than
in other cases. If other prosecutors act like these, I am mis-
taken. I never knew before, declarations made against any
person for standing on the rules of law. I never knew before,
that a citizen is to be reviled for adhering to the laws of his
country. The court ought to stop gentlemen who make such
an objection.
But it is said, that *^ public prejudice is excited by his mode
of defence!" If his claiming legal rights excite prejudice, we
need not try him, but convict him at once without a trial. The
witness ought not to be compelled to answer. The examina-
tion of facts leads to the discovery which he seeks to avoid.
He is on his oath. If he commit perjury in answering this in-
terrogatory, he would do so in any other case. The questions
asked a (roman catholic) witness, what business he had at
St. Omers six years before, and what profession he was of, are
innocent questions; yet in both instances, the witness was ex-
cused from answering, because he thought it would crimi-
nate him.
They tell us, ^^ that this objection admits the guilt of colo-
nel Burr." No, it only admits that he is under prosecution.
Does it not endanger this young man of being arraigned, if he
own connexion with colonel Burr. Is not an innocent man in
danger of conviction by perjury? The whole strength of the
government is exerted against the prisoner. The government
would not suborn witnesses; but bad men might think to ren-
der an acceptable service by swearing fiEdsely against a party
under prosecution. The danger is real, though the party ac-
cused is innocent
As to Goosely's case, gendemen suppose me mistaken.
Mr. Wm. Marshall's (the clerk of this court) recollection cor-
responds with mine. Our remembrance is confirmed by Mr.
Vol. I. . * 2 G
X
234
Randolph, who was counsel in the cause, and by the judge<
Reynolds was an accomplice, and was proved, by the finding
of the grand jury on the record, to be an innocent man, and it
was determined that he was not bound to give testimony
against Goosely, because it might tend to criminate himself.
The case is the same here. Willie, the secretary of, is con-
nected with, Burr, They might send up to the grand jury
a bill of indictment against him, if they did not think him
too insignificant. The witness, like most other men, may
estimate his own importance more highly than others might
be disposed to do. A question, " where were you on such a
day?" is an innocent one; yet, as it might tend to criminate him
by being connected with other evidence, the court excused a
witness from answering it. The question at present before the
court is of the same nature, and his answer may be made,
with the aid of other testimony, to criminate him.
As to the authority from Mac Nally^ that a man is bound to
answer the question, whether he had been punished for a crime
or not? I shall observe, that a man^s answering, whether he
had been punished, cannot injure his character, because the
punishment iV public : if it were private, he would not be com-
pelled to answer. Every man is indifferent until sworn. He
ought to refuse to be sworn to any inquiry tending or leading to
implicate him. The secret is locked up in his own breast : you
cannot know that such a secret exists until he be examined, and
you have no right to extort it from him to his own injury. I am
sorry that so much time is consumed on so plain a question ;
but as it is important, as it respects the progress of the inves*
tigation, I hope we shall be excused.
Here some conversation ensued between Mr. Wirt and Mr.
Martin, respecting the legal authorities referred to by Mr.
Wirt, and supposed to have been admitted by Mr. Martin.
After some further desultory conversation, the chief justice
asked whether there were any other question before the court?
Mr. Mac Rae requested a decision on Dr. BoUman's case,
as he wished to interrogate him about the cyphered letter.
Mr. Williams was ready to discuss the question.
Mr. Burr. — There will arise some very important ques-
tions, affecting the very sources of the jurisprudence of this
country. I have several affidavits to produce, to show that im-
proper means have been used to procure witnesses, and thereby
contaminate the public justice: -when these proofs have been
duly exhibited, it will be the province of the court to decide,
whether they will not arrest the progress of such improper con-
duct, and prevent the introduction of such evidence.
235
Mr. BoTTs.-^I rise to apprise the opposite counsel, that .
there are three or four questions of considerable importance,
which we shall, bring forward as soon as possible* Two or three
days ago, I commented upon the plunder of the post-offices;
and I assure the counsel for the prosecution, that I shall probe
that subject to the bottom; as no man can be more anxious
than myself, that the stigma which this transaction attaches to
the inferior or superior officers of the government, should be
wiped off. As a private citizen, or as counsel for my client, I
shall be sincerely pleased with a fit opportunity -of retracting
the expressions which I have employed. The court will at once
perceive the necessity of going into, this inquiry at a very early
period; for if the officers of government have hitherto broken
open letters from colonel Burr, they may hereafter resort to
the very same expedient; and by thiis obstructing the very
medium of communication between colonel Burr and his wit-
nesses, prevent him from summoning them, and preparing for
his defence* One more remark: yesterday I understood Mr*
Hay to charge us with having made certain insinuations against
persons not actually named. He demanded, why we had not
forbom these charges, until we were prepared to support them ?
That remark, sir, struck me with peculiar force. I was of the
same opinion, that some proof ought to be produced; I imme-
diately rose and professed my wishes to go into an investiga-
tion of the case. But, sir, little did I expect that the gendeman
would have proceeded to have justified these crimes. Little
did I expect that such felonious transactions should have been
blazoned into mighty virtues, or that it would have ever been
maintained in this court, that the persons who had failed to
plunder the post-offices, would have been guilty of a derelic-
tion of their duty. The offer to go into the evidence operated
as magic: he justified what he had before denied. I wish, sir,
to explore the post-office laws to see whether they do not con-
tain some provision, prohibiting the introduction of testimony,
thus illegally obtained.
Chief Justice. — Unless these allegations affected some
testimony that was about to be delivered, how can you intro-
duce this subject?
Mr. Hay informed the court, that colonel Morgan was at
that time before the grand jury, nnd they had sent for ii letter,
from Aaron Burr to him. Should the letter (holding it in his
hand) be sent to the gi-and jury?
Mr. BoTTS requested to see it. Here, said he, is a small
piece of newspaper attached to it, which ought not to accom-
pany it before the grand jury.
S36
Mr. Burh. — 1 have noobjection that any of my letters should
be sent up; but I trust, sir, it will be separated from this bit
of a newspaper, and this comment which Mr. Morgan has at*
tached to it.
The letter was handed to the Chief Justice ; who observcdt
that the only use of the newspaper Was to show, that at that
time colonel Burr was at Pittsburg*
Mr. Hay said, it was nothing more than to refresh his me-
mory.
The Chief Justice decided, that it was right to dissever it
from the letter: the newspaper itself was no evidence; but if
colonel Morgan would wish to refresh his memory, there could
be no objection. They were accordingly separated -by the di-
rections of the court, one was sent to the grand jury, and the
other to colonel Morgan.
Mr. Burr. — The court has very properly demanded some
proof of the relevancy of our proposition. Sir, we are ready to
prove the violation of the post-office. We are ready to fasten
It on individuals now here, and we are ready to name the post*
offices, if the court, require it, which have been thus plundered.
When it comes out, that evidence has been thus improperly ob-
tained, we shall say, sir, that it is contaminated by fraud. I wilt
name three persons who have been guilty of improper conduct,
in improperly obtaining letters from the post-office, to be evi-
dence against me. These are Judge Toulmin, of the Missis-
sippi Territory, John G. Jackson, a member of congress, and
general Wilkinson. Two of these persons are within the reach
of this court. As well as the improper manner in which they
have procured affidavits and witnesses against me, I mention
these circumstances for two reasons: First, that the facts may
be proved to the satisfaction of the court ; and, second, that the
court may lay their hands on testimony thus procured.
Mr. BoTTs. — The circumstance of the post mark proves
that the post-office was robbed of that letter ; therefore it is
not evidence.
The Chief Justice said, let the consequences be as they
may, this court cannot take cognisance of any ^ct, which has
not been committed within this district. That mark is not neces-
sarily a post mark. The court can only know the fact, in a case
to which it applies, except to commit and send for trial.
Mr. Hay. — Let some specific motion be made, and the evi-
dence procured ; and if there have been any crime committed,
let the offenders be prosecuted according to law. These gen-
tlemen know the course; and I most solemnly promise to dis:«
237
charge the duties of my office, whether they bear against geae-
ral Wilkinson, or the man at the bar. If the crime have been
committed, it is not the province of the court to notice it, till
after an indictment has been found.
Mr. BoTTS. — ^We only wish to prove, and prevent a repeti-
tion and continuance of this improper mode of proceeding* The
proof will affect general Wilkinson.
Chief Justice. — If it did affect general Wilkinson, it could
not prevent him from being a witness.
Some desultory conversation here ensued, when Mr. Burr
observed, that he was afraid he was not sufficiently imderstood,
from mingling two distinct propositions together. As to the sub-
ject of the post-offices, it might rest for die present; but as to
the improper means employed in obtaining testimony, they
were at this moment in actual operation. Some witnesses had
been brought here by this practice ; stnd it was one which ought
immediately to be checked: he did not particularly level his
observations against general Wilkinson. He did not say, that
the attorney for the United States ought to indict, or that such
a crime if committed out of this district was cognisable by the
court, unless it be going on while the court is in session, or the
cause depending; in those cases improper practices, relative
to crimes committed out of the limits of this court, may be
examined, and the persons committing them attached. Such
practices have been since I have been recognised here, and
they ought to be punished by attachment.
Mr. Wirt. — I do not yet understand the gendemen. What
is the object of their motion ?
Mr. BoTTs.^-We shall hereafter make it; we have no other
object by the present annunciation, than to pve gentlemen a
timely notice of our intentions.
Mr. Burr. — ^We have sufficient evidence on which to found
our motion.
What motion? demanded Mr. Hat.
Mr. BuRR.--^I thought, sir, I had sufficiendy explained my
intentions. I may either move for a rule, to show cause #hy an
attachment should not issue against judg^ Toulmin, John G.
Jackson, and general Wilkinson, or what is sometimes, though
not so frequendy practised, I may direcdy move for an attach-
ment itself.
Mr. Mag Rae. — At whose motion?
Mr. Burr. — ^At the public's.
238
Mr. Mac Rae. — A pretty proceeding indeed! that thepubi*
lie prosecution should thus be taken out of the hands of the
public prosecutor, and that the accused should supersede the
attorney for the United States!
Mr, Burr. — A strange remark indeed! As if it were not the
business of the injured person himself to institute the com-
plaint*
Mr. Hay. — I wish for farther explanation. Let the specific
charge, on which their motion is founded, be clearly pointed
out and reduced to writing.
Mr. Burr. — The motion will be for an attachment, for the
irregular examination of witnesses, practising on their fears,
forcing them to come to this place, and transporting them from
New-Orleans to Norfolk.
At this moment Mr. Randolph entered the court, and ob-
served, that if he had been present, he would have, himself,
opened this motion; which was intended to operate imme-
diately upon general Wilkinson, and ultimately upon some
other persons. Mr. Randolph here read the motion which he
would have submitted to the court.
Mr. Hay protested against this proceeding; which was cal-
culated to interrupt the course of the prosecution ; and was
levelled at general Wilkinson alone. He asked, why these
hints? Why these mysterious looks of awe and terror, with
which gentlemen come into this court, as if they had some-
thing to communicate which was too horrible to be told? Was
Mr. Randolph (when attorney general, it is presumed he
meant) ever interrupted in the midst of one prosecution, by in-
troducing another? Do they wish to intercept general Wilkin-
son from going to the grand jury ? Mr. Hay claimed from the
court; a priority for the business of the United States. Let the
present prosecution be concluded; and gentlemen may then
proceed with their investigation into the conduct of general
Wilkinson.
Mr. Randolph. — ^The gentlemen, sir, will understand this
subject much better to-morrow. I understood the motion was
to be (>ostponed till to-morrow ; but as he asked for some inti-
mation of our designs, I thought proper to accompany it with
a few remarks. And, sir, if this affair be really so stupendous,
as I conceive it to be, if it be true, [Mr. Bay exclaimed that
it was not.] is it not entitled to the most serious inquiry? If
this subject bear upon the present case, though it may influence
the result of the trial, ought it to be suppressed? Your honour
will direct me when to come out; and I assure your honour,
239
that it is not merely conjecture, but fact. I shall come forward
with the affidavit of one of the witnessess to support our motion.
Mr. Martin.— The gentleman is on his heroics. He will
protest where? In the Argus, I suppose. He hopped uplike a
parched pea, to make his protest agamst our motion. He insists
t^at we shall postpone it till the trial is over, and the evil is
done ! ! The court and grand jury may be engaged in twenty
different prosecutions at the same time. We shall prepare our
motion, and make it to-morrow.
Mr. Hay. — I hope the court will decide not to hear it till this
business is over. My protest will not have the tenth part of the
eflFect of the attic wit of Mr. Martin. I have a great deal of feet-
injr^ but it is not such as can be excited by the elegant comparisons
ofthat gentleman. Comparisons are always odious. This is ex-
pressive of contempt, and is viewedas it ought. Mr. Hay then ex-
patiated at some length. He understood the object of this motion
was to affect the credibility of general Wilkinson's testimony;
and in what way? He presumed that the court wojuld not notice
the pretended transactions which had been alluded to, in any
other way, than as amounting to a contempt. As to any other
offence against the laws of the United States, the true course
would be, to proceed in the way of a presentment, or indictment
in the regular way. Now, what are the principles of the law of
contempt, in relation to this subject? General Wilkinson is said
to have taken the depositions of certain persons in New-Orleans,
an(d then to have brought these reluctant witnesses hither by
military force. This is the only ground of the contempt against
this court? But how can a contempt be committed? Either by
directly insulting this court, or abusing its process, or interrupt-
ing its justice. Will it be said, that general Wilkinson's conduct
comes under either of those descriptions?
Gentlemen have very often been pleased to put words into our
mouths; and on one occasion, they have made us to say that ge-
neral Wilkinson is the " pivot of the prosecution." And is it diis
very pivot which they are now attempting to remove or pare
down, by this precipitate application? It is my duty to vindicate
him from this unjust charge, which is as immaterial as it is un-
just. Are the communications between the court and the grand
jury to be thus interrupted? Is their examination to be sus-
pended, until general Wilkinson has been put upon his trial? If
. these suspected transactions do amount to a contempt of this
court, it is not my business, officially to notice itr Jt is of no
consequence to them whether they prevail in their motion or
not; their purpose is attained; their pompous declamation, that
Wilkinson is a despot, and acted tj^rannically, is intended to
excite prejudice against him.
240
Mr. Hat then said, that he should move to postpone the mo*
tion of gentlemen, until the prosecution was over; for several
reasons: because it would necessarily interrupt the business be-
fore the court; because it was intended to impeach the credit of
a witness; and because this inquiry could be as well conducted
after as before the prosecution.
Mr. Mac Rae.— -I will affirm, sir, in the presence of this
court, and the surrounding people, that the charge now adduced
against general Wilkinson, is completely unfounded. I affirm,
that no witness has been brought forcibly by general Wilkinson
from New-Orleans; one individual came reluctantly escorted;
who, refusing to obey the summons of the government, was
regularly brought before a magistrate, for his disobedience, and
dealt with according to the due course of law ; and who is now
in the custody of a person before this court. All the rest came
as good citizens ought to have done; and the only fault which
can possibly be attributed to them, if it be a fault, is, that they
came in the United States vessel, in which general Wilkinson
was authorised to come.
Mr. WiCKHAM.— May I request the liberty, sir, of making a
few remarks upon Mr. Hay's motion? Colonel Burr brought
forward his motion in the amplest style possible. There was no
imputation; there was no attempt to excite the public feelings.
He merely stated his object in the most general terms; he ought
to have been understood. The gentlemen, however, misunder-
stood him. Tbey required a specification of our designs; we
gave it to them in writing, and then we promised to bring for-
ward our motion to-morrow. They still insisted upon a more
particular explanation of our points; and Mr. Randolph rose and
spoke to gratify them. Nothing, however, seems to please those
gentlemen. They not only found fault with the motion, but the
looks of Mr. Randolph* He will scarcely, however, change his
tsLCt to please them. It is precisely such as God Almighty gave
him.
Mr. Hay, sir, has got into parliamentary habits; and talks
very fluently of the previous motion. These things are novel
to me, who am a mere lawyer. On this motion, I will make but
one remark. The constitution has divided the powers of the go-
vernment among these great departments; the legislative, execu-
tive, and judiciary. These must be kept separate and distinct,
not only in their duties, but in their practice. The legislature act
upon expedtency^ the judiciary act upon righu The gentleman,
however, seems to think himself suddenly transported to the le-
gislative hall; and no doubt, would soon think it very convenient
to hang colonel Burr. He tramples all our judiciary forms under
foot; if we make a motion before the court, he soon trips up the
241
lieeh of ours with his previous motion; but he has no ririit ta <fe
so. And where is his doctrine to end? We certamly hare dw
same rights which they have; and as they have moved the pre*
vious question, we move, sir, that the court shall not hear their
motion. This will be ringing the changes without end: it is a new
invention. It is better tlutt we send these parliamentary distinc-
lions to the other side of the house, where they ought for ever to
remain.
Mr* Hay says, that this motion ought not to be made pendente
lite^ 9nd that he ought to be tried like other people. Sir, colonel
Burr ought to have the same justice meted out to him, which i$
meted to every other person. He stands here on the same foot«
ihg, and with tne same privileges, as any other citizen in his situa*
tion. I assert, that any other man would have a right to this
attachment; and that the motion ought to be made pendente lite^
if at all. ^^ Why, (they loudly ask us) does he make it at this
time?" *^ Why does he not postpone it till after the prosecution?"
Why, sir, when colonel Burr is discharged, (and I hope he will
shonly be so) he may not be disposed to trouble the court any
further. How long this prosecution will last, no one knows: per-
haps a week; perhaps longer. It is already gone so far beyond
our expectations, that it is impossible to conjecture. Now, sir,
may not similar contempts occur? Is it not necessary to restrain
certain people, by convincing them, that such practices make
them liai)le to punishment? But they say, that these charges are
no foundation for a motion. Our object is not to inflame the
public mind: facts will sufRce. And what has general Wilkinson
done? He has brought witnesses widi him from New-Orleans,
by military force. He has taken their depositions entirely ex parte
at the point of the bayonet; yet there is no horror in all this,
for the purpose of keeping their testimony straight! I lay down
this broad position: that the man, who goes about collecting
affidavits upon affidavits, corrupts the fountains of justice. We
have already seen a volume of such at this bar. [Mr. Hay. Did
they come from New-Orleans?] I did not say irom New-Or-
leans. I might have particularly mentioned Mr. Jackson, who
comes here with the depositiotis of witnesses, who are thus bound
hand and foot, thus tongue-tyed, because their depositions had
been taken. Sir, I saw tifiem in this very court examining wit-
nesses with affidavits in their hands, and comparing the one
widi the other: depositions taken not by commission, but ex parte*
When an interested agent thus goes about collecting depositions,
and with ignorant men, shaping them just as he pleases; I aver,
that they are contrary to law, and to the spirit and genius of our
government; that they are a contempt upon this court, if done
during the prosecution, by interfering with the purposes of jus-
tice. Such men are liable to an auachment, from the very mo-
VoL. I. 2 H
242
meat when the government toek possession of colonel Burros
person; not from the moment of his first arrest, but from the
time when they ordered Perkins to conduct his prisoner from
Fredericksburg to Richmond*
The gendeman has enumerated three species of contempt:
but the enumeration is certainly imperfect. Does the gendeman
khow nothing of prosecutions for libels on the court or on the
parties? The publication of a handbill against a party is aeon-
tempt of the court, because the administration of justice is af-
fected by it. All acts to defeat justice, or to influence the public
mind pendente Vtte^ are, for the same reason, contempts of the
court* Such contempts have been punished in Europe and in
this country. I repeat it, that whoever does any act to influence
the administration of justice is liable to an attachment* But
they say, our object is to aflect general Wilkinson. He is a
competent witness, however arbitrary he may be. His credibi-
lity will be judged of from alLthe circumstances. Does general
Wilkinson shrink from the investigation?
Mr. Hat. — You know he does not.
Mr. WicKHAM. — The attorney for the United States charges
us with interrupting the prosecution. Our motion is founded on
right, and we will prove its truth. He need not attend to it. If
the court have not the right to grant our motion, we shall la-
ment it. We hope the courj( will hear our motion to-morrow.
The Chief Justice said, that the pendency of the prose-
cution was no objection t6 hear the motion: but it was another
question, whether there were any grounds for it or not ; and that
the court would not say, that a motion, relating to the justice oF
the case, ought not to be heard.
Mr. Hay wished it postponed to a later day; and insisted,
that admitting the charges were true, they could have no legal
effect on the prosecution* He said, he would repeat his motipn
to postpone the inquiry.
Mr. Martin and Mr. Botts denied it; and after some de-
sultory conversation, the court adjourned till to-morrow.
Thursday, June 18th, 1807.
As soon as the court met, the Chief Justice delivered the
following opinion, in the case of Willie:
In point of law, the question now before the court relates to
the witness himself. The attorney for the United States offers
a paper in cypKer, which he supposes to have proceeded from
a person, against whom he has preferred an indictment for high
treason, and another for a misdemeanor, both of which are now
before the grand jury ; and produces a person, said to be the se-
243
cretary or clerk of the accused, who is supposed either to hive
copied this paper by his directions, or to be able to prove, in some
otner manner, that it has proceeded from his authority. To a
question, demanding whedier he understands this paper, the
witness has declined giving an answer, saying, that the answer
might criminate himself; and it is referred to the court to decide,
whether the excuse he has offered be sufficient to prevent his an-
swering the question which has been propounded to him.
It is a settled maxim of law, that no man is bound to crimi-
nate himself. This maxim forms one exception to the general
rule, which declares, tliat every person is compellable to bear tes-
timony in a court of justice. For the witness, who considers
himself as being within this exception, it is alleged, that he is,
and from the nature of things must be, the sole judge of the
effect of his answer: That he is consequently at liberty to refuse
to answer any question, if he will say upon his oath, that his an-
swer to that question might criminate himself.
When this opinion was first suggested, the court conceived
the principle laid down at the bar to be too broad, and there-
fore required, that authorities in support of it might be. addu-
ced. Authorities have been adduced, and have been consider-
ed. In all of them, the court could perceive, that an answer to
the question propounded might criminate the; witness, and he
was informed, that he was at liberty to refuse an answer. These
cases do not appear to the court to support the principle laid
down by the counsel for the witness, in the full latitude in which
they have stated it. There is no distinction, which takes from
the court the right to consider and decide, whether any direct
answer to the particular question propounded, could be reason-
ably supposed to affect -the witness. There may be questions,
no direct answer to which, could, in any degree, affect him; and
there is no case which goes so far as to say, that he is not bound
to^nswer such questions. The case of Goosely in this court is,
perhaps, the strongest that has been adduced. But the general
doctrine of the judge in that case, must have referred to the
circumstances, whidi showed, that the answer might criminate
him.
When two principles come in conflict with each other, the .
court must give them both a reasonable construction, so as to ^
preserve them both to a reasonable extent. The principle which
entitles the United States to the testimony of every citizen,
and the principle by which every witness is privileged not to ac-
cuse himself, can neither of them be entirely disregarded. They
are believed both to be preserved to a reasonable extent, and
according to the true intention of the rule and of the exception
to that rule, by observing that course which, it is conceived,
courts have generally observed. It is this:
244
When a question is propounded^ it belongs to the court to
consider and to decide, whether any direct answer to it can im-
plicate the witness. If this be decided in the negative^ then he
may answer it without violating the privilege which is secured
to him by law. If a direct answer to it may criminate himaelf,
then he must be the so)e judge what hia answer would be*
The court cannot participate with him in this judgment, be-
cause they cannot decide on the effect of his answer without*
knowing what it would be; and a disclosure of that fact to the
judges would strip him of the privilege which the law allows,
and which he claims. It follows necessarily then, from this state-
ment of things, that if the question be of such a description,
that an answer to it may or may not criminate the witness, ac-
cording to the purport of that answer, it must rest with himself,
who alone can tell what it would be, to answer the question or
not. If, in such a case, he say, upon his oath, that his answer
would criminate himself, the court can demand no other testi*
mony of the fact. If the declaration be untrue, it is in conscience
and in law as much a perjury as if he had declared any other
untruth upon his oath; as it is one of those cases in which the
rule of law must be abandoned, or the oath of the witness be
received.
The counsel for the United States have also laid down this
rule according to their undentanding of it; but they appear to
the court to have made it as much too narrow as the counsel
for the witness have made it too broad* According to their
statement, a witness can never refuse to answer any question,
unless that answer, unconnected with other testimony, would be
sufficient to convict him of a crime. This would be rendering
the rule almost perfectly worthless. Many links frequently com-
pose that chain of testimony, which is necessary to convict any
individual of a crime. It appears to the court to be the true
sense of the rule, that no witness is compellable to furnish ^y
one of them against himself. It is certainly not only a possible but
a probaUe case, that a witness, by disclosing a single fact, may
complete the testimony against himself; and to every eflFectual
purpose accuse himself as entirely as he would by stating every
circumstance which would be required for his conviction* That
fact of itself might be unavailing; but, all other facts without it
would be insufficient. While that remains concealed within his
OMm bosom, he is safe ; but draw it from thence, and he is ex-
posed to a prosecution. The rule which declares, that no man
is compellable to accuse himself, would most obviously be in-
fringed, by compelling a witness to dbclose a fact of this de*
scription.
What testimony may be possessed, or is attainable, against
any individual, the court can never know. It would seem then,
that the court ought never to compel a witness to give an an-
5245
swer, which ditcloses a fact that would form a necessary and
essential part of a crime, which is punishable by the laws.
To appty this reasoning to the particular case under conri«
deration : To know and conceal the treason of another is mis-
S»rtsion of treason, and is punishable bylaw* No witness, there-
ore, is compellable by law, to disclose a fact which would form
a necessary and essential part of this crime. If the letter in
question contain evidence of treason, which is a fact not de-
pendent on the testimony of the witness before the court, and,
therefore, may be proved without the aid of his testimony; and
if the witness were acquainted with that treason when the letter
was written, he may probably be guilty of misprision of treason;
and, therefore, the court ought not to compel him to answer
any questipn, the answer to which might disclose his former
knowledge of the contents of that letter.
But if the letter should relate to the misdemeanor and not
to the treason, the court is not apprised that a knowledge and
concealment of the misdemeanor would expose the witness to
any prosecution whatever. On this account^ the court was, at
first, disposed to inquire, whether the letter could be decypher-
ed ; in order to determine from its contents, how far the witness
could be examined respecting it The court was inclined to this
course from considering the question as one, which might re-
quire a disclosure of the knowledge, which the witness might
have had of the contents of this letter when it was put in cypher,
or when it was copied by himself; if, indeed, such were the fact.
But, on hearing the question more particularly and precisely
stated, and finding that it refers only to the present knowledge
of the cypher, it appears to the court, that the question may be
answered without implicating the witness; because, his present
knowledge would not, it is believed, in a criminal prosecution,
justify the inference, that his knowledge was acquired previous
to this trial, or afford the means of proving that fact.
The court is^ therefore, of opinion, that the witness may an-
swer the question now propounded.
The gendemen of the bar will understand the rule laid down
by the court to be this :
It is the province of the court to judge, whether any direct
answer to the question, which may be proposed, will furnish
evidence against the witness.
If such answer may disclose a fact, which forms a necessary
and essential link in the chain of testimony, which would be
sufficient to convict him of any crime, he is not bound to an-
swer it so as to furnish matter for that conviction.
In such a case, the witness must himself judge, what his an-
swer will be ; and if he say, on oath, that he cannot answer with-
out accusing himself, he cannot be compelled to answer.
i
246
Mr. Williams (counsel for Mr. Willie) stated, that he had
misunderstood him the other day in court, and in a subsequent
conversation had obtained more accurate information. He does
understand a part of that letter.
Mr. Hat requested, that Mr. Willie should be called into
court.
When he appeared, Mr. Hay interrogated him. Do you un-
derstand the contents of that letter ? Answer, No. Mr. Willie
afterwards said, that he understood the part of the letter which is
written in Dutch.
Mn HAT.-'^Was thfs letter written by the hand or the direc-
tion of Aaron Burr ?
Mr. WiCKHAM objected to the question.
Chief Justice.— The witness and his counsel will consult.
Mr. Hat repeated the question. Mr. Willie. Yes. Mr. Hay.
Which? By his hand, or his direction i Mr. Willie. By his di-
rection. It was copied from a paper written by himself.
Mr. Hat. — I wish this paper to be carried to the grand jury.
I presume there can be no objection. ,
Mr. BoTTs. — No objection! We call upon you to show the
materiality of that letter.
Mr. Hat.—- I deny the necessity of any such thing. Until
this letter be decyphered, it will be perfecdy unintelligible to me,
and to the grand jury. It is no more than a blank piece of paper.
Mr. WiCKHAM. — I had always understood before, that the
testimony, which is laid before a grand jury, must not only be
legal in itself, but proved to be materiaL
Mr. Williams begged leave to interrupt the gentleman. Mr.
Willie is anxious to be particularly understood. He says, that this
cyphered letter was first written by colonel Burr, and afterwards
copied. But it is the cypher only, which has been copied from
colonel Burr's original.
Mr. Hat. — It is quite sufficient, sir. If colonel Burr wrote
the cyphered part, he will be considered the author of the
whole.
Mr. WiCKHAM. — The gentleman has started a curious pro*
position indeed! I had always understood before, that the whole
included the part; but it seems now, that the part is to compre-
hend the whole.
Mr. Hat. — The remark of the gentleman may be wit, sir, but
he certainly knows, that it is not law. •
Chief Justice. — Can you get this letter decyphered ?
247
Mr. Hat.-'-Is Ericlc BoDman in court? I wish him to be
called. These gentlemen demand proof of the materiality of this
letter. Is this a question about which the court will interfere i
Can the court think it proper to require the materiality of this
cyphered letter to be proved^ before it is sent up to tne grand
jury ? We may turn the very favourite argument of gentlemen
against themselves. This letter is either material to the present
case, or it is not. If it be material, how can they object to its
production i And }f it be perfectly immaterial, what injurious
consequences can result from its being sent up to the grand
jury?
Mr. BoTT8.-^I never supposed that it could be a question^
whether an immaterial paper could be exhibited before the grand
jury i This question has been frequently decided in the nega-
tive. On the trial of Smith and Ogden, judge Patterson solemn^
ly decided against such a proceeding. Were papers permitted to
be laid before a grand or a petit jury, before their materiality
was proved, it would produce an endless confusion, and waste
of time. In Washington's Reports there is a case, where the court
of appeals inferred error, because an inferior court had permitted
the introduction of an immaterial paper; and this too, was in a
civil case. Even if the grand jury have called for it, it ought not
to be sent to them, before its materiality has been shown to the
satisfaction of the court.
Mr. Mag Rae. — Would it not be as proper, sir, to compel
every witness, before he is sent up to the grand juiy, to state
the substance of his testimony, as it is to require proof of the
materiality of a paper i This inquiry, however, is never made.
The only qualification which is required about a witness is, that
he should be a legal competent witness; not that he should be
sworn to be a material one. The very same principle is applica-
ble to this paper. After it is proved to be relevant testimony, is
it necessary that an inquiry should be made into its materiality?
In fact, how can any such proof be given, when the letter itself
b principally in cyphers?
Mr. WicKHAM. — ^Mr. Mac Rae has demanded authorities;
I have prepared none at present, sir, because I could not sup-
pose that any were necessar}'. As to his argument, that no in-
quiry is to be made into the materiality of a paper to be sent to
the grand jur}% because none is made into that of a witness, it
docs not apply. When a witness is sent up before a grand jury,
it is presumed that his testimony is relevant to the case. The
only question is, is he a competent witness? And it b only on the
ground of incompetency, that his testimony is not legal. If com-
petent, he is a legal witness; he is sworn, and is forced to an-
swer such questions as maybe put to him by the grand jury. If,
248
hoMrev«r, lie refifte, they tlien call upon the court to interpose
its jurisdiction; and the inquiry will then be, whether the ques-
tion be material and proper? As'to papers, they are not to be re-
ceived at all, unless they are shown to be relevant to the cade.
And where is the limit to this species of proceeding? Suppose,
in this search after papers, all the private letters of cplonel Burr
should be brought up; all die most secret actions of his life
should be written down, and brought hither to be submitted to
public inspection ; will the court indulge them in such a wide
inquisition ?
Chief Justice said, he had in some measure anticipated this
question, and had reflected upon it; his opinion was this : a paper,
to go before the grand or petit jury, must be relevant to the case,
even if its materiality were proved. Why send this letter before
the grand jury, if it cannot be decyphered ? If it can be decy-
phered before the grand jury, why not before the court ? Let it
then be decyphered, and its relevancy may at once be established.
Mr. Hat.-^I8 there no difference between any other paper
and a cyphered letter proved to have been originaUy written by
Aaron Burr I
Chiet JusTiCE.^-StiU this letter may not be relevant to the
present case.
Mr. Hat then directed Erick BoIIman to be called into court,
that he might be interrogated as to its contents. He requested
that the court would indulge him for a short time, until he could
execute some important business before the court of appeals.
The court accordingly suspended the prosecution.
At half after one o'clock, the court again resumed the busi-
ness; but neither doctor Bollman,nor Mr. Hay appeared.
A few minutes after the court had resumed its business, Mr.
John Randolph entered at the head of the grand jury, and ad-
dressed the court:
May it please the court: One of the witnesses, under exami-
nation before the grand jury, has answered certain questions
touching a letter in cyphers. The grand jury understand that this
letter is in the possession of the court or of the counsel for the
prosecution. They have thought proper, to appear before you,
to know whether the letter, referred to by the witness, be in the
possession of the court i
Chief Justice observed, that as the letter was wanted by
the grand jury, a witness having referred to it, that was suffi-
cient to establish its relevancy, and directed it to bo delivered
to them.
249
Mr. Mac Rae hoped, that before the grand jury retired they
would be informed, that a witness had proved that this letter
was originally written by Aaron Burr.
Mr. WiCKHAM.— And I hope, they wiO also be informed,
that the superscription on that letter has not been proved to have
been written by colonel Burr. The witness did not, and would
not, say that he knew the superscription to have been written by
him.
The grand jury then retired, and the court adjourned till td-
tnorrow, eleven o clock.
Friday, June 19th, 180y.
As soon as the court met, Mr. Burr addressed them. He
stated, that the express, that he had sent on to Washington with
the subpoena duces tecum^ had returned to this city on Wednes-
day last, but had received no other than a verbal reply from the
president of the United States, that the papers wanted, would
not be sent by htm; from which I have interred, said Mr. Burr,
that he intends to send them in some other way. I did not men-
tion this circumstance yesterday to the court, under an expecta-
tion that the last night*s mail might give us further intelligence
on the subject. I now rise to give notice that, unless I Veceive a
satisfectory intimation on this subject before the meeting of the
court, I shall, to-morrow, move the court to enforce its process.
Chief Justice handed down to the bar a copy of a letter
addressed from doctor Erick Bollman to the chief justice. It
was not publicly read, and for that reason Mr. Hay declared
that he should not make any remarks upon it.
Mr. Burr's counsel called James Knox and Chandler Lindsley,
(two of the witnesses of the United States) whose aflBdavits
had been drawn and were intended as the ground of the motion
for an attachment against general Wilkinson.
Mr. Hay interrupted the motion, by stating, that he himself
had a motion to make to the court; and that was, for leave to
aend up such v^itten interrogatories to the grand jury as he
thought proper to put to certain witnesses. His reason was,
that some of these witnesses would voluntarily depose to as lit-
tle as possible; that the grand jury might not always know the
particular questions to be proposed to them respectively, and to
what point to shape their inquiries; that he himself better knew
what they would say, (having seen their depositions); and that
his interrogatories might probably aid the jury in their invest!-
(auon.
Mr. Martin.— I shall object to this motion, unless it be qua-
lified by giving'us the same privilege. We cannot send up^oHr
Vol. I. 3 1
250
witnesses to the juiy, bat we may send up ont mt^rrogatories*
We will Assent to the motion of the attorney for the United
States upon the condition that he will assent to ours*
Some conversation ensued upon the motion for an attachment;
when the Chief Justice asked, if die papers could not be pot
into his hands, and the argument take pl^ce to-morrow; that he
wished to consider the question before it was cUscuased.
Mr. Hay approved of this course. It would prevent the public
exhibition of these affidavits, which were drawn up for the sole
purpose of defaming general Wilkinson, and thereby making an
improper impression on the public mind with respect to the trial
of Aaron Burr; and had been obtained from persons who were
willing to say any thing to answer the purposes of tlie aocused^
but very reluctant to give any evidence on behalf of the United
States. That these were voluntaiy affidavits of these reluctant wit-
nesses, whose connexion with the accused would one day be
known* If the place where^ and persons by whom they were dic-
tated, were considered, the court would see that the object was to
prejudice the surrounding multitude against general Wilkinson;
that they had such deadly hatred against him, that If they could
but sink him^ they were regardless of sinking themselves; but,
that the integrity and patriotism of that man would soon be
known to all America ; that he had merely glancied his eye at ft
single expression in one of these papers, which was as impudent
a falsehood as ever malignity had uttered. The court might
compare these papers with the law, and determine whether they
would justify an attachment or a rule to show cause, and that the
court, if they entertained any doubts, might then direct an argu-
ment; but then he hoped that the witnesses would be examined
in court.
■
Mr. Randolph spoke at considerable length. He ha<l been
disposed to postpone this subject till to-morrow ; but, from the
moment when he heard Mr. Hay's anticipating speech he was
oppostd to all delay. He had produced documents to support
his motion; and yet, according to Mr. Hay, it was dictated by
nothing more than the policy to defame general Wilkinson. Mr.
Hay had wandered into the very error which he had charged to us.
He had called upon the court to defend the character of general
Wilkinson, the defender of his country, who is to come through
the fiery furnace purer than gold; and yet he has himself
charged the witnesses now before the court with malignity and
rancour! That general Wilkinson was subject to the legal conse-
quences of his own illegal acts, and o^Jght to' be punished; that
the affidavits were to the point, and ought to be read: they
would show that he practised a system of tyranny from the com-
mencement.
251
Mn Bon B.'-^Why do gmdemen object tp the puMcnt motion
being heard, when they have so often insisted upon their own
right to be heard by the court i Why do they reproach us with
shrinking from the evidence, when they are attempting to screen
their favourite witness, general Wilkinson, from a fair investiga-
tion of evidence ? The wimesses ought to have been under the
protection of the court. Their countenancesdo not bespeak de-
vils : they are like other men; but they are branded as villains.
Does Mr. Hay desire that the characters of these men should be
immolated to this saviour of his country? that their fair reputa-
tion should be sacrificed to save his? The constitution has re-
cognised the equality of man. Though those gentlemen may
not be decked out in the tinsel ornaments of military grandeur,
their rights as citizens, and the respect due to their characters,
are the same as those of any other men. If Wilkinson be able to
go dirough the fiery ordeal, put him on his trial. If his private
declarations to Mr. Hay are to be set against their oaths^ let it
be tried. I desire for them to be put on trial as well as general
Wilkinson. Put them in one scale, and him in the other. We
hope our motion will be heard.
«
Mr. Mac RAE,at some length, expatiated upon the impropriety
of animadverting at this time upon the character of general Wil-
kinson. The court had already said, that no step should be taken,
which would affect the justice of the case ; and it was therefore
much better for the court to pursue the suggestion which it
had thrown out; to examine the papers in private, and see whe-
ther the affidavits were relevant to the pomt, than to prejudice
the justice of the case by a public exhibition of these affidavits;
that be was prepared to vindicate his character; but this was not
the time, and he wished the cause to be conducted regularly;
diat the motion ought to be reduced to writing, and the court
would then decide on it, and the affidavits together.
Mr. WiCKHAM protested against the secret tribunal to which
gentlemen wished to resort, for stifling inquiry and murdering
character. That gendemen complained of the waste of time, but
they themselves wasted the most by previous questions. The gen-
tlemen who have made these affidavits are upon their oaths. Is
it right, said he, for the counsel to charge them with perjury, and
yet not give them an opportunity of vindicating their veracity ?
If an expression escape our lips, we are charged with forestal-
ing the public opinion. In every instance they wander into bold
assertions and violent invectives. Is Wilkinson's ch;iracter too
sacred for public investigation ? We have a right to be hcard^
and insist on it.
Mr. Hay denied having made any such assertion. He had
merely alluded to one expression in their affidavits, which was too
252
V
monstrous to be believed. But why all this feeling mi the pn-
sent occasion, when gentlemen have so often charged general
Wilkinson with perjury ?
Mr. Martin. — When did we charge him with any other
perjury, than that of violating the constituuon which he had
sworn to support? Is not this notorious? Are not Swartwoutand
othei^s here to prove it? We did not say that general Wilkinson
was ready to perjure himself; but merely that he had every thing
now at stake, and would go almost all lengths to hang colonel
Burr.
Mr. WiCKHAM insisted on their right to go on with their
motion; that the court only wished to get the affidavits to un*
derstand their arguments better ; but even the court could not
deprive them of the right to be heard as advocates.
After some other discussion, Mr. Burr agreed to place the pa-
pers in the hands of the court, and to waive his motion till to«
morrow. .
Chief Justice. — Reduce the motion to writing. [This was
done.]
Mr. Burr It is only upon the affidavits of Knox and
Lindsley, that we move for a rule to show cause why an attach*
ment should not issue against general Wilkinson.
Mr. Martin hoped, as colonel Burr had postponed his nao-
tion, the attorneys for the United States would postpone theirs.
Mr. Hay refused, upon the ground, that the witnesses were
now before the grand jury, and that his interrogatories would be
necessary to direct their inquiries; that he knew the testimony bet-
ter than they did, and in saving time, he wished to promote
their convenience and to put them on the track to get the wkok
truth.
Mr. Burr. — I instructed my counsel to consent to this mo-
tion upon the condition, that I should also be permitted to send
counter-interrogatories; and the way to get the whole truth is to
send interrogatories on both sides.
Mi> Hat did not feel himself at liberty to acquiesce in such a
proposition. He would rather trust to the distinguished intelli-
gence of the grand jury.
Mr. Martin said, that in his practice of nearly thirty years,
he had never known interrogatories to be sent to a grand jury ;
that such a practice had never been known in the whole history
of jurisprudence.
, Chief Justice said, that the court was utiwilling to declare
its o))inion before it heard argument on that point ; that
the practice was uncommon in America, because indictments
253
usually suggest enough to a grand jury; that there was no objeo
tion, in principle, to interrogatories, but that the witnesses ought
to be fully examined; that witnesses were only on one side, and
therefore they should relate all they knew on both sides.
Mr. Wirt. — Though the practice is unknown in America,
yet in Shaftesbury's trial, questions were put by the attorney ge-
neral, the court, and the grand jury; but the intelligence of this
grand jury will save us this trouble.
Mr. BoTTs.— I wish you h^d found out this before.
Mr. WiKT. — It is time enough.
Mr. Randolph. — The. case cited by Mr. Wirt, shows, that
interrogatories on one side only are not admissible. The court
was counsel for the prisoner.
Chief Justice. — I do not recollect whether at that time a
prisoner were allowed counsel or not.
Mr. Hay.— -If the court allow interrogatories by both sides^
to be sent to the grand jury, I am not willing to send any. I
never heard of such a case.
Chief Justice. — Nor hath the court; but as the grand jury
are only to examine witnesses on behalf of the prosecution, if
diey are to be aided by interrogatories, the principle of equal
justice requires, that the witnesses should disclose all they know,
on one side as well as on the other, and that the interrogatories
should be sent by both sides.
Mr. Burr stated that he recollected no instance of interro-
gatories sent to a grand jury, except in Kentucky, in the prose-
cution against himself. That Mr. Davies, the attorney for the
United States, had drawn up some interrogatories, which were
shown to him, and with some slight alterations suggested by him-'
self, were sent to the grand jury.
Here some conversation ensued relative to the form of the
motion for an attachment against general Wilkinsoti. The coun«
sel for the United States insisted upon a specification of the
conduct, for which it was to issue; that if generally expressed as
a ^^ contempt of the court,'' nothing but the spirit of divination
could enable him to discover the specific ofifence charged against
him, nor to prepare for his defence; that the precise circum-
stances which constituted the offence ought to be particularized.
Mr. Burr and his counsel said, that the specification was to
be found in the two affidavits, and that it was from delicacy to
gendemen, he had not attempted to make these affidavits matter
of record, by introducing them on the face of the motion. The
motion reduced to writing, stated the offence to be ^^ for a con-
tempt in obstructing the administration of the justice of this
court.'' The court then adjourned till to-morrow, eleven o'clock.
254
Saturday, June 20th, 180y.
The court met according to adjournment* Present^ the same
judges as yesterday.
Mr. Randolph rose to proceed with his motion, when he
was interrupted by Mr. Hay, who spoke to this effect:
I have a communication to make to the court, and to the
counsel of the accused. The court will recollect the answer
which I received from the president, to my letter respecting
certain papers. He stated in that letter, that general Wilkin-
son's letter of the 21st October had been delivered to Mr.
Rodney, the attorney-general, from whom he would endeavour
to obtain it. By the last mail I have received this letter from
the president on the same subject.
Washington, June 17th, 1807.
Sir,
In answering your letter of the 9th, which desired a com-
munication of one to me from general Wilkinson, specified by
its date, I informed you in mine of the 12th, that I had deli«
vered it, with all other papers respecting the charges arainst
Aaron Burr, to the attorney-general when he went to Rich-
mond; that I had supposed he had left them in your possession,
but would immediately write to him, if he had not, to forward
that particular letter without delay. I wrote to him accordingly
on the same day, but having no answer, I know not whether he
has forwarded the letter. I stated in the same letter, that I had
desired the secretary at war to examine his office, in order to
comply with your further request to furnish copies of the ofi-
ders which had been given respecting Aaron Burr and his pro-
perty; and, in a subsequent letter of the same day, I forwarded
to you copies of two letters from the secretary at war, which
appeared to be within the description expressed in your letter.
The order from the secretary of the navy, you said you were in
possession of. The receipt of these papers has, I presume, sa
far anticipated, and others this day forwarded, will have sub-
stantially fulfilled the object of a subpoena from the district
court of Richmond, requiring that those officers and myself
should attend the court in Richmond, with the letter of gene-
ral Wilkinson, the answer to that letter, and the orders of the
department of war and the navy therein generally described.
• No answer to general Wilkinson's letter, other than a mere
acknowledgment of its receipt in a letter written for a different
purpose, was ever written by myself or any other. To these
eommunications of papers, I will add, that if the defendant
suppose there are any facts within the knowledge of the
' heads of departments, or of myself, which can be useful for his
255
defence, from a desire of doing any- thing our situation will
permit in furtherance of justice, we shall be ready to give him
the benefit of it, by way of deposition through any persons
whom the court shall authorise ta take our testimony at this
place* I know indeed that this cannot be done but by consent
of parties, and I therefore authorise you to give consent on the
part of the United ^tates. Mr. Burr's consent will be given of
course, if he suppose the testimony useful.
As to our personal attendance at Richmond, I am persuaded
the court is sensible, that paramount duties to the nation at
large, control the obligation of compliance with its sum-
mons in this case, as it would, should we receive a similar
one to attend the trisds of Blannerhasset and others ia the
Mississippi Territbry, tho^e instituted at St. Louis, and odker
places on the western waters, or at any place other than the
seat of government. To comply with such calls, would leave
the nation without an executive branch, whose agency never*
theless is understood to be so constantly necessary, that it is
the sole branch which the constitution requires to be always in
function. It could not, then, intend that it should be withdrawn
from its station by any co-ordinate authority.
With respect to papers, there is certainly a public and pri-
vate side to our offices. To the former belong grants of lands,
patents for inventions, certain commissions, proclamations,
and other papers patent in their nature. To the other belong
mere executive proceedings. All nations have found it neces*
sary, that, for the advantageous conduct of their affairs, some, of
these proceedings at least, should remain known to their exe-
cutive functionary only. He, of course, from the nature of the
case, must be the sole judge of which of them the public in-
X terest will permit publication. Hence under our constitution,'
in requests of papers from the legislative to the executive
branch, our exception is carefully expressed, ^^ as to those
which he may deem the public welfare may require not to be
disclosed," as you will see in the inclosed resolution of the
house of representatives, which produced the message of
January 22d, respecting this case. The respect mutually' due
between the constituted authorities in their official intercourse,
as well as sincere dispositions to do for every one what is just,
will always insure from the executive, in exercising the duty
of discrimination confided to him, the same candour and inte-
grity, to which the nation has in like manner trusted in the dis-
posal of its judiciary authorities. Considering you as the or-
gan for communicating these sentiments to the court, I address
them to you for that purpose, and salute you with esteem and
respect-
TH: JEFFERSON.
256
Accompanying this lietter is a copf ot the resolution of the
house of representatives, containing the exception to which th6
president refers. I have also received a letter from Mr. Smith,
secretary of the navy, containing an authentic copy of the or-
der which was wanted, precisely corresponding with the unau-
thenticated copy in my possession.
Mr. WicKHAM.— I presume that these must be considered
and noted as the return to the '* subpoena ifuces tecum.^^
. Mr. Hay. — So far as they go. When we receive general
Wilkinson's letter; the return will be complete. I have also re*
ceived a letter from the secretary at war, which contains all the
orders of his department relative to Aaron Burr. All which
papers I shall deposit with the clerk of this court.
The following is the order of the navy department:
I certify that the annexed is a true copy from the records in
the ofEce of the department of the navy of the United States,
of the letter from the secretary of the navy, to captain Joha
Shaw, dated 20th December, 1806.
, In faith whereof, I Robert Smith, secretary of the navy of
the United States of America, have signed these presents, and
caused the seal of my office to be affixed hereto, at the city of
Washington, this 17th day of June, anno Domini j 1807; and in
the 31st year of the independence of the said States.
(Registered,) RT. SMITH.
Ch. W. Goldsborough, Secretary of the Navy.
Ch. Clk. N. D.
(Copy)
Navy Department, 30th December, 1806.
Sift,
A military expedition formed on the Western waters by co«
lonel Burr, will soon proceed down the Mississippi, and by the
time you receive this letter, will probably be near New-Or»
leans. Tou will by all the means in your power, aid the army
and militia in suppressing this enterprize. You will with your
boats take the best position to intercept and to take, and if ne*
cessary, to destroy the boats descending under the command of
colond Burr, or of any person holding an appointment under
him. There is great reliance on your vigilance and exertions.
I have the honour to be, sir, your most obedient,
(Signed) RT. SMITH.
Captain John Shaw,
or the Commanding Naval Officer, -
at New-Orleans.
257
Mr* R ANDOLPB— May it please your honours:
I am now about to commit to your attention the motion of
which we gave notice 9ome days past* The general purport of
it will be, to award a rule against general Wilkinson, to show
cause, why an attachment should not issue against him for at-
temptiQg to obstruct the free administration of justice. Whe*
iher we shall be again charged with an mtention to inflame the
public mind against general Wilkinson, or to defame him, I
know not; but of one thing I am conscious, that my object is
essentially different. We do not proceed on mere ^neral sur-
mise; but on plain £acts» We shall endeavour to remove all the
{M'ejudices which have been excited, and shall rely on plain facts
only* We hope to guard the public mind against erroneous im-
pressions, by depending on correct evidence alone; and that it
will be manifest to all, that every effort to obstruct the free will
of a witness should be punished. If general Wilkinson^s cha-
racter should be incidentally affected, it will not be our fault.
If he must take upon himself the legal consequences of his
own improper conduct; if be must submit to legal doctrines;
be cannot complain. It is due to the United States, to the
witnesses themselves, and to the persona accused, that obstruc-
tions to the free administration of justice should not pass with
impunity. Sir, we shall attach general Wilkinson on specific
allegations, and by specific facts. It is his duty, if he can, to
repel these by legal evidence; not by illegal testimony^ or the
protestations of his counsel, that they believe him to be inno-
cent, and an Israelite without guile. I prefer this coarse, that
there may be no more waste of time in passing eulogies on
general Wilkinson. There will be a future occasion which
will require the concentration of all his bistre^ and it will be as
well that the beams of his glory should not be dissipated till
we make the attack that will strike home.
The ground on which we make the motion is this, that ge-
neral Wilkinson, who is now before the court, in a case de^
pending between the United States and Mr. Burr, deliberately
abused the process of the law relative to a witness who has
been summoned in this case. He contrived, on his own affida-
vit, and by his own power, to obstruct the free course of legal
testimony, and to intimidate, and coercively bring t6 this court,
a witness, by the abuse of military authority. For this illegal
proceeding it is the duty of the court to taie notice of gene-
ral Wilkinson. As the cases ought to be kept distinct, I speak of
him only; but it may be necessary to carry the principle into
immediate execution as to other persons. The grounds of this
accusation are the depositions of James Knox and Chandler
Lindsley, which will be read to the court.
Vol. I. 2 K
^58
Mr* Hay objected to the introduction of these affidavits, bew
tause he understood that they had been written and dictated
by the counsel of colonel Biu-r. He did not pretend to say, that
they contained any thing which they did not believe to be true,
nor did he know their contents; but he understood, that they
were introduced for the purpose of strengthening some testi*
mony concerning general Wilkinson, or of showing improper
conduct on his part; that he underwood, that those witnesses
had voluntarily gone and given information to the counsel.
Upon which the counsel had written or dictated the terms of
those affidavits; that his idea was, that when affidavits are taken
by the opposite counsel, though the court may be perfectly sa-
tisfied with the conduct of the counsel in taking them, yet ac*
cording to universal practice the court would not permit them
to be read; that the legal authorities showed, tliat a court
would never issue an attachment founded on affidavits taken
by the agent or attorney of the party applying for it; that this
court would admit of no exceptions to this rule; the court of
king's bench determined that ^^ it was invariable and founded
on the wisest and most obvious principles.'' Mr. Hay here
cited the case of the King v. Wallace, in 3 Term Rep. p. 403.,
where the court had set aside an affidavit that had been sworn
to before the attorney for the prosecution, and refused to grant
an attachment ; that the present case was sti'onger than that.
The objection in that case was, that it was sworn to before the
counsel: the objection here is, that it is penned by the counsel,
and is therefore stronger and more within the scope of thar
policy on which the principle of the law is founded; that how-
ever he did not mean to reproach gendemen for the course
pursued in this instance ; that he was sure that nothing like
impropriety was thought of by them, and that perhaps he
would have done the same thing in their situation..
Mr. Baker. — May it please the court. I shall not under-
take to say, what Mr. Hay would have done in our situation,
nor do I feel much interested in knowing; but I rise solely for
the purpose of correcting a mistake, which he has committed.
He says, that these affidavits were originally written by coloniA
Burr's counsel. As to the affidavit of Knox, I know I can say
nothing; but as to the affidavit of Lindsiey, it was written br
himself. The facts are simply these: He called upon me with
his affidavit already written, (I had never seen him before) to
know whether it were correctly written or not. I read it, cor-
rected some inaccuracies in the style, and wrote it over again :
it was not sworn to when brought to me. After I had corrected
those grammatical errors, and submitted it to Mr. Lindsley'a
mspection, he said that the statement was perfectly correct.
259
Mr. Wirt.-— Do you know, Mr. Baker> who induced Mr.
Lindsley to adopt that course ?
Mn Baker. — Perhaps yourself, sir: I never saw Mr.
Lindsley before.
Mr. Mac Rae. — I beg to add one observation to what has
been already said on this subject. As the witnesses are now
before the court, and can be examined viva voce^ there is no in*
convenience in the objection. If they were at a distance, so
that they could not be personally examined, we should have
found no difficulty in admitting their affidavits; we should have
waived the objection, lest it might seem that we were afraid of
them. I hope that it will not be believed, that we feel any such
apprehension. I hope that it will seem to the court right, that
the affidavits shall not be read, especially as our affidavits were
objected to, when our witnesses were at New*Orleans. I hope
that gentlemen will not insist on the necessity of discussing
diis point farther. If they wish to know the whole truth, they
will consent to examine the witnesses in open court.
Mr. WiCKHAM hoped that gentlemen would persevere in
the course which they had this day begun ; and instead of warm
and desultory declamation, come at once to the law and autho-
rities. They object to the reading of our affidavits, and the
question is, whether in point of law, their objection will be
sustained? It happens in many cases, and must happen in the
progress of litigation, whether between individuals, or between
the public and individuals, that collateral points arise, in which
it is necessary that testimony should be heard : but if on every
collateral question, wW voce testimony were to be introduced,
great inconvenience would result; it would lead to an unne-
cessary confusion and waste of time: and the regular and
established practice, therefore, is, when these collateral points
occur, not to produce viva voce testimony, but affidavits in sup-
port of them. These affidavits are made before private magis-
trates; that is the authority by which they are taken* These
being in writing, must necessarily be written by one of three
descriptions of persons: by a magistrate or judge; by the party
himself, or his agent; or by the witnesses. With respect to the
necessity of t-heir being written by a judge or magistrate, it
will not be contended, that they are bound to subo^it to the
drudgery of writing the affidavits, and most of them have no
clerks. It is therefore usual to prepare the affidavits before, and
for the magistrate to sign them thus previously prepared: and
besides, a man may be an able magistrate, but a bad clerk. With
respect to the parties themselves, it will not be contended^
that they ought to write them, because a very great propor-
260
tion of Aem are unable to write them. Who then is to write
them ? their counsel or agent, or some indifferent person. How
can tht party get an indifferent person to write his affidavits?
The moment he calls for an indifferent person to write them,
he becomes his agent, and is incapacitated from writing them:
and according to the gentlemen's arguments, these affidavits
could very seldom be produced. Hence, from the necessity of
the case, a custom has prevailed among lawyers, to write their
clients' affidavits ; and the gentleman himself admitted fifteen
minutes ago, that he has been in the habit of doing so himself.
As to the authority quoted by Mr. Hay, had he considered
it but one tenth part of the time he has argued it, he would
have seen that it did not apply. In that case, the affidavits, on
which the motion for an attachment was founded, were sworn
to before Lothian, who was the attorney, or agent, for the pro-
secution. Here the affidavit was written by the witness himself,
and only corrected and copied by the counsel. Does the gen-
tleman suppose, that the actual presence of the attorney would
vitiate the affidavit?. When a man writes an affidavit^ he acts a
mere ministerial part; but he who administers an oath, per-
forms the judicial function of a judge, or justice of the peace.
It is a sacred rule, that a magistrate who administers an oath,
should be disinterested between the parties: and in the case
referred to, he who administered the oath was not disinterest-
ed, but the attorney for the prosecution. I recollect an instance
in this city, where a magistrate, who was also a practitioner of
the law, drew an oath and administered it himself, even in his
own case: the first was not improper, though the second was*
Here Mr. Baker wrote the affidavit, but did not administer the
oath. There is a substantial and plain reason, why the oath
should be administered with impartiality, but no reason can be
assigned why the agent of the party should not, as in this in-
stance, copy, and correct, in point of language, at the instance
of the witness, an affidavit prepared by the witness himself.
As to the witness being present, it makes no difference. The
practice, in such cases, is to read affidavits just as if the wit-
iliesses were absent.
Mr. Burr. — If it were perfectly agreeable to you, I should
have Qo objection to an examination of the witnesses in court;
although the practice is, on principles of convenience,otherwise:
but if the court will submit to the inconvenience, it will be agree-
able to me. As to the origin of this business, it is not perfectly
Understood, and some unfounded insinuations have been made
concerning it. James Knox called on me, stated the usage
which he had received; and asked, whether any redress could
be obtained? One of my counsel, who was present at this inrter-
261
view, concurred in opinion with me, that some nodce should
be tak^n of this proceeding. We at first thought of referring
him to Mr* Hay ; but on reconsideration, we thought that, per-
haps, Mr. Hay might think himself disqualified from acting.
Mr. Knox^s own idea was, that he ought to come into court,
and complain, himself, of the treatment he had received.
Mr, Wirt. — Mr. Wickham says, that it is the practice to
produce affidavits on such motions: but this practice is found-*
ed on expediency, and when it ceases to be expedient, the prac-*
tice will also cease* The inquiry then will be, whether it will
be most expedient to examine a number of witnesses openly^
who are now in court, or take their affidavits smd read them?
The court would wish to*come at the true state of facts. I hop<^
the gentlemen on the other side, would also wish the same*
You are called on, to make a rule, against general Wilkinson,
to show cause, why an attachment should not issue against
him ; and to support this application, affidavits are offered, and
said to be founded on expediency. We contend that viva voce
testimony is better. Before you grant it, you must be satisfied
that it is right. The question then is, which is most satisfac-
tory to your mind, an affidavit taken by the party, or evidence
stated by the witness himself? How can the court be satisfied
till the witness be examined and fully heard? Was the affidavit
written by the witness himself? Did it proceed from him? oi^f
was it advis6d by him ? or, did it contain his words ? The coon*
sel, no doubt, endeavoured to draw it as correctly, and as free
from bias, as he 'could ; but it was difficult to state it precisely
as the witness would have done. The witness states his facts,
but he states them in his own language* Is it likely, that when
it is changed to the words of the attorney, the idea intended
to be expressed by the witness, will be precisely retained? If
you take the evidence, not from the fountain head, the witness
himself, but from a statement taken by another, you run the
risk of not being righdy informed: but if you examine the wit-
ness, there can be no mistake.
Mr. BoTTs said, that colonel Burr had acquiesced, and con-
sented that the witnesses should be examined in court, though
he regretted the departure from usage established on princi-
ples of convenience.
Mr. Martin.-— If the witness-be examined, the clerk will
reduce what he shall say to writing, so as to give it the effect
of an affidavit.
Mr. Hay apologised for frequently misunderstanding colo*
nel Burr. He complained, diat from their respective situations
he could not hear the accused, notwithstanding his clear and
distinct voice, and emphatic manner.
S62
James Knox was then called, when
i
Mr* Mac Rae addressed the court. He said, that as the
business was of considerable importance to general Wilkin*
son, it was extremely desirable, that he should be present at the
examination of this and the other witnesses, who might be in-
troduced on this occasion ; that he was now before the grand
jury, and he had applied to the gentlemen on the other side to
postpone the motion till he could be present, but they objected
to any delay. He therefore found it necessary to apply to the
court, to suspend the examination for a short time, till the
general could be present; that important facts, unknown to the
counsel for the prosecution, might be within the knowledge of
general Wilkinson, who therefore might materially direct their
inqoiries in this examination.
Mr. Martin said, that the gentleman did not seem to know
in what stage of the business they were then engaged ; that the
question was, whether a rule should be granted to show cause;
with which neither general Wilkinson nor his counsel had any
thing to do, and were not, in fact, as much as supposed to be
present; and that the court would take care that the witnesses
should answer correctly.
Mr. WiGKHAM complained, that they had been for a consi*
derable time prevented from making the motion, by the delay of
the gentlemen on the other side, and of general Wilkinson.
Mr. Mac Rae.— The gentleman from Maryland has said>
that we were not present in court. I thought, that all the while
he «poke, we were m court. The court were pleased to notice
our presence, and we were heard and answered politely and re-
spectfully; and what has the court said? That gentlemen on
both sides in court, had a right to argue this question. It is
now too late for them to say, that they are exclusively engaged
in this motion, which we have an acknowledged right to dis-
cuss and oppose ; and we shall be perfectly satisfied, if the court
will take notice of ourobservations,although Mr. Martin should
not. We hope, that if the reasons for desiring general Wilkin-
son's attendance appear as strong to the court, as to the coun-
sel for the prosecution, it will consent to this short delay.
We mean, with the leave of the court, to put some questions to
the witnesses, and also, to produce some testimony ourselves ;
and we feel confident, that we can satisfy the court, that no just
foundation exists for the present motion.
Mr. Martin.— I thought I had assigned very sufficient rea-
sons why the business should not }ih delayed. I knew they were
personally present. I saw them; and if I had not, they took good
263
care to make os often hear them. They detained us three qr
four hours the other day, in opposing the motion for a subpoena
duces tecumy after the court had decided^ that they had no right
to interfere. It is unfair to take up a great deal of the time of
the court, when, in point of legal contemplation, they are not in
court. Let the present motion be decided, and when the rule
is made, they may bring counter affidavits.
Mr. Wirt. — If presence depend on speaking. Mr. Martin
is not only present, but, perhaps, is the only person who 'is. I
am willing, however, to be considered, if he please, as not le-
gally present; but, as amicus ctirior^ I may make a few observa-
tions. These questions may merit the consideration of the court.
^' Here is a rule which I am required to make on general Wil-
kinson, to order him to show cause, why an attachment should
not issue against him. Shall I make it on a personal examina-
tion of the witnesses, or follow custom, and by taking their af-
fidavits exclude part of their evidence? Shall I use one or two
links when I may have the whole chain before me? Where tes-
timony is present, ought I not to take the full benefit of it?" The
inquiry will be made, whether the man's interrogatories, when
general Wilkinson is present, will not give more satisfaction to
the court than his mere affidavit? Will not the court think, that
a full view of the evidence will be better? Though not present,
he is deeply interested in the event of this motion, when its ob-
ject is, that he should show cause, why an attachment should
not issue against him for a supposed contempt of the court: his
character as a man, as well as his credit as a witness, is aifected.
We are told, that the streams of the prosecution should be kept
dear and untroubled. If gentlemen be serious in these admo-
nitions, they will not persist in this mode of exhibiting mutila-
ted testimony ; for these ex parte affidavits, uncontradicted by
general Wilkinson, may unjustly prejudice the public opinion
against him* We hope that the court will, for themselves, as
well as for general Wilkinson; for expediency and public jus-
tice, suspend this examination for a short time, till he can be
present* We do not wish a postponement for two or three days
or more, but a mere suspension while he is necessarily before
the grand jury.
Mr. Martin drew an analogy between this motion and the
proceedings before the grand jury. Gentlemen, said he, have no
more right to interfere, in this stage of the business, than we
have to interfere before the grand jury. It is exclusively in the
power of the counsel for the prosecution to send witnesses be-
fore the grand jury. We have^no such right. When the grand jury
find a true bill,and the trial in chief comes on before the court,
we can introduce what evidence we please, but not before ;
264
the princifde is the same here. Gentlemen have no right to intr#«
duce testimony when we apply for the rule, but after it is grant-
ed, and they come forward to show cause against issuing the
attachment; then they have an undoubted right to adduce what
testimony thty think proper, to show that it ought not to issue*
But gentlemen say, that granting the rule may possibly tarnish j
the reputation of general Wilkinson* He may, on showing cause *
against the attachment, come forward in vindication of his cha-
racter. We have no right to bring testimony in our exculpation
before the grand jury% where indictments and accusations, com-
mitting our character and as materially injuring us as he can be
by this motion, are exhibited. Were we to attempt it, their answer
to us would be, *' Tou are irrtgular; you can introduce no evi-
dence before the grand Jury^ and if they find any bill against
youy you can wipe off the impression made by their findings in the
usual and regular manner.^'* As this is the way in which we wipe
off the impression of what is before the grand jur}% so he can
wipe off the effect of granting the rule, on showing cause.
Mr. BuRR.-*-It is not my wish to prevent gentlemen from
producing testimony in behalf of general Wilkinson, or to pre-
vent his witnesses from being heard; but this can be done by
introducing their affidavits. I object only to the innovation of
examining them personally on collateral motions like this, instead
of reading their affidavits.
Mr. Hay.— -It seems to be conceded that general Wilkinson
may produce testimony in his patt. He has been three hours be-
fore the grand jurj^*, and in a very short time he may be dis-
charged and appear in court. It is singular that we should, by
their own concession, have the right to appear and interrogate
witnesses after the rule is made, and yet not at this stage of the
proceedings, when we are present to contest it. The party on
whom such a rule is usually made, is absent; and the object of
it is, to bring him forward and to show cause, if he can, why he
should not be attached for his supposed misconduct. No oppo-
sition is usually made, because the party happens to be at a dis-
tance ; yet if he be on the spot, as in the present case, there could
be no sort of reason or justice in preventing him from showing
at once that the charge's against him are perfecdy visionary and
groundless.
Mr. WicKHAM stated the importance of immediately pro-
ceeding with the motion; and that, according to law. and practice,
there was no just ground of opposing it; but that if the counsel on
the other side would name a particular hour in the course of this
day, when the motion would be made, they would waive their
right of going on with it now.
265
Mr. Martin hoped, that the court would express in its or-
der, that diis postponement was not in consequence of the right
of the gentlemen to demand it, but of the consent of his friend.
Chief Justice said, that it was unnecessary to do so. He
stated what the law and practice were, and observed, that if the
motion were to be postponed till Monday, and the witnesses on
both sides were then heard, it would answer every purpose; and
it might be considered then as a motion for an attachment, not
for a rule to show cause. This would prevent disputes and delay.
Mr. Randolph.-— We shall move then immediately for an
attachment.
Mr. Mac Rae observed, that they only wished the motion
delayed till general Wilkinson could be permitted to attend.
Mr. Hay wished, that in order to save time, gentlemen would
prepare their interrogatories, by reducing them to writing.
Mr. Martin said, that this could not be done till it was de-
termined that an attachment would go; but that there would be
no delay on that account.
The examination was then postponed till Monday; and the
court adjourned till that day, at eleven o'clock.
Monday, June 22d, ISOr.
The court met according to adjournment.
Mr. Randolph, having directed James Knox and Chandler
Lindsley to be called, was proceeding to open the motion which
he had introduced on Saturday —
Mr. Mac Rae had understood that this motion was to be
postponed till general Wilkinson could be present; and that the
moment he was discharged from the grand jury, they should
notify the opposite counsel of it.
Chief Justice said, that as this was a motion for an attach-
ment against general Wilkinson, he ought to be heard in his
defence.
Here a desultory discussion took place.
Mr. Botts observed, that from a spirit of accommodation,
they had agreed on Saturday, to postpone their motion till this
day; but it was in certain expectation that general Wilkinson
would beliere to-day, and that their motion would be no longer
delayed; that if they consented to further delay, it might take
several days before the general would be discharged from the
grand jur}*; that though he was not present himself, he was ably
represented by counsel; and that considering the hardships and
inconvenience imposed on colonel Burr, by such delays, he hoped
Vol. I. 2 L
266
that they would now be permitted to proceed in their motion for
an attachment, or a rule to show cause.
Colonel Burr enforced the same principle. He was unwilling
to contravene the opinion or wishes of the court ; but the subject
required a few remarks. On Saturday, he had waived his rights;
he had consented to vary the motion, to give general Wilkinson
an opportunity to be present, under an expectation that he would
be here on this day, and that the motion would certainly be
made; but he asked, whether his consent was to be indefinitely
extended to any period f It was then in his power to vary the
form of the motion once more: but notwithstanding the inconve-
nience it wotild occasion to himself, he was ready to waive hi&
motion for the present, if they would but name a certain time
to-morrow, when they would be certainly ready.
Mr. Wirt declared that it was impossible for them to say,
when the grand jury would finish the examination of general
Wilkinson; before which time he could not come into court.
We would have thanked gentlemen for the accommodating spi-
rit which they had manifested, if they had not completely wiped
away the obligation, by converting it into a topic of reproach.. If
the rule were granted, general Wilkinson would still be before
the grand jury, who would not spare him to the court.
The Chief Justice said, that the court would have conceiv-
ed itself bound to hear the motion for the rule, as it was a motion
of course; but now it was varied, partaking of a motion for a
rule to show cause, and of one for an attachment. That if general
Wilkinson should be in court to-morrow, the motion might go on ;
that it was not certain that he would be present; but that the tes-*
timony of colonel Burr could not be delayed longer than till
to-morrow; and that general Wilkinson could cross examine
those witnesses when he came into court.
Mr. Hay stated, that this was the very circumstance which
they wished to avoid; that those witnesses were brought hither
to accuse general Wilkinson, and that he ought to be present t«
shape his inquiries according to their evidence, and to expose
their fallacy.
Chief Justice. — General Wilkinson cannot cross examine
them till colonel Burr have done with them.
Mr. Hay. — How can general Wilkinson know what questions
to put, if he know not what testimony has been given^by those
witnesses?
■ Chief Justice. — All the questions put to them, and their
answers, will be reduced to writing.
Mr. Hay was unwilling that gentlemen should believe that
he wished to waive the discussion for, a single moment. Perhaps
267
die grand jury would spare him for au hour* He understood
that he was then employed in decyphering a letter before them*
He suggested that a messenger should be sent up to the grand
jury, requesting them to spare him for an hour, if it were com-
patible with their arrangements.
The marshal was accordingly sent to deliver the message, who
returned and informed the court, that general Wilkinson was at
that moment under examination. The motion was accordingly
postponed till to-morrow, when it was understood that it wovdd
certainly be made.
The Chief Justice observed, that the attorney for the Uni-
ted States might state to general Wilkinson, the facts which
were charged in the affidavit, and which would agree in all the
most material points with the interrogatories that would be
proposed to the wimesses.
The court adjourned to the usual hour of adjournment.
Tuesday, June 23d, 1807.
The court met according to adjournment.
General Wilkinson appeared in court, and took his seat among
the counsel for the United States.
Mr. Burr rose and observed to the court, that as general
Wilkinson was then present, he would proceed with his inquiry.
He would have it, however, distinctly understood, that if the
<3harge could not be brought home to general Wilkinson himself,
so as to support the motion against him, yet it must attach ac-
cording to the testimony, to any of his subordinate officers, as
Mr. Gaines, or any other.
Mr. Hay objected to this extension of the motion, which he had
understood to be confined to general Wilkinson alone; particu-
larly as they had not given any intimation of such an intention
before: As no other person had notice of this intended motion,
but general Wilkinson, the inquiry should be restricted to him
alone.
Mr. Randolph insisted that the evidence to be introduced in
support of their motion, must attach to general Wilkinson, or any
of his subordinate officers, or any other person, according to
what the witnesses should prove. Before the witnesses were
examined, he stated briefly the nature of their motion and the
substance of the testimony by which he expected to support it.
That the charge against general Wilkinson was, that he had, in
conjunction with others, used unlawful and oppressive means,
under colour and in abuse of the process of this court, to bring
James Knox and Chandler Lindsley from New-Orleans to this
city; and thus had obstructed the free course of testimony, and
the&iirand regular administration of justice; and he hopedL,th8t
if the evidence would prove the facts as he expected, the court
268
would punish him, his associates, dependents, or others, according
to the degree of their misconduct.
The witnesses were then introduced. James Knox was first
sworn. His testimony, was as followeth:
He says, that he went to New-Orleans some time in March ;
soon after his arrival, he received a note from general Wilkin-
son, making some inquiry concerning serjeant Dunbaugh. He
waited on the general, who received and treated him handsome-
ly, took him by the hand, and asked him if he were not afraid af*
ter what had happened, and what had been said about him. He
told him he was not afraid. He ^sked hint, whether he were at
liberty to reveal what occurred in coming down the river ? The
witness said he was at liberty to reveal what he knew; but did
not wish to do so. He inquired whether the witness were a free*
mason? He then began to take notes. The witness stopped him
from taking down, and told him it was not his wish to have
what he said taken down. He complained of distress ; expected to
be ruined. Said that there was a great force coming down the river.
He asked the witness his circumstances ; what money was due
to him for his services in coming down? He answered, one hun-
dred and fifty dollars. Asked him if he were in want of money,
and offered to supply him, which the witness refused. He said
he was very unhappy; had lost his wife; but all that was no-
thing to his trouble on account of the state of the country. The
witness said that a subpoena had been served on him about the
12th of May, by Mr. Gaines, to attend this court; that he told
him he was not prepared to come round then, but he expected
to get money in ten or twelve days, and would then be ready.
He went to Gaines's office about four days afterwards; was
taken by a sheriiF on Sunday evening, who took him to judge
Hall's. The judge was from home. He went again, and was told by
the judge that he must give his deposition, or go round to Rich-
mood. He answered, that he had no objection to going to Rich-
mond; but having no counsel, would not give his deposition,
lest he should commit himself. No person but the sheriff was
present. The governor desired the sheriff to take his word, if
the judge could not be found : saw the judge, and was bailed
until eleven o'clock ; gave two securities, bound in five hundred
dollars each, to avoid being put in gaol. When he appeared, the
judge had before him a number of printed interrogatories. The
witness asked the liberty of reading them. He permitted him to do
80. The judge asked him if he would answer. The witness refused
until he had counsel; but offered to be placed iu confinement
until he could procure counsel. He afterwards saw, as his coun-
sel, Mr. Carr, who informed him that the judge had no right to
demiand such answers. The judge still persisted to interrogate
him, to some of which interrogatories he answered, in order to
save trouble. The witness then related every thing that passed,
269
from Meadville, until his arrival in New-Orleans. Mr. FortMras
then sent for and interrogated. He made some observations, and
refused to answer (being, he said, about Tom^ Dick^ and Harry).
After which the judge gave the deputy marshal a note, who put
Fort and the witness into gaol, among forty or fifty negroes and
criminris. Fort was bailed by his friends ; but they required bail of
the witness in five or six thousand dollars, and he remained in gaol
until the vessel was ready, in which he embarked. He requested
leave to get his clothes. Dunbaugh then came with some men with
belts and side-arms. The witness asked if they were a guard ? He
was answered, no; but that they were some acquaintances. That
he has since been told by Dunbaugh, they were a guard. They
went with Dunbaugh and himself, to the water edge. The wit-
ness asked whether lieutenant Gaines were on board ? They said
no, but soon would be. When Dunbaugh came to the gaol, he
had an order which was handed to the gaoler. While in gaol, the
witness wrote to Lindsley and doctor MulhoUon, to come and
see him; and told them if they came to New-Orleans, what they
might expect. He was informed by the gaoler that they would
be confined. He did not send the note. He did not see Gaines
until the next day. When lieutenant Gaines came on board the
vessel, he said the witness was in a bad humour; the witness
told him he was, and Gaines said that he had better be satisfied,
and bear his situation with patience. He asked Gaines for leave
to go on shore for his clothes, he did not care what guard was
sent with him. Gaines said, that it was not in his power to grant
it, but the power was in general Wilkinson. The witness was
not permitted to get his clothes, and came without any except
what he had on at the time, and except that Lindsley brought
him one of his shirts which he had lept him. Gaines, after hav-
ing told him that he might put him in irons, and bring him round
in that manner, offered him forty dollars. The witness said, that
if he would let him go on shore, he did not want it, otherwise
must take it It was paid and sent on shore; twenty dollars were
paid to his landlord, and the other twenty dollars returned to
him by governor Claiborne, who came on board and went with
them six or eight miles on the passage. And also, when they
came to anchor in Hampton Roads, Gaines asked him if he had
any objection to coming to Richmond ; he answered that he
never had any objection. Gaines said, that he was sent by the au-
thority of judge Hall. General Wilkinson spoke to him next day,
and asked him if he had any objection to come to Richmond.
He answered he had not, if properly treated; but he had been
brought off without clothes or money. General Wilkinson had
not heard of his not being permitted to bring his clothes, until
that morning. General Wilkinson agreed he was ill treated.
Told him that he (witness) must understand, that he was brought
reund by the direction of judge Hall. General Wilkinson pro-
270
posed to let the witness go to Richmond upoo his parcde of ho*
tiour, which was refused. Wilkinson said, if the witness wanted
twenty dollars, he should have it; afterwards he talked with Mr*
Lindsley, and returned to the witness and said, if he wanted fifty
dollars he might have it. Witness wanting money to purchase
clothes, took it. He observed, in the first conversation, that he
had twice asked favours of him and .Gaines, and would never
ask a third favour of any person* He came to Richmond with
Moxley, in a pilot boat. Moxley told him that he had orders from
general Wilkinson, to take charge of the passengers on board
the Revenge, and bring them to Richmond, and there wait his
(Wilkinson's) orders.
Cross-examination by the counsel for the United States*
Have you any military commission? Answer: None. Where were
you bom? Answer: In Maryland; left it very young; resided
in Pennsylvania, and left it sometime in November last. Left
Pennsylvania, (Meadville) for New-Orleans, on the 24th or 25th
of November, went down the Alleghany and Ohio to Beaver;
went from thence, with about twenty or thirty, to Blanner*
basset's island, where he did not recollect to have staid but
two days or a day and a half: left that place some time in
December, Blannerhasset and another with them, who were the
only persons who joined them there. Stopped at Shawnee Town;
went with about double the number to Cumberland island, just
opposite to the mouth of Cumberland river; staid a day and a
half, met with colonel Burr and a few others; the whole number
about fifty or/ sixty, about seven or eight boats, five fire-arms :
went thence to Fort Massac; Serjeant Dunbaugh met them there
with a musket, and after meeting with colonel Burr, he consi-
dered himself under his direction. Went to Natchez. Colonel
Burr did not accompany them* Went from Natchez to New-
Orleans* Some of the boats were chartered and others sold.
They arrived at New-Orleans on the 13th or 16th of March.
The first notice he had, after seeing general Wilkinson, of the
proceedings against him was, when he was carried before judge
Hall* He was said to be carried under an affidavit of general
Wilkinson before judge Hall* Captain Gaines requested nim to
write to him on shore, and he would get what he wanted. He
was not permitted to send the letter* Never mentioned this to
general Wilkinson till they arrived in Hampton Roads* That he
was treated as others while on his way; that is, as well as some;
not so well as some, and better than others* Arrived at Richmond
on Friday evening, put up at the Bell tavern. Three days elapsed
before he saw colonel Burr. He mentioned the treatment he had
received to colonel Burr, and intended mentioning it to the
court, on his first appearance; but was told it was unnecessary*
That general Wilkinson used no terror agamst him; and oiTered
to relieve him if he wanted money. Whilst at the mouth of
271
CuinbcTland river, and wlien colonel Burr made his escape, he
was one that took colonel Burr in a wheny, and carried him
some distance, and left him in the woods; did not hear him ad-
dress any one. The note written him by general Wilkinson, and
sent by DUnbangh, was left at his house sealed : the object was
to obtain some information about Dunbaugh* No letters. Car-
ried colonel Burr's things to a parson Bruin's, as he was told*
They had but few guns, which were traded for as they descend-
ed the river. The vessel sailed from New* Orleans in half an
hour after general Wilkinson came on board. The one hundred
and fifty dollars offered him by general Wilkinson, he was in-
duced to believe, was to bribe him to give evidence against colo-
nel Burr, or it might be considered as a bribe. Said he could ob-
tain from colonel Tyler a sufficiency to carry him home under
his agreement with that gentleman. This conversation took place
before the subpoena was served.
Lieutenant Gaines was then sworn. He stated that he receiv-
ed a letter irom the attorney general of the United States, en-
closing subpcenas for witnesses against colonel Burr. That he
went to New-Orleans in consequence, and arrived there on the
7th of May. Called several times at the house where James
Knox staid, with Mr. Lindsley and doctor MuIhoUon, and could
not find them. He was told by the landlord, that those gentle-
men walked out whenever be approached; they supposed he had
something against them. He told his business, and at length saw
them. They said, that the reason why they endeavoured to keep
out of his way was, that they had belonged to Burr's party, and did
not wish to appear against him. He told them that the comman-
der in chief offered them a passage in the Upited States' vessel
with him. He desired Knox and Lindsley to say whether they
would come or not ? Knox said he could not come until he had
made some money arrangements (though Lindsley seemed dis-
posed to come on). That he then applied to judge Hall; the
judge directed him to obtain an affidavit of the refusal, and that
he would take the proper steps. He said, that the subpoena might
be served by the marshal or sheriff, and proposed that he (lieu-
tenant Gaines) should be appointed by the marshal, a deputy.
He refused, unless he could afterwards be released from any
farther service in that capacity. Next day the judge told him,
that the marshal had left a deputation for him, and asked him if
he would act; he answered that he would, on the foregoing
condition, and that he should not attend to Knox, at New-Or-
leans. Knox appeared always ill-natured, which induced him to
ask him if he could do any thing for him ? He obtained from
the United States' agent at that place, forty dollars, and offered
it to Knox, which he, after some hesitation, accepted. In reply
to his inquiries, whether Knox wanted assistance, he hesitated,
and then said, that he wished to go on shore himself, to get some
2%Q
uecessaries out of his trunk* He told him that as the vessel was
going to sail so soon, he could not; but offered him pen, ink and
paper, and requested him to write to sotne friend on shore, to do
what he wanted done; or he would act for him, himself* He was
then in a very ill humour, and was so when the witness returned
on board. James Knox was under no restraint, from the time the
vessel sailed, till they arrived at Hampton Roads* To a question
put by Mr* Burr's counsel, by whose authority he acted, lieu-
tenant Gaines answered, that in every step relative to Knox, he
acted under the authority of the marshal, at New-Orleans, ex-
cept that he was authorised by the commander in chief, to offer
him a passage in a public vessel* In serving the subpoena, he
acted under the authority of the attorney general. When at
Hampton Roads, he inquired of Knox, whether he had any dis-
position to go to Richmond ? He said that he wished to come to
Richmond, but wished also to leave that vessel. He told him he
should leave it, but had not determined how he would be con*
veyed to Richmond* General Wilkinson told him, all would
come in a vessel, except those who would come in the stage*
His getting off, gave him no concern; because he supposed that
Knox could be caught again in some part of the country, if he
attempted to go away. Whilst the witness was on shore, general
Wilkinson procured a vessel in which Knox and others were seat
to Richmond* He considered Knox under his authority, not as
a military officer, but as deputy marshal* That he was commit-
ted to his charge, as such, in virtue of a warrant of commitment
issued by judge Hall. ' He did not knoytr the reason why the
judge made such an order* That general Wilkinson never at-
tempted to exercise any authority over Knox, on his passage*
That the deputation was not of his oiim procuring. That he had
received an order from the department of war, to leave the gar-
rison at which he commanded, under the direction of some
other person, and to attend to the orders of the attorney ge-
neral*
Question by colonel Burr* Had you no previous conversa-
tion with general Wilkinson about this deputation? Answer: I
had none*' I never heard nor had any conception of such a de-
putation till it was mentioned by judge Hall* He gave to
Serjeant Dunbaugh an order at New-Orleans to receive from
prison and deliver to the commanding officer on board the
United States' schooner Revenge, the body of James Knox,
and he was accordingly conveyed on board*
Question by Mr. Baker. Was not Dunbaugh a serjeant in
the army, and did you not consider him acting as such under
you? Answer: I should not have considered any citizen of
New-Orleans bound to obey my order; I did not consider
ssrjeant Dunbaugh farthsr bound than in compliance with his
273
promise* He waa called serjeant Dunbaugh, but I did not con-
sider him under my authoritj as a military officer. I took no
oath of office; I gave no bond to perform the duties of a de-
puty-marshal; I do not know that I shall get any pay; I have
no promise of any- General Wilkinson made his affidavit at
his own quarters, before Mn Cenas. I do not recollect whom
general Wilkinson consulted ; an attorney had been with him*
I delivered to general Wilkinson the subpoenas received from
the attorney-general of the United States, and among them
one for myself) another for Mr* Graham. I always considered
myself bound to obey the orders of general Wilkinson* I was
bound before the deputation to obey him, and I continued so.
I considered general Wilkinson as having the power of con-
trolling myself, and every person belonging to the army and
navy of the United States, on board the Revenge, if he chose
to exercise that control; but I do not consider that he did ex-
ercise such control.
The subpoenas which I delivered to general Wilkinson came
into my hands afterwards, but nothing passed between the gene-
ral and myself on the subject, except that I stated to him the
orders I had received, and the powf^r I possessed* My im-
pression was, that general Wilkinson must have been privy, to
the whole, and perhaps recommended that I should transact
this business* I communicated to him what judge Hall had
said; that an affidavit must be made of the materiality of Knox
as a witness, before he could take any steps to compel his at-
tendance* General Wilkinson knew that Kiu>x was put on
board the Revenge unwillingly*
On bur way to Virginia we stopped at the Havanna for
fresh supplies of water and other necessaries* Some on board
were sick ; they prevailed on the officers to call* While pre-
paring to go on shore, a shot was fired from the Moro castle,
and orders given to come on shore* They went on shore at the
request of the sick persons on board made to general Wilkin-
son and captain Read. They did not land until after four
o'clock in the afternoon, and a little after dark they set sail
again. Had good provisions, &c. on board* Heard captain
Read direct the cook to let those people have their provisions
regularly* To a question put by Mr* Burr's counsel, he an*
swered, that general Wilkinson pointed out the witnesses on
whom the subpoenas must be served* He, on several occasions,
received advice and instructions from the counsel whom he
consulted how to act in executing the business in which he waa
engaged.
Mr. Randolph* — Upon what authority were the forty dol-
lars received from the military agent? Answer: The money re-
ceived from the military agent was applied for, after several
Vol. I. 2 M
274
applications from Knox; and general Wilkinson advised me to
consult judge Hall, whether it were \egiA to demand money for
him? And was told by the judge that it was regular to advance
a reasonable sum; and was also told by the military agent, that
general Wilkinson had advised him to advance that sum.
The general advised me to consult the attorney-general there,
or Mr. Duncan, and the general's own idea corresponded on
the subject.
Mr. Graham being sworn gave the following testimony. A
short time after the arrival oi captain Gaines at New-Orleans^
I was told that he had subpoenas for witnesses, and one for my*
self; that there was a public vessel that would carry us to
Richmond. I then waited on general Wilkinson to know whe-
ther I could be accommodated in that vessel? My health was
bad at that time: general Wilkinson agreed that I should; and
then said, that he understood that there were several witnesses
in town, some of whom were unwilling, others unable to come
round; and asked me if I knew any legal means or process, by
which those who were unwilling could be compelled to come?
I told him I did not know, but I supposed the federal judge
could inform him. As there, was a misunderstanding between
the general and the judge, I offered to ask the judge myself, wh^«
ther there were such process ; and I did so. At this, or some
subsequent time, general Wilkinson told me to ask the judge,
whether there were any impropriety in advancing money to the
witnesses, and to what amoupt? The judge said^ that so far
from being improper, the witnesses had a right to demand it.
The judge said, in answer to the other question, that if the
witness refused to enter into recognisance, or to answer such
questions as would satisfy him of the materiality or relevancy
from the law, (which he showed me) he would be authorised
to send such witness round under the care of the district mar-
shal. He saw, a few days after, in an outer room at the judge's,
Mr. Knox talking with Mr. Keene, a lawyer; some short time
after, when these gentlemen came into the room, the judge
asked Knox if he were then willing to answer questions, or en-
ter into recognisance? He declined doing either. The judge
had that clause of the law before him. He pointed it out to
Mr. Keene, and a Mr. Fort^ who was in the same situation
with 'Knox, and advised them to do one of the two; or he
should be obliged to act rigidly towards them; that he was very
unwilling to act against them; but it was his duty, and he must
do it. The same gentleman had a curiosity to know what
questions they intended to put to him, and then the printed in-
terrogatories were shdwn to him". The judge asked Mr. Fort
to answer these interrogatories, which he refused to do. The
judge then sent for the marshal, and committed both of them.
275
In the afternoon captain Fort gave secnrity in 500 dollars ibr
his appearance at Richmond, and was released. He understood
captain Fort was going in the ship Amity to New-York, in or«
der to come to Richmond; but as Fort told the witness^ he
could not leave. New-Orleans without injury to his business,
it was his own opinion, that he would not leave that place*
Mr. Keene intimated to the judge, that he did not appear as
an attorney ; but expressed some doubt of the correctness of
the proceedings, and of the power of the judge to send Knox
round. The ship^s stores were good, and the persons treated
civilly and not restrained. They slept where he did. They
called in at the Havanna on account of bad winds, and being
chased close in by a British cruiser. Captain Read, who com-
mands the vessel, Mr. Gaines, Mr. Smith and himself went
on shore to procure fruit, &c. Remained there about three
hours. His impression was, that if the gun had not been fired
from the fort, they should not havie gone in. That part of the
navy of the United States, which is at New-Orleans, and was
formerly under the control of the government, and the officers
about New-Orleans, when the countrv was considered to be in
a state of danger, was put under the command of general
Wilkinson. He saw no guard on his way to New-Orleans* I
went, said Mr. Graham, partly by land, and partly by water. I
went down the river with captain Fort, who said, that he was
one of a party, whose object was to go against Mexico; of which
declaration he made no secret. I do not know by what autho-
rity Fort was brought before the judge, but judge Hall said
he felt himself bound to act under the law. I advised Fort not
to oppose the judge, who was a very determined man. Fort
replied, that Mr. Alexander said, that the judge had no right
to send him. The judge and Mr. Keene both requested him,
to request Mr. Gaines to remove Knox out of the prisodTto the
vessel.
Ijieutenant Gaines, upon being called up again, said he is an
officr r of the United States army, never consulted general
Wilkinson about accepting the appointment of deputy-marshal.
He understood Fort was included in the same affidavit with
Knox. He sailed from New-Orleans in the Revenge; saw ge-
neral Wilkinson exercise no kind of authority on the voyage. .
Mr. Graham said, that general Wilkinson opposed their
stopping at the Havanna for two reasons; first, that it would
occasion delay, and secondly, that his enemies might charge it
against him as an improper act. The gun was fired from the
Moro castle.
I understood that the judge had requested Mr. Gaines to
accept the deputation. Gaines did not wish to act. He was
urged by myself and others to accept it; and he did accept it, I
276
believe from motives of patriotism. General Wilkinson exer-
cisedno control over the persons on board; and no restraint
was used, except what has been mentioned with respect to the
witness Mr. Xnox.
Alter the testimony was closed^ a dispute arose between the
counsel, which side should begin the argument^ both parties
claiming the right. After some observations by gendemen qn
both sides, it was determined, that the correct distinction was,
that he who obtained a rule to show cause should close, and, of
course, begin the argument.
The court then adjourned till to-morrovr, eleven o'clock.
Wednesday, June 24th, 1807.
The court met according to adjournment.
Mr. Graham was called by Mr. Mac Rae, and questioned,
relative to the state of the public mind at New-Orleans, and
whether great alarms were not excited by the conspiracy ? He
answered, that he had not arrived at that place till the month of
March, and at that time the public mind was much agitated.
To a question put by colonel Burr, whether general Wilkin-
son himself had not contributed to excite those alarms by his vio-
lent measures i Mr. Hay objected as improper. Colonel Burr
insisted on the propriety of his question.
The court was of opinion, that the witness was only lx)und to
answer such questions as directly applied to the subject before
them.
Mr. Graham said, that there was a con:iiderable portion of the
people at New-Orleans, who believed, that there was another
portion unfriendly to the government. He did not know the mea-
sures pursued by the executive, at New-Orleans. He was then
interrogated as to the post-offices being robbed of letters. He did
not recollect that general Wilkinson particularly mformed hina
how letters of information were received by him; only he ob*
served, concerning a letter partly in cypher, that he had received
it from a house at New-Orleans; [which Mr. Graham named; but
h is not inserted, as he was not distinctly heard] that the practice
of Opening letters, if it existed at all, had ceased, when he arrived
at New-Orleans; that general Wilkinson showed him three or
four letters. He did not know how thoseletters were taken from
the post-office, but it was generally said at New-Orleans, that the
post-masuer there had given him those letters.
Colonel Burr asked him, whether a considerable number of
letters, directed to himself, or to others, had not been taken from
the post-office there? He answered, that he knew not; but there
was an impression on his mind, that letters were improperly taken
27T
from the post-oi&ce; whether by general WiUcinson or not, he
knew not* He rather thought not.
Mr. Martin. — Did you not understand that general Wil-
kinson had placed guards on the river, and on the roads, to stop
travellers and passengers from passing ?
Mr. Graham.— I did understand that he had placed guards at
two points, near New-Orleans, for the purpose of arresting sus-
pected characters. I had understood also, that certain persons
had been seized.
Mr. Martin. — Did general Wilkinson never tell you how he
got those letters ? Mr. Graham. — He did not.
Captain Murray was then called and sworn.
Being interrogated by colonel Burr, he stated that he was
stationed at Ville Grove, two miles above New-Orleans. His
orders from governor Claiborne were to stop boats coming down
the river, and examine them ; to examine papers, but break no
seal : but that, from his orders he would have deemed it his duty
to have transmitted letters addressed to suspicious persons to the
executive at New-Orleans.
Colonel Burr. — Would you have obeyed the governor, since,
as an officer, you are strictly bound to obey general Wilkinson ?
Captain Murray. — ^Yes, I should. The orders from governor
Claiborne originated with, and always came through, general
Wilkinson. ,
Mr. Edmund Randolph then addressed the court thus :
May it please your honours : The motion which we so often at-
tempted to bring forward, I hope, will now be submitted and freely
Argued: the motion to attach general Wilkinson, for endeavouring
to prevent the free course of testimony. The immediate object will
be to call on him to answer interrogatories, whether improper
Eractices have not been used by him : the ulterior object will
e determined afterwards. I believe that, in cases of this
kind, where strong suspicions exist, the attachment must go, be-
cause it is in the power of the party charged to purge himself on
oath. If he refuse, it arises from a consciousness of jiis own
guilt. His innocence is first to be presumed, and every thing is
in his own power. If he omit to clear himself, the court will
take measures for enforcing obedience to the power and dignity
of this tribunal.
Give me leave to open this case as it now appears, from the
testimony before the court. It no longer depends, as at first in-
sinuated, on the evidence of James Knox, who has been censur-
ed for enmity against general Wilkinson. It has been enlarged
278
and enforced by the testimony of tvro very respccttble gendemen^
brought forward by general Wilkinson himself.
Sir, if we were to have the same command or range of per-
sons that the counsel for the prosecution have, we should lay
before you a history of this illegal and oppressive proceeding, far
more detailed, and far more strong, than is yet in our power. I
judge, that this would be our ability; when you hear so much
from his own witnesses, who are supposed by him the best to
understand the circumstances which can operate in his favour.
And here give me leave to pay a tribute of applause (which I
shall always be ready to avow) to the frankness and manliness
of those gentlemen, whom he has introduced, in candidly and in-
genuously stating all the circumstances known to them. That
confidence which I had before in the evidence of James Knox is
greatly strengthened and confirmed hy the strong and respecta*
ble testimony of lieutenant Gaines and Mr. Graham. Mr.
Gaines, a lieutenant in the army, was, by words, made a deputy
marshal. Sir, I feel a repugnance at the idea. I feel a repug-
nance at this germ of an alliance between the civil and military
authority, when jthe civil wants not the aid of the military arm.
I am not sufficiently versed in the policy of mixing offices of
such opposite descriptions together, without necessity. I hope I
shall never have occasion to be acquainted with the extraordi-
nary' and dangerous policy of joining together such offices.
That a man, owing obedience only to a superior military com-
mander, is to be placed in a civil capacity, for the single purpose of
catching and detaining unfortunate men, who may happen to be
witnesses in a particular cause, is a dangerous innovation, and
ought not to be tolerated. Sir, I do not pretend to recollect the
puqjort of that paper, by the authority of which lieutenant
Gaines acted as deputy marshal; but I understand, that its prin-
cipal object was, to enable him to transport Mr. Knox froth
New-Orleans to Richmond. It is immaterial, at this time and
place, to enter into a specification of his power thus conferred, or
attempted to be conferred. It is sufficient that a military man
is created a deputy-marshal ; not for the general purposes of the
office of marshal, but for the single purpose of proceeding and
carrying by force, to Richmond, a man apprehended as a witness
in New-Orleans. This outrage-, whether it be called civil or mi-
litary, was committed after Mr. Knox was regularly summoned*
The inference that I draw from this, is, that something of a mill*
tary nature was intended in order to effect the object in view by
compulsion.
Can you believe, that there were so few men of integrity in
New-Orleans, (I believe it abounds with such) that no man
could be found by whom this business could have been executed,
without this oppressive union of military power with civil aa-
279
thority i It cannot then be justified by the plea of necessity. It
was as unnecessary as it was unprecedented and illegal; and whe«
ther this appointment was suggested by the judge (who seems to
have been infected with the mania es:cited by Wilkinson,) or
whether it proceeded from Wilkinson himself, it was equally im«
proper. He was appointed to an office without the possibility of
employment: the sub]jcena had been served, and he had nothing
to do as marshal. Every step taken, after the subpoena was served,
was military, coercive and violent; nothing conformable to law.
Consider the whole testimony, and say, once for all, whether it
n^erenota contrivance to effect their favourite object, in pretend-
ed observance, but in real evasion of the law? It is evident, that
in truth and in law, Mr. Gaines was no deputy marshal. He
was comnanded by the act of congress, to give bond and secu-
rity before he entered on the duties of his office ; nay, more, he
must qualify and be duly sworn in the same manner that the
marshal himself is sworn; and till he does comply with these re-
quisites, he has no more power as a marshal, than any man whom
I now behold in this assembly. [Here Mr. Gaines being called for
chat purpose,showed his deputation.] But it may ha said, that tliere
was no occasion to give bond and security, because he was only
appointed for the special purpose of removing a man from New-
Orleans to Richmond. But before he could be a marshal at all,
these requisites must be complied with. He would not otherwise
be a marshal for any purpose* Without doing so, he was wholly
vnauthorised, and intitled to no respect as an officer. He had no
civil authority or character: he had no right to take upon him-
self the office of sub-marshal. Mr. Gaines frankly and can-
didly tells you, that he was not artsolved from military duty; but
to comply with the wishes of the general, he was obliged, or found
it convenient, to act thus towards James Knox; and he has
said, that if commanded by the general, he would have put
him in irons. The military genius prevailed- over the civil
wherever it was seen. But he deemed it necessary to make use of
the judge to execute his plan. This man, without any authority,
by the orders of his superior officer, and to please him, goes to
judge Hall; he has an interview with him; ^^ How am I to get this
refractory man to Richmond?'*'* *^ Tou cannot do it without an affi*
davit J^ ** How must this affidavit be procured?" The transaction
furnishes the answer. It is procured by a communication through
Mr. Gaines to general >Vilkinson; that this step was necessary
for this particular purpose. The affidavit is made by general
Wilkinson, knowing that its object was to effect the transportation
of James Knox to Richmond. He himself caused his own affi-
davit to be taken. He tells capuin Gaines, a military officer un-
der his command, to transport him. He wilfully then contributed
to do an act which he knew to be illegal. Do not let me be told,
280
that it was the act of the judge. The case will not be amended by
that refuge; for the judge himself, as is manifested by all the cir-
cumstances, was stimulated by Wilkinson, and greath^ tran-
scended the limits of the law, to effect the performance of an act
to which Wilkinson was not only contributing, but of which he
was prime mover. He demanded bail and bond security that
Knox would go twelve hundred miles. Sir, if conduct like this
in a judge is to be tolerated, there is an end of all law and jus«
tice. He could not but know, that there was no law authorising
such an act of oppression. What, sir, shall he, from his own arbi-
trary will, demand bond and security, in a large sum, of a man
who is merely summoned to appear at a court as a witness, who
is willing to attend, and whose failure to appear legally subjects
him only to an attachment? Shall he cast a man thus summoned
into gaol, because he cannot give such excessive security as he
tyrannically demands? They wished to extort testimony from
this man by intimidation and violtrnce; they required bail of him,
though a stranger without property, in five or six thousand dol-
lars, in a case where they had no right to require any security^
or to molest him at all. Was this man capable of giving bail in
so excessive a sum? This judicial outrage of demanding bail,
where none was demandable; of casting the man into prison,
because this illegal condition was not, and could not be complied
with, and this for the purpose of extorting evidence, is an of-
fence of unusual enormity. What a mass of destruction to the
rights and privileges of private citizens is here contrived be-
tween the judge and general Wilkinson? The illegal design can-
not be accomplished without an affidavit. Wilkmson voluntarily
makes this affidavit, stating the materiality of the evidence of
Knox. After it is made, by what means does it come into the
hands of judge Hall? Who was the carrier of it? Not lieutenant
Gaines, but general Wilkinson himself. And for what purpose?
To enable them to transport James Knox to Richmond. And who
is the executioner of this order? This transportation is to be ef-
fected, not by a regular marshal or civil officer, but by an officer
under his command, unless Knox gives bond and security, in
a strange country, to an amount which he could not possibly com-
mand; and moreover, this is to be executed on a man already in
gaol for the sin of being a witness! Thus general Wilkinson has
incorporated himself with all HalPs acts.
But Wilkinson connects himself further in these proceedings,
which are all illegal from beginning to end. Stimulated by Wil-
kinson's oath, his agents put Knox in confinement; and Knox
was removed by a miiitary order, from an officer under the com-
mand of Wilkinson, on board of a vessel under the control of
this commander in chief: so that the outrage against Knox was
commenced by his imprisonment on shore, and consummated by
281
bis imprisonmeiit on sea; aad both contrived by Wilkinson. The
aape commander in chief has drawn money from the military
chest, for the purpose of aiding him in these unlawful transac-
tions. Sir, you cannot view any part of this case, without
viewing the same military features strongly marked: general
Wilkinson as the principal actor, as a military character, and for
military purposes* Wilkinson most assuredly considered himself
as possessing the mbst positive power over this vessel; because
he authorised captain Gaines to offer him a passage in the vessel;
and how could he give such an authority, if Read was not under
his command? Wilkinson was the effective commander of this
vesseL Observe, sir, if you please, the order, which Gaines
gives. It is a written order, in a military style, delivered to
Serjeant Dimbaugh, commanding him to take this man into
custody. He directs him not as a deputy marshal^ but as cap-
tain Gaines, to take possession of Knox; and he addresses him
not as an individual obliged to obey a marshal, but as Ser-
jeant Dunbaugh, bound to obey him as his military supe-
rior officer; and no permission is given to Knox to go on shore,
but through Wilkinson* The spirit of Wilkinson appears through
the whole of this business* The genius of Wilkinson is ap-
parent in every stage of the transaction. I was at no loss at all,
when I saw the letter of the attorney general directing so many
subpoenas to be put into Wilkinson's hands, to perceive the object.
What authority could the attorney general confer on Wilkinson ?
I had, no hesitation, on reading this letter, to conclude that the
intention was, to enable him to effect by force, the removal of
such persons as he could not persuade to come voluntarily. I re-
fer to the fact; it is acknowledged and cannot be denied* [Here
Mr* Hay interrupted him: he insisted that die letter should be
read, and that it would show, that Mr* Randolph was incorrect.]
Mr* Randolph waived the reading of the letter; but appealed to
the facts, and insisted that his inference was justified by the tes-
timony. He then proceeded. Is it not singular, that subpoenas
in a civil case, should be confided to the military commander in
chief? Did it not seem to tell him, that he was to use these
subpoenas with some degree of authority, and did he not at least
arrogate that authority to himself? Why did general Wilkinson
mention to Mr. Gaines the necessity of summoning Mr. Knox,
in recommending to him to find out who were witnesses ? Who,
I again ask, carried the affidavit of Wilkinson to judge Hall ?
Mr. Gaines has stated that he did not; who then carried it but
general Wilkinson himself? Does not this still go to show, that
there was not the minutest thing that general Wilkinson would
omit for this purpose ? There was a military temper, a military
spirit displayed by general Wilkinson, throughout the whole
transaction. Why did he consult an attorney? Washeainarshal?
Vol. I* 2 N
282
Was military money put into his hands to employ a lawyer ?
No, sir, but because he viewed the subject in a military form*
Gaines tells us that Wilkinson must have known that Ktiox was
carried on board unwillingly; yet, notwithstanding he knew
this, and that Knox was anxious to come oii shore, he suflfers
him to remain in the pinnace of a ship — ^in the hold ; perhaps
to mess with degraded people : torn from his family and his pri-
vate concerns, without the common comforts usually prepared
for a sea voyage ; an exile from his country, without money,
without friends. Mr. Gaines states, that he, Wilkinson, had ob-
served to him,that there were some unwilling witnesses, (such as
he must coerce by military rigour) ; and Mr. Graham tells you,
that he consulted him on the means of sending forward unwil-
ling witnesses. See, then, the solicitude of Mr. Wilkinson,
through the whole of this business! He began; he consum-
mated every thing. Dunbaugh was applied to, for the liberty
of Knox, and it was refused. But Wilkinson took his parol of
honour, from him at Hampton: none but Wilkinson could give
him liberty. We have seen him in the character of a military
tyrant. We shall now find him using the blandishments of a
courtier. He is particularly complaisant and friendly; oifering
him money, and any services in his power, in order to relieve
his wants. At one time he asks him, ^^ Are you not afraid of
seeing me, after what has happened to many ?" At another, he
asks him in a familiar way, if he were not a free mason; and
thus profaned that institution, by attempting to impose on him
the seal of secrecy. Terror was used to frighten him; and when
he was found too firm and stubborn, cajoling and complacency
were used. The means of operation were changed as he found
it expedient. It is immaterial in what order these things took
place. It is certain that they all took place. Various passions
played in his breast; sonretimes softness, sometimes severity.
Sir, I beg to deduce from these facts, this conclusion: that
general Wilkinson caused the arrest and imprisonment of Mr.
Knox; that Wilkinson executed it; and that it was done for
the purpose of compelling Knox to give testimony. Though
he was privileged as a witness, Wilkinson, by his own authori-
ty, had him again imprisoned on board the vessel; and this,
also, for the same purpose of compelling him to give testimony,
and of interrupting the free course of evidence. These are the
principal facts upon which an attachment ought to issue against
general Wilkinson. Sir, I will not stop to look at the insinua-
tions against Knox. He had been summoned by the United
States, and was waiting to arrange his private affairs, to enable
him to depart for this place. The account which Knox has
given, is just, candid, and unexceptionable; and shows that he
was very much disposed to give his evidence. It is truly a hard
283
case, that he should be solicited by the United States to come
as a witness, and when he does come, that his character should
be assailed as participating of something criminal. Facts, then,
are fixed as to general Wilkinson. But it may be asked, what
motives general Wilkinson could have for his conduct f It was
said the other day* that he was the phot of the prosecution.
The prosecution was not hazarded before his arrival; not a
single witness was sent to the grand jury till he came. The
grand jury had to wait several weeks for his arrival. We have
already had occasion to notice the stake which general Wil-
kinson had in the issue of this prosecution. Sir, the truth is,
and it cannot be. concealed, that the names of Wilkinson and
Burr are antipodes to each other by the act of Wilkinson him-
self. Wilkinson declares, and the fact fs, that he never will ret-
gain his meridian brightness, unless he can throw Mr. Burr
into darkness. It is his duty to take care, that like some
mock god, he fall down from his imaginary glory, tum-
bling among ruins, and into a chaos of rubbish, which he him-
self has created.
Thus we have established what Wilkinson has done, and
what were his motives. Let me now show, that these facts do
amount to a contempt of the court. From the authorities which
I will read, it will appear, that no force or violence should
^ver be unnecessarily used, in making arrests ; and of course,
every species of unnecessary force, in compelling witnesses to
attend to give depositions, or in executing any other process,
amount to a contempt of the court. Hawkins^ in book 2. sec. 2.
lays down this general principle, that ^^ it seems clear from
the general reason of the. law, that all courts of cecord have a
discretionary power over all abuses by their own officers, in
the administration or execution of justice." And in sec. 3. he
lays .down these general principles, that ^^ it is every day's
practice to grant attachments for misdemeanors of this kind;
as, for using needless forccy violence and terror^ in making an
arrest; or by breaking open doors, where, by law, it is not jus^
tifiable, and there is no plausible excuse for doing it ; or treat-
ing the persons arrested, basely and inhumanly, or keeping
them in custody, till th^y pay money ; or making an arrest
without due authority ^ And in the twelfth section of the same •
book, after having spoken of punishing by attachment, the mis-
conduct of attorneys, he says : ^^ Where the court may proceed
in the manner above mentioned, against other officers of the
court, there being scarce any thing of this kind to be met with
in the books; I shall onlv observe, that it seems clear from the
general reason of the law^ which gives all courts of record a
kind of discretionary power in the government of their own
officers, that any such court may proceed in 9uch manner ^ [He is
-t
284
speaking of the process of attachment] against any such officer^
not only for refusing to execute its commands^ or for executing
them irregularly^ remissly ,, or oppressively ;hxyt also for all kinds
of oppression or injustice done by them in the execution of their
offices^ or by colour ofthem*^^ And in section 41. of same book^
he says, that ** making use of the process of the court in a
vexatious manner" — and, in section 42. that ^^ using it to serve
the purpose of oppression or injustice, are both punishable by
an attachment." Here, then, is a universal principle, that for
all kinds of oppression or injustice^ done by the officers of courts
of justice, either in the actual execution of their offices, or by
colour ofthem^ they may be proceeded against by attachment*
If we ao not produce a^case in point, it is for the reason men*
tioned by Hawkins, that there is scarce any thing of this kind
to be met with in the books, and therefore the general princi-
pie must be resorted to. Where the public necessity, and the
cause of justice require, that a party should be arrested by an
officer, the officer must use no violence or terror, in making the
arrest; he must be guilty of no act of oppression in any case*
If no violence or oppression ought to be used, where an arrest is
authorised, how much more must the law discountenance such
violence and oppression, towards those who are not liable to be
arrested? The oppression practised upon Mr. Knox, in this
case, has been by colour of the process of this court ; and those
guilty of it ought, on the principled here laid down, to be pu-
nished for it. This is a more violent case, than any mentioned
by this author* What would Hawkins have said to this case,
where we see a man, who was regularly summoned as a wit-
ness, to attend a court of justice, seized at New-Orleans, up-
on the affidavit of a military officer, dragged before a person,
who is called a magistrate, for the express purpose of being
held to bail; required by this magistrate to give bail, for his ap-
pearance next day, in an enormous sum, in a place where he is
unknown ; then thrown into gaol and confined for three days, in
a sultty climate, among negroes and felons ; then taken out by a
military authority, placed under a military guard, and by a man,
who, though a military officer, had the name of a deputy mar-
shal conferred on him, for the purpose of executing this tyran-
nical act, and that gentleman, himself, acting in this double capa-
city under the authority of general Wilkinson; then forced on
board a vessel, and continued under restraint, till he gets with-
in a few miles of Richmond! and allthisy without so much as
the pretence of any cause or crime, and under the control of
Wilkinson? I ask, what would Hawkins, or other eminent £ng-
glish writers, have said of a case of such flagrant oppression f Is
not this the use of needless force, violence, and terror? Was
not this an act of inhuman treatment to Knox ? Was not the
c
285
process of this court abused, for the purpose of oppression and
injustice? Was not vexation practised under colour of this pro-
cess f And do not the offences committed, come completely
within the definitions of Hawkins, as punishable by attach-
ment? Is not this arbitrary and illegal arrest, contrary to all
practice and experience, in cases of witnesses in that country?
There has been no example, in this country, of confining a man
for the purpose of compelling him to give testimony. He only
enters into a recognisance to appear in court to give testimony*
No compulsion or influence is to be exercised over a witness; '
it is forbidden by the law. All temptation to perjury is taken
away, as neither threats nor promises, rewards nor punish-
ments are permitted by law. In the examination of a witness,
no force is to be used. On the contrary, when a witness has
been summoned, and has not failed to attend, there is no pre-
sumption or anticipation, that he will not obey the summons ;
there is, consequendy, no compulsion to be exercised on him.
Voluntary affidavits cannot be restrained. They are not free
from exception, because they are liable to be abused; and are
not legal evidence on a regular trial, because taken ex parte i
but many people.will go before a magistrate of their own accord,
and make such affidavits. No person can prevent it. But when
these ex parte affidavits are spoken of» it is always meant, that
they are voluntary* A. forced affidavit never was heard of before.
Let us look at the power which the marshal has on such occa-
sions. The 33d section of the judicial act points it out.— -1 voL
Laws of the United States^ p. 73: ^ If such commitment of the
^^ offender, or the witnesses, shall be in a district other than that
^^ in which the offence is to be tried, it shall be the duty of the
^^ judge of that district where the delinquent is imprisoned,
^ seasonably to issue, and of the marshal of the same district to
" execute, a warrant for the removal of the offender, and the wit-
*^ nesses or either of them, as the case may be, to the district
** where the trial is to be had.^' What is the power which the ma-
gistrate has by this clause? It is unnecessary to inquire into the
extent of it. He had no such power as is here contended for.
The party accused was not committed by him^ nor brought be"
fore him^ nor imprisoned in his district. He had, therefore, no
right at all to confine the witness for the purpose of transporting
him tothe district where the trial was to be had: and yet, that was
done by Mr* Hall, notwithstanding the plain and explicit terms
of the law, that the duty of ^* the judge of the district, where the
delinquent is imprisoned^ is to issue a warrant, and of the mar-
shal of the same district to execute it^ for the removal," &c. This
judge Hall well knew, that the accused was not imprisoned m
his district; that he had not committed him; and that, there-
fore, under this law, he had no right to issue such a warrant;
286
and as he could not lawfully grants so the marshal could not
lawfully execute such a warrant. The act was, therefore, unlaV*
fill, and every person knowingly and actively concerned in it, or
otherwise contributing to it, was participating in the offence,
and guilty of a contempt of the court*
I am astonished at the boldness of this judge, in supporting
the arbitrary military order of the general ; for such it assur-
edly was. Affidavits, sir, they called for as gluttons: their
, greediness is never to be satisfied. But why did they ask for
them? What was their object in so doing? Was it not to entan*
gle their prisoner, by compelling him to make an affidavit,
which he could not afterwards retract? The witness once com-
mitted by his oath, struggles to adhere to what he has sworn
to. The printed interrogatories pin him down to a particular
point. Whatever may be his wishes or feelings, he must adhere
to them. Gre^t strength and presence of mind, are not always
to be expected in a person, placed as Mr. Knox was at New-
. Orleans. That strength of mind, which will adhere to the exact
truth under every pressure and difficulty, is not to be found in
every man. The witness is not to be always at hand to explain
his affidavit. Mr. Knox was in a strange country friendless, in
want of every thing, and subject to the military despotism of
general Wilkinson. From his situation it might be supposed,
that the affidavit which he would give would be different from
what it would be, if given in a court of justice, where law and
•rder are preserved, and testimony is not extorted at the
point of the bayonet. This was the object of the printed inter-
rogatories; and of obtaining the affidavit of Mr. Knox: for they
calculated, that a regard for his own reputation, would prevent
him from contradicting any fact to which he had previously
deposed. He might hesitate between the love of truth, and a
regard for his character. He might gready prefer a candid de-
tail of facts; when by showing him his former testimony, and
reminding him that want of uniformity in his evidence would
expose him to, public contempt, his real regard to the truth
would be shaken, so as to make him confirm his former ex-
torted statement. Sir, there is not a more dangerous power,
that can be exercised on the part of the government, than that
of forcing a man to give an affidavit taken ex parte ^ by a man
who will not be careful ,to state facts as intended by the wit-
ness, but as tending to establish the object, or to favour the
views of those who take it. He may wish to retract : but when
his deposition is brought before his eyes, he will be unable. Sir,
what must be the force of that man's mind, who, unskilled in
©ourts, unskilled in the world, can give a correct statethent of
facts,when confronted in court with his declarations before com-
mitted to paper, and can firmly explain and give a narration dif-
287
ferent from it? Who can be Bafe,if proceedings like these should
be tolerated? We are told, that the bill of rights gives to the accused
the right of beingconfronted with his accusers and witnesses. That
privilege would be evaded in a case like this. The witness would
oe unequally matched in meeting the terrors of a slanderous
world. Yes, he would be terrified by the censures of an inconsi-
derate and defamatory world. As long as the law could not reach
him,he would not hesitate between adhering to his former depo-
sition, and what he would know secretly within himself to be
correct. I trust, that whatever may be the fate of this motion,
you will not suiFer such encroachment on the privileges of wit-
nesses ; that you will not suiFer them to be intimidated, and over-
awed by art and dexterity, from. telling the real truth; or com-
pelled to give colouring to circumstances contrary to their
meaning. Sir, we cannot do better than to adopt in the law, the
principle in the Lord's prayer: ^^Lead us not into temptation."
This improper mode, of extorting ex parte testimony, will cause
a man to have a conflict in his own mind, between the truth of
which Ke is conscious, and what he msty have hastily been made
to declare. We contend, that neither the proceedings in a cause,
nor the witness should be interfered with, and that to do either
amounts to a contempt of the court. In support of these prin*
ciples- we adduce several respectable authorities. — Sth Viner^s
Abridgment^ p> 444, 445, 446. In ^d Atkin^ 469. it was deter-
mined to be a contempt of the court, to publish a libel against
a party, or an advertisement reflecting on the witnesses in a
cause. And it was observed by that great chancellor. Lord
Hardwicke, ^^That nothing was more incumbent on courts of
^* justice, than to preserve their proceedings from being misre-
*^ presented; that nothing was of more pernicious consequence,
^^ than to prejudice the minds of the public against persons con-
^^ cemed as parties in a cause before it was finally heard." It was
also observed by him, that ^^to abuse the parties in a cause, or to
^^ prejudice mankind concerning it before it was heard, was a
*'^ contempt of the court as well as to scandalize the court itself."
And in 2d Vezey^ 520. it was adjudged, that to publish an ad-
vertisement concerning proceedings in court was a contempt of
the court. In the case here referred to, a man was committed for
offering 500/. to prove a fact, though the court had already decid-
ed the point. The principle is the same in the case now before the
court, as in those cases. Why is the publication of a libel against
a party in a cause depending in a court of justice, or of an ad*-
vertisement reflecting on the witnesses, deemed a contempt of
the court? Why are all publications to inflame or prejudice the
public mind prohibited? Because they tend to prejudice the
public mind against the parties, or the proceedings in the cause;
because they obstruct the free administration of justice ; because
«.
%
4
288
it may Influence the minds of the jury^ who may have to try the
cause, and, consequently, may occasion an unjust determinar
tion. Why are such rules of caution adopted in taking evidence,
but to prevent false swearing? Why are needless force and vix>-
lence in making arrests forbidden^ and why is force towards a
witness censured by the law? Because, in these cases, the mind
is not left free, though it ought to be free. Compare these
cases with the severity practised in this case. The minds
of the public may not be prejudiced, but the mind of the
witness was not free: he was under temptation to adhere to
what he had said. He may, indeed, not have been under ter-
ror; perhaps the firmness of his mind may have supported him,
and prevented him from being alarmed: but terror was rigidly
employed by military authority. He was arrested and thrown
by a military officer into gaol ; was escorted by a military officer ;
forced on board a military vessel, under the command of the
same military officer, and there for a long time restrained by the
same military officer. If there can be a case of greater enor-
mity than this, it has eludeid my search. If there were nothing
in this case more than the improper and unjust effort to obtain
the affidavit of Mr. Knox to commit him, it would be sufficient
to constitute a contempt of the court, and would be punishable
by attachment: but it is rendered further criminal by the force
used to obtain it. The liberty of the witness was invaded. A
free citizen of the United States is dragged by corporeal force
and thrown into gaol, for the crime of being a witness; and
this within the knowledge, and at the instigation of general
Wilkinson. I hope I shall not be told, that there was an associ-
ation with certain conspiracies, which rendered these rigorous
measures necessary and proper. There was no connexion
proved between Knox and any conspiracies. Why insidiously
attack a man as a witness, who is to be denounced as a crimi«
naU I hope that no man, who is not guilty of a crime, will be
caught and cooped as a gaol-bird, and compelled to receive
crumbs of bread through the grate of a prison, at the will of a
military commander, especially when I recollect what is to be
superadded : that he is to be transported twelve or fifteen hun-
dred miles, not for trial or suspicion of an oiFence, but for the
iniquity of being supposed to be a witness, accidentally ac«
quainted with facts. What are to be the consequences, if such
doctrines as these are to be tolerated? That it is only in the
breast of a military commander to transport any, the most
peaceable citizen, if he be only supposed to be a witness, on
boardof a vessel, under militaiy restraint, at any season of the
year, however inclement, and any distance, without a crime, or
the suspicion of a crime ? We, who have so often seen and read
the declaration of independence, must feel indignation at the
».
,289
oppression practised upon Mr. Knox. This is one of the acts
of oppression, we are told, that the British government had
committed against us. ^* Transporting us beyond seas, to be
tried for pretended oifences," is stated in the declaration of in-
dependence, as one of the principal acts of misrule, which rous-
ed us to resistance, and to declare ourselves independent. To
be free from such aggression on our rights was a fundamental
part of the basis of our independence. This was not a mere ebul-
lition of patriotism for the purpose of exciting popular phrensy;
nor one of those artifices used to increase the public discontent, '
or to swell the catalogue of the crimes committed by Great
Britain. No, sir, this particular injury alleged in th^ decla-
ration of independence was a real, an enoi^ous grievance^
which was execrated by the wisest men of our country. Exemp-
tion from it was founded in human rights, and was one of those
blessings of liberty to which we had by nature a right, and which
having secured, we ought ever to be jealous of preserving.
This invaluable privilege we claim as citizens. It is a demand
which we make of the government for protection, and it must
be guarded by the court, unless some of those doctrines, which
we have long reprobated in a military despotism, shall be sanc-
tioned to destroy our rights. Even then^ when criminab were
transported, the innocent were left unmolested. What shall we
say to this aggravated case, when the gentlemen themselves
must admit, that this man is innocent?
I will not enter into those feelings that mig^t be described,
but I feel horror when I reflect that an individual, innocent and
inoffensive, engaged in locating lands for the subsistence of
himself and family, should be stopped from completing his lau-
dable undertaking, and taken up far from hishome^his family and
friends, and transported as a witness twelve hundred miles, to
the injury and derangement of his views and domestic con-
cerns. . I hope, sir, that transportation will be reserved for the
guilty. If these things be done and tolerated in the green tree,
what shall not be tolerated in the old? What is to be the effect
of a precedent like this? Who can foresee the consequences if
it be not repressed? This particular case may lead to dreadful
events, and by artificial means become a tempest. But re-
member, sir, you have foresight, and can judge of the prac-
tical effects of injurious precedents; and if the unjust proceed-
ings on this case be not severely censured and punished, though
we may not suffer, our children will repent of it. But this act
is said to have been extrarterritorial, and that Wilkinson was not
engaged in the whole of it ; and therefore it is pretended without
the control of the court. This is true, as far as Mr. Hall is con-
cerned* We cannot operate on him here. If it were so at the be-
ginning, see how it has passed from New-Orleans to Richmond.
Vol. I. 20
290
Wilkinson was engaged in it at the beginning, at the second stage,
and at James* river itself. The spirit of Wilkinson pervades the
whole. He is every where seen, not merely as .an integral part,
but as the first cause of the whole. Is this court to suiFer its
witnesses to be abused without its jurisdiction? But I say, that
it was not without the limits of the jurisdiction of this court.
There must be a power in every court, to procure the attend-
ance of witnesses; and wherever that power extends, the wit-
nesses are protected by it; particularly if the man who has
abused them, be present before the court. General Wilkinson
is present and may be animadverted on. I will not pretend to
say, what effect this may have on his character, nor can it af-
fect the right to examine into his conduct; because he ought to
have preconceived the consequences before he committed the
acts. The man who interposes the sword, in support of the
civil authority, ought to have the patriotism to acquiesce under
the consequences, let them h6 what they may. The prying
world may ask, whether Wilkinson is to be supported in such
outrages? In practising on the necessities, fears, and terrors of
the witnesses? Whether he is to be supported in the duress
which prevailed on land and water? and in (what will1>e more
fully discussed hereafter) the improper if not felonious taking
of letters from post-offices ? These questions will be asked after
the testimony is known. The answers will be awful to him*
The consequences of his violent and outrageous conduct must
be awful to hinu He will find himself devested of his military
array and parade with which he used to be surroimdsd at New-
Orleans, to stand here like a common individual. He must then
answer those questions and account for his invasions of the rights
of his fellow citieens. The magnitude of the offence calls for ex-
emplary punishment. I insist on the motion that I have made^
that an attachment do issue ajg;ainst general Wilkinson, for the
various reasons I have stated. He is here himself, and if he
be innocent, he can smswer and purge himself on oath, of the
guilt imputed to him ; and if guilty of abuse of power, let him be
punished in the proper manner«
Mr. Martin said, that he would make a few additional ob-
servations; that he would not enter into a general detail of the
subject theriy but would adduce some additional authorities to
show, that the acts at New-Orleans were illegal, and that the
magistrate had no authority for what he did. If it were pretended
that the act of congress justified it, gentlemen were much mis*
' taken. [He then read Graydan's Digest of the Laws U. SJ] The
33d section of the judicial act, must be that on which they re-
lied; that witnesses examined under the circumstances mere
stated may be cemmitted, but that this law extended only to liie
291
magistrate before whom the arrested person was brought to be
examined; that it says^ ^^ it shall be the duty of the judge of that
district where .the delinquent is imprisoned, to issue a warrant,
&c.'* that Hall did not commit colonel Burr, who was seiaed and
transported more than a thousand miles, was brought hither, ex-
amined here, and recognised to appear this term; that the magis-
trate had no power to examine the witnesses at all, except where
the accused person was brought before him to be examined*
That 2 HqU?8 Pleas of the Crorwn^ p. 51, and 285., and Mac
Nallifj 314. prove that Hall had not this authority. Those au-
thorities state, that where a crime is committed in the county of
Bm and the criminal is arrested in the county of C, the magistrate
before whom he is brought to be examined in the county of C.
has really no original jurisdiction over him, nor can his exami-
nation be read on his trial, though from the necessity of the
case, and to preserve the peace, he has a consequential jurisdic-
tion; and can examine and commit him in order to be sent to the
proper county. But that here, as the party accused was not brought
before HaUy he had no power whatever. He had neither original
nor consequential jurisdiction. Every thing he did at New-Or-
leans, at the request of general Wilkinson, was perfectly iUegal
and extrajudicial 'y but that perhaps it might be said, that state-
necessity would justify what the law did not authorise. On this
subject he referred the court to what was s^d by one of the
most celebrated judicial chamcters of the British jinliciary, lord
Cambden, 3 State Trials^ 320. He referred also to 1 State Trials^
vol. 7. 180.
Mr. Hay. — He is anticipating arguments which we shall ne-
ver use. ^
Mr. Martin quoted 3 State Trials^ 8th article of the im-
peachment of Sir Robert Beckley. 1 voL 709, 710, 711* 716,
717. 2 State Trials^ 306. voL 12. 7 State Trialsy 306.
Mr. Wirt* — I shsdl not trouble you to take notes. The short
question is, whether general Wilkinson be guilty of a contempt,
and ought to be attached? We proposed that the court should
decide at once without any observations on either side; but gen-
tlemen insisted on an argument, and they have had it. Our im-
pressions are, that the evidence is perfecdy clear; and we are
willing to submit the question on the argument already heard*
Mr. Burr's counsel insisted to speak further.
Mr. WxcKHAM.-— All questions are very plain to counsel on
their own side. They may be mistaken. Thoupi it may not be per-
fectly clear on our side; yet I think I can convince the court, that
on an examination of the law^and the facts, the attachment ougtit
to is^e*
292
Mr. Mac Rae,-— I regret that so much of the time of the
court is to be consumed on every point* I confess that my hopes
were, that our offer, to submit the case without discussion, would
have been agreed to ; but as they insist on an argument, they
must be gratified. I hope that I may be permitted to say, that
in the whole course of my short practice, I never read or heard
of a case similar to that now before the court. The motion as
to its foundation is ^^ sui generis !^^ No motiou of a similar
character or nature can be found in the annals pf forensic pro-
ceedings, either in England or in this country. If there be any re-
cord of any such motion, I have been unable to find it, after the
most industrious researches. Mr. Randolph, sensible of this,,
thought proper to read a passage from Zd Hawkins^ to show,
that such cases might occur, for which no precedent could be
found; and that in such cases, the court was to decide ^^ ac*
coPding to the general reason of the law*'*
It was deemed proper to state, as some kind of an apology for the
unmerited Attack on general Wilkinson, that no precedent could
be found to justify this application to the court. Before I shall
reply to the animadversions on his character, I beg leave to ob-
serve, that general Wilkinson is doubly protected by the law of
the land from any danger from this motion, even admitting that
the charges against him are true, which is utterly denied. The
charge against him is, that he has obstructed the administration
of justice in the cause of the prisoner. He is said to have ob-
structed the administration of it, by two distinct acts: First, by
extorting testimony from Knox, on this subject: Secondly, by
forcibly bringing him round from New-Orleans to this city, to give
evidence here. If these charges were both true, they would not
warrant the motion to attach general Wilkinson. I shall by and
Ay, prove them to be untrue. But suppose them, fbr the sake of
argument, to be true. If the offence have been committed at all,
according to the allegations of those who have made this motion,
it has been committed at New-Orleans. For any real offence
committed at New-Orleans, a person is not answerable before
this court; because that place is not within its jurisdiction. I
should deem it an insult to this court to dwell on such a topic, or
to use much argument to prove, that an offence, committed out
of the jurisdiction of this court, cannot be judicially noticed by
it. But suppose the offence to be done within the limits of Vir-
ginia, and of course within the jurisdiction of this court. Gene-
ral Wilkinson, even in that event, would not be answerable in
this form ; because he appears as a witness before the court, in
obedience to its subpoena, and a witness is privileged from arrests:
he cannot be arrested for any act of this description.
In die Ut voL of the Laws of the United States^ p. 74, it is
enacted, " That the laws of the several states, except where the
constitution, treaties dr statutes of the United States, shall othei^
293
wise require or provide, shall be regarded as rules of decision,
in trials at common law, in the courts of the United States, in cases
where they apply." There is no particular direction given in the
laws of the United States, as to the privileges of witnesses; of
course, whenever they come in question, it will be proper to in-
quire in the acts of the legislature of Virginia, how extensive
dieir privileges are. In the revised code of the Lctws of this state^
p, 278, it is enacted, *^ That witnesses shall be privileged from
arrests, in all cases except treason^ felony^ and breaches of the
peace^ during their attendance." The only cases in which a per-
son who is a witness can be arrested, are treason, felony, and
breaches of the peace. Here we might safely rest his defence;
but every step he takes, as a soldier and patriot, he travels on so-
lid ground. I trust that this court will say, that instead of ob-
structing the administration of justice, or deserving the smallest
censure, for what he has done in this case, he has deserved well
of his country, and merits the highest encomium. When he
looks back to these transactions, and the part he acted, as well
towards Knox as to others, he will see no cause to blame him-
self for any thing he has done in public or private ; but will feel
diat pride which conscious innocence never fails to inspire* He
has risked his fortune, his life, and his fame, to save his country
from audacious treason, which but for him, might have ended in
the subversion of the government, and destructiojti of the liber-
ties of his country. I trust, and he expects, that his countiy and
this court will examine and appreciate his conduct, and wiU be-
stow on him that reward of praise, which his praiseworthy
deeds demand.
Sir, Mr. Randolph let out an important secret. The gentle-
man finding that there is no evidence X6 bear them out in their
illiberal attack on the character of general Wilkinson, intimates,
that they will resort for testimony against him, to the very man
who is thus attacked ; that they will call on him to answer their
interrogatories. Is this correct? Has Mr. Randolph's extensive
reading taught him, that, instead of proving general Wilkinson's
guilt, he shall be condemned out of his own mouth?
Here Mr. Wickham interrupted Mr. Mac Rae,and informed
him, that he had misunderstood Mr. Randolph, (who was then
absent), who had taken the course pointed out by the court, and
the chief justice explained it thus: that the attachment must
go, if the testimony were sufficient to prove that it ought to be
granted; and then the defendant must answer interrogatories ;
but that without sufficient evidence, an attachment could not be
granted in any case.
Mr. Mac Ra£»— -I have examined authorities, and under-
stand the regular course; btit I understood Mr. Randolph to
294
have said, that if the evidence amounted only to suspicion, gene«
ral Wilkinson must be called on as a witness against himself,
which would be illegal and a violation of a sacred right* Here
Mr. Mac Rae referred to 1st Dallas^s Reports^ 328, in the case
of the Commonwealth v. Oswald, and read part of the argument
of the counsel, and the opinion of the court, approving thereof;
and contended that the contempt must be proved by disinterested
witnesses; and that this proof must be clear and full; after which
proof, the defendant has the privilege of purging himself from
the imputed oflFence. He then proceeded: The question then is,
has he committed this offence or not? Mr. Randolph says, that
not merely the evidence of Knox proves this contempt, but that
two witnesses, whom we have ourselves improvidendy introduced,
have confirmed it. This conclusion is wholly unsupported by
evidence. Destitute of proof from beginning to end, the gentle-
man has been reduced to the hard and cruel necessity of heaping
conjecture on conjecture, till he has conjectured that this court
will, without a particle of proof, conjecture and grant their mo*
tion. Though I shall be followed by gentlemen of unexampled
talents and excellent memories, I venture to ^rm, that they will
not be able to show, that this motion ought to be granted, or
even to excite doubts. I must pass over some of that gentle-
man's conjectures, without feeling any kind of disrespect for him,
(I am disposed to treat him and every other gendeman to whom
I am opposed with respect). I feel myself compelled to do so,
because they do not appear to me to merit a serious refutation.
I shall, however, nouce a few of them. First, he states a very
important circumstance which he trusts will be conclusive with
the court; that a military man was made a deputy-marshal; and
that this was the result of a concert between judge Hall and
general Wilkinson: that they were secredy plotting together to
make it appear a civil, when in fact, it was a military power.
When Mr. Randolph formed this conjecture, he unfortunately
forgot, that when he and Mr. Graham were/leliberating on the
way of bringing reluctant witnesses to this place, to give testi-
mony in support of the violated laws, he was only doing what
he was bound to perform in duty as an honest man. That he
desifed to compel their attendance by legal means only; that he
consulted Mr. Craham how to proceed; that it was suggested
to him by Mr. Graham, that it would be proper to see judge
Hall, and consult him; and that Mr. Graham, knowing that there
was a misunderstanding between judge Hall and general Wil-
kinson, offered to consult the judge himself, and did so. What
then becomes of the concert which is urged to have taken place
between them? For it is said, that all were to be directed by
general Wilkinson. Did Mr. Randolph recollect this? Or did he
suppose that the court would attend to his statement of seatt
295
plots and contrivances without proof to support it? You find that
the fact is, that there was no concert between thetn; that they
were separated by a previous misunderstanding; and^ that judge
Hall acted upon the application of Mr. Graham. Away then
goes this conjecture; in truth, so all must go; for he has no proof
to support any. But ^^ a military man was made a marshal.''
What of that? Who made him so? You recollect the interroga-
tory put yesterday to Mr. Gaines. ** Would you have accepted of
the deputation unless you knew that it would be agreeable to ge-
neral Wilkinson?" Gaines said three times on oath, that he had no
previous communication with general Wilkinson on the subject;
that he was advised by Mr. Graham. Did not Mr. Graham
say, that he had urged him to accept it; and that it was much
against his inclination that he did accept it? This conjecture also
falls to the ground. It is a poor prop; but like the rest of the props,
weak and useless.
But ^^ captain Gaines acted contrary to law.'' Suppose we ad-
mit, (but which is not admitted), that captain Gaines did act
contrary to law. What is that to general Wilkinson? Is he
answers^le for it? It was thought in days of yore, a hard rule,
when they visited the sins of the fathers upon the children^ to the
third and fourth generation; but it would be still harder to make
general Wilkinson responsible for the supposed misconduct of
Gaines. I have shown that there was no sort of connexion be-
tween them. Gaines has declared there was none. Gentlemen
seem to wish to prove, that Gaines has done what is unlawful;
and then to impute without proof, the whole to general Wilkin-
son. I believe the spirit of the law justified what captain Gaines
did. [Here he read Graydor^s Digest of the laws.] The words
are such as might have fairly induced the judge and captain
Gaines to have acted as they did. The words are extremely
broad, and comprehensive enough to cover this very case. It is
not certain, but it is at least extremely questionable^ whether
the law did not authorise what they did. But whether it did or
not, is not material. General Wilkinson and captain Gaines are
two distinct men; and general Wilkinson is not bound to answer
for the oflfences or errors of another man.
Mr. Randolph then skips to judge Hall; and his judicial out-
rage^ is repeatedly charged to general Wilkinson. Why, sir,
there was a misunderstanding between them. The judge acted
at the instance of Mr. Graham, and not at that of general Wil-
kinson, who therefore cannot be answerable for it. After prov-
ing this error or judicial outrage, as it is called, of the judge,
they ought to show a connexion between them, to have existed
before. But, sir, Mr. Randolph discovers a very important se-
cret. He says, that the act of congress compels the removal of
the party accused and the removal of tha witnesses together;
296
that in giving power to the judge to remove the witnesses, it re«
quires him at the same time, to remove the party accused that
both must be removed together. But if the party accused had
been removed before, ought not the witnesses to be removed
afterwards? Because it does not come within the letter of the
law, would he not have a right to send on the witnesses? I
doubt whether that would be a correct interpretation of the act
of congress. It cannot be reasonably supposed, that as the remo-
val of the witnesses was as much intended as that of the party
accused; that if • the accused were removed first, the witnesses
should not be removed afterwards. I should suppose, that the
judge might remove both, at diiferent times; that if he sent on
the accused before, (from necessity or convenience) he might
send on the witnesses afterwards. But whether the judge com-
mitted an outrage or not, is unimportant to general Wilkinson.
He was not bound to attend on every step which judge Hall had
taken; and if the judge may send on the witnesses without the
party accused, it is to.be intended, that he has fully executed
the law, until the contrary appear in a cause of his own, in
which he is a party, called on to account for his conduct, and in
which he shall have an opportunity to vindicate himself. But
whether his construction of the law be correct or not, is im»
material. Wilkinson is not amenable to this or any court, for any
act of judge Hall, or any other officer.
But Mr. Randolph has discovered a great secret, which no
body else has discovered; which the most astute men in the
commonwealth could not find out: ^ That it was a military or-
der which was given by Gaines to Serjeant Dunbaugh, to re-
move Knox from gaol to the vessel; and this is thought a proof
that the whole was contrived by general Wilkinson; and that
the order emanated from him. This is in the very teeth of the
evidence. Mr. Gaines being called on to say, whether he had
not given it as a military order to Dunbaugh, answered expli^
citly in the negative; that he had not given it in that capacity. I
saw the gendemen looking attentively at the order; and I under-
stood their motive to be, to discover whether Gaines had signed
it as captain; but when this order is seen, there is no signature
of " captairC* to it. He merely annexed his own name " Gaines;^*
which proves that he was not acting in a military character. It
is Very probable that if he had been acting in that character, he
would have signed his military title. It is customary, I believe,
to sign military orders, with the title or rank of the officers who
give them; and an officer of his rank would have signed the or-
der as " captainJ*^ If there were any doubt before, that doubt
could no longer exist, after captain Gaines has declared before
the court, not only that he did not give a military order, but that
he never did aet under general WUkinson, in that whole trans-
2&7
action. He waa called on repeatedly to say, whether he had not
given the order to Dunbaugh as his seijeant, and in his military
character; and he as often denied that he had commanded him as
Serjeant, (though he understood him to be a Serjeant) .but because
he had obtained his promise before to execute the order; and if
he had' not, he would have got some other person to do it. Sir, if
Gaines had been acting as a captain, and signing as a militaxy
commander, would he have proceeded to ask a favour as he did?
Would a gentleman who understood his duty, have gone to him
and asked him, *' JVill you be pleased to do sof^^ No, sir, he would
have enjoined it as his duty: and his not doing so, proves that he
acted in a civil capacity; and this disproves diis conjecture also.
But general Wilkinson is a great criminal, because he con«
suited the attorney general of the district The outcry which had
been raised against this valuable citizen and soldier, gave him
sufficient warning, in order to avoid reproach, never to do an
act of this nature, but by the advice of persons learned in the
law. Of course, when general Wilkinson, instead of giving ad-
Tice himself, mentioned to those who were engaged to act for
the public, that they should advise with the attorney general
and another lawyer how to act; it showed a disposition to have
nothing done but what the law warranted. Why are their acts
charged against him? Is not this enough to show, that the charge
of violence and oppression is wholly unfounded? If such con-
duct as this be censured, I should suppose that it would be
better to be silent, than to give judicious and friendly advice.
As Wilkinson was not himself a lawyer, he told those gentle-
men, *^ Consult the attorney general, and other gentlemen learned
in the law, who will advise you how to act." Is it indeed cri-
minal to aid the government in a case where the goveminent
and all America are interested ; and, instead of giving a&vice
to the persons called upon to act for the public, to refer them to
the best source of legal information, the attorney general, and
another lawyer? I never expected to hear such an objection
Urged against general Wilkinson. This part of his conduct is
strong and conclusive to show, that he* was determined that the
laws of his coimtry should be the rule of his conduct. But it is
not to be wondered at, that sinking without evidence or law to
support them, they should catch at this straw; for there is nothing
but assertion and suspicion: all conjecture, and no proof. •
But my friend Mr. Randolph, forgetting that he was address*
ing this honourable court, and feeling as he does sometimes,
when he addresses gendemen ill informed about the laws of
their country, endeavours to excite sympathy, and tells you without
proving it, that general Wilkinson direw him (Knox) into a ship;
that he was torn from his family and friends, and trauj^ported
hither. But he forgets the facts. What family had he in New-
VoL. I. 2 P
2d8
Orleans, and how long iiad he been tliere ? He stated, that he
went with colonel Tyler down the river. [Here Mr. Mac Rae
repeated the substance of Mr. Knox's own testimony, relauveto
his going down the river to New-Orleans and staying there.]
You will observe, sir, that I am od|y stating what he himself said
yesterday. He was dragged away xrom his country, and trans-
ported. What country ? He only staid tw6 short moniiis at New*
Orleans. But, alas! alas! He has suffered all these dreadful O
lamities. This is the melancholy statement made to help'lhem
out; but all without proof. We fear not its etffecta* But, sir, ge*
neral Wilkinson is a curious sort of a man. He sonoLetimes uses
all the blandishments of a courtier; sometimes he is the most
cruel savage that ever existed. Sometimes be talks of free-ma-
sonry'; and all by fits and starts. By fits he is very kind; and by
fits very cruel. But what evidence is there to prove all this i
Has Knox said that general Wilkinson treated him cruelly}
Does Mr. Graham say so? No, sir. Was he maltreated on shore
or pn board ? The ship's provisions were very good; and he was
treated on board like other people. Has captain Gaines sakl
that he treated him very cruelly ? Where did Mr. Rapdolph fiivd
this evidence ? I hope he misunderstood the witnesses. Your
honours, who have listened patiently to the testimony, know that
these are only bold coitjectures. Well, then, after going through
all these conjectures, and refuting them, we come to another;
that Wilkinson put him on board, transported him, and brougitf
him to Richmond; and this conjecture is equally destitute of
proof. These acts ought to be proved, before gentieioen indulge
in this freedom of speaking to the court, of violence, oppression,
and tyranny. I do not wish to tire the court by a recapitulation
of all the evidence; but I will briefly repeat the principal facta,
to show, that general Wilkinson had no agency in them. How was
Knox first taken in custody? Was it by general Wilkinson?. No:
by the sheriff at New-Orleans. Before whom was he taken i
Before judge Hallj a man, who, we are told, was at variance
with him. By whom was he committed ? By a warrant from the
same judge HaH, executed by captain Gaines, in his ciyil
capacity. Was this done by die direction of general Wilkinson i
There is no evidence whatever of tlfis fact. By whose orders was
he carried on board the vessel ? By the same deputy-m^irshal's
request to seijeant Dunbaug^. By whom was he brought toNor-
•folk ? By captain Gaines, who has the honesty to confess ^t he
did it. Is it sense, or law, to attach general Wilkinson for an act
which another confesses he has done, without having consulted
general Wilkinson on the subject?
But it is a most important object to affect general Wilkinson;
because he is summoned as a witness against the prisoner. It
has been often said by the counsel of the accused, that he is a
299
most important witaess; and if die course pursued by those gen-
demen can justiiy conjectures on ' our part^ we may perceive
that thetf think him an all important witness^ for there is no step
taken without some obloquy cast on d)is respectable man. It was
rumoured ail over this town, that he would never dare to come
to it; that he would tremble to appear before Aaron Burr. This
A>ldier and patriot has shown, that he can confront Aaron Burr
or any other man. The report before, and the proceedings had
against him since, his arrival, have but one object; and that is, to
excite suspicions against his character. From the delay in his
coming, even honest men began to think, that perhaps there was
m>me truth in what was said against him. But now, that he has
come, and diat this cloud of prejudice has been dissipated, another
must be conjured up. Not content with attacking him for his
own acts, they attack him for the acts of others, in which he had'
no agency or concern* Does not the court see the object of at-
tacking general Wilkinson ? Has he done any thing to obstruct
the administration of justice ? Does the court believe that the
gentlemen themselves believe, that he has done any act to ob-
struct the administration of justice ? His great crime, forsooth,
is, that he did presume to advise with proper and well in-
formed persons, in order to make the law his guide^ in endea-
vouring to procure material evidence for his country, in a case
deeply aifecting its interest; and for this high sin, he is charged
with obstructing the administration of justice. Whether he have
done so or not, the court will decide* I am confident they will
decide fairly and correctly.
The court is entitled to admiration for having so very pa-
tiently heso^ all the arguments which have been delivered. It is
right to hear every thing that can be said on both sides of every
question brought before the court. I wish it to be known, let the
event be what it may, that thene never was a case, in which there
was less of persecution, than this case against Aaron Burr. He
has had privileges that never were extended to any other man.
I rejoice that he has had those privileges; and we wish it to be
known, that it is our desire, that he may continue to have the
benefit of all the privileges to which he can possibly be entitled;
because it will completely repel the unjust imputation of perse-
cution.
Sir, shall I add any thing more? Is it necessary? But let me
ask, why has the prisoner made this motion ? Has he taken out
a subpcena, that general Wilkinson or any other person has pre-
vented from being served? Has any witness summoned for him,
been prevented from attending ? Justice has been strangely ob-
structed in this case ; not by stopping witnesses, but by bringing
hither a man who has been with Aaron Burr, and appeared to
be a material witness. There are many motives for believing,
that this man was an important witness. The court will recollect
300
what he has already said. He was with the accused, and was, from
his situation, one of those to whom the accused might have
communicated sotne of his projects* It has been said, that there
was no evidence of Knox's materiality, though general Wilkinson
made an affidavit to that effect. The information given by Knpx
himself, and the circumstances of the case, justified that affidavit;
and in my conscience I believe him to be material, and that
when on his oath hereafter, on the trial, he will give material tes-
timony, if he disclose all he knows.
Mr. Randolph may move for attachments to confine all the
people in gaol, in defence of Aaron Burr, while he walks the
streets unmolested. I do not know how many motions are to be
made, if this motion succeed; and they have already apprised
us, that they had several others to make. The next motion, I sup-
pose will be against Mr. Perkins, for taking up Aaron Burr.
Even for such a motion, there would be more ground than for
that now before the court.
I hope, sir, that for the length of time that I have trespassed
on the patience of the court, I may be excused; and that I may
be also excused, if, by any inadvertent expression, I have wound-
ed the feelings of any gentleman; which was far from being my
intention. I merely obeyed the impulse of duty, and I cheeiiully
submit the case to the court*
Mr. Benjamin Botts then addressed the court as follows;
The chargCy on which our motion is founded, is, that iUeg<d
means, invading the privilege of witnesses, tending to the corrupt
tion of evidence, and materially to affect the justice and digntttf
of the court, in the present prosecution, have been practised by
james Wilkinson, within the jurisdiction of this court, so as t9
subject him to process of contempt.
The first description of these illegal means, consisted in rifling
the post-offices, and the seizure of private papers, upon searches,
some of which are attempted to be used against colonel Burr;
and others are believed to have deprived him of the means of
preparing for hiA defence, through the mail. These acts of oppres-
sion would, in England, have subjected any man to the heaviest
pains and penalties of the law. In the time of lord Camden, that
great suppotter of the rights of the subject against the assump-
tions of power, upoa solemn argument, declared, that such sei-
zures violated the first principles of social union, and that the law
of England admitted no pretext of state-necessity, to justify acts
so subversive of the dearest rights of the people. He enumerated
the multiplied abuses to which it had led, and clearly proved,
that the power was utterly incompatible with the exemption of
the accused from giving evidence against himself, and with thote
privileges which Magna Charta had secured. The constitution
of the United States, provides against searches upon warrants;
301
but the pKsentcase reaches beyond the evilto which the conTention
looked; for Mr. Wilkinson thought the form of ^ warrant unne-
cessary. The act of congress infficts high pains and penalties for
taking or breaking a letter, after it has been put into the post-
office* The postmasters, and all other agents in the establishment,
are subject to punishment for violating the mail; no exception
is made in cases of insurrection,. rebellion, or invasion; though
assuredly these events must have been within the view of the na-
tional legislature^ ^ possible ones* Private property and com-
merce, the innocent and the guilty, will be at the mercy of prin-
cipal and deputy plunderers, as long as the practice obtains. I
never can reflect on this subject, without feeling strong emotions.
I cannot forbear again to remind you of the part acted by
the prosecutor when I first introduced this subject to the courts
the other day. He complained that I should insinuate the per-
petration of high crimes like these, without proof. His honest
bosom seemed to swell with indignation at the injustice I was
doing. I felt the impropriety of making such heavy charges,
without the exhibition of testimony, and called for proof. In-
stantly the scene was changed. The man was lost in the lawyer.
What a minute before was a crime, then became a subject of
eulogy. The second class of illegal means practised by general
Wilkm8on,we contend, consisted in attempts to extort said invei-
gh p^rti?! testimony against colonel Burr.
There are two characters of craft in this branch of his mis-
deeds. The one acts upon fear in all cases; the other generally
on hope* We see this man in all his power and splendor, invit-
ing an obscure stranger ^ his quarters; he proposes several
questions. Knox shows reluctance in answering them; he then
tenders Knox his service, his influence, patronage, and finally,
one hundred or one hundred and fifty dollars. Finding all these
unavailing, he resorts to the influente of terrors. He is interro-
gated by Hall, who threatens imprisonment and transportation,
in case of disobediencie. A list of printed interrogatories is exhi-
bited, and Knox is required to submit to examination on them*
This evil and corrupting practice of afiidavita is but little un-
derstood. My friend Mr. Wirt sUgmatized them justly, the other
day, as tending to the worst of purposes, always containing the
language and the colouring of a biassed draftsman, and never tell-
ing the whole truth. When a witness is examined ex parte by
counsel, every thing that makes for his employer is carefully culled
out and committed to writing, without the dross of what maybe for
his adversary's advantage. If a witness should know much for the
accused, and nothing for the government, he would be passed by
of course. These affidavits are sent to the attorney. He is armed
now with a great bundle of them. So many daggers put to the
bosoms of the witnesses, as they successively appear, could not
dD3
be more huraBpiciouB (d tradiw Skotdd « tritne^to crtfM-eitaRni-
iied,to give a differentcomplexioncoafactcbiitaiiiedin his affidavit^
the terrifying writing needs only to be. held up at the bar, nAd the
naked exhibition of such spectacle eloipiendy prbcfeniDs his dSeS**
tiny, if he vary in the least fr(5m that fatal paper. He is toM,
dfid your ears shall come off^ The important rfght of cross-exa-
mination is useless in such a case. To ^ confronted by lihe ac-
cused, b nothing, when the witness » confronted by his affi*
davit.
The odier means practised by genend Wiflcinson appertain^
to the privilege of the witness, and the liberty of the citizen*
This work of unprovoked t3n^aniiy, began (» a Sunday. Under
colour of law, Knox was imprisoned and transpcHted for the
drimes of having eyes to see, and ears to hear. He was not per-
mitted to obtain from his lodgings the clothing necessary to
cleanliness and health. The sagacious and patriotic judge had
as much reason to drag Wilkinson from- the pinnacle off his great-
ness and pomposity, and to commit and transport him after he
had hung back, until ^ his friends trembled for his feme," as Mr.
Knox.
The habeas corpus sict in England, was produced by the un-
lawful transportation of offenders for triaL That measure has been
marked by all the great nsieasures of the resisting colonies and of
the old congress, as one of the most usual and most grievous con.
comitants of arbitrary authority. The legislatureof Massachusetts,
in 1769, were excited to, whs* were said in the mother country to
be, seditious resolutions, against the use of such an expedient by
parliamentary authority. The articles of confederation; the vari-
ous addresses of congress to the people of England, Ireland,
and to the Canadians; the petitions to the throne, and the re-
monstrances to the parliament; the* declaration of independence,
and the preamble to the constitution of Virginia; all enumerated
among the acts of royal misrule, justifying revolt, the oppressive
one of transporting ojjcnders ror trial* The nation waded
through bk>od and slaughter, to rescue us from this power ; but
now it is exercised as an act of course, not indeed in all cases,
upon a criminal by legislative authority, but upon a witness at
the pleasure of a military chief, whose delinquency in attendance
was real, while Knox^s was imaginary.
But why all this complaint about poor Knox i He is nothing
but a poverty-stricken,obscure individual. The vague and whimsi-
cal phantasy of equality, that kindled enthusiasm in former times,
is now too ridiculous for our cares. The abuses of Knox are of
no moment. The sun rises and sets as usual. General Wilkin-
son takes his coitee in the morning, and reposes himself on hi^
sofa in the evening. Wc are happy and content at our homes,
SOS
and dungt in f;eaenJ gooo as belbre. It is a mortifying tho^ght^
that the enemies of our happy form of government, may aow
triumph in the acqiueacent surrender of the rights, which it was
instituted to secure. They may boast that liberty has been
Booui;ged with relendess fury and perseverance; that the revc^u-
ticn has been shorn of the brightest of its beams, with the hear*
liest i^iplauses of those, in whose presence the oflPences of a ty»
lant have been presented for punisAm^ayu I feel more pain and
solicitude on this subject, as a friend to the present administni/-
tion, than I do as counsel for colonel Burr. I could humble my"
self to beg of the gentlemen in the prosecution, to save the g^ory
of our executive from the tarnish of pr^e and impunity to ge^
neral Wilkinson. If they will not grant my prayer, I must ad»
dress it to you, sir. I hope and believe, that the chief magistrate
of our country is a stranger to what has passed and is passing
here. His generous manly soul would surely disdain all the petty*
larceny means which have been used to kidnap testimony, betray
confidence, and induce perjuries; it would equally revolt at the
wanton violation of the most sacred of our laws and chartered
rights. Such a system cannot characterize the noblest administra-
tion that ever existed.
Let but this daring act pass unpunished, and we cease to be
what we were. If a citizen could be imprisoned for three days,
he may for three years. If he could be transported to Rich-
mond, he may to India. If one man can be so imprisoned and
transported, so may a thousand.
A witiiess was asked, whether Knox had not his liberty on
the voyage i Yes, was the answer. How precious the boon! He
was perfectly at liberty to jump into the sea whenever he
pleased !
The attempt to make Mr. Gaines the scape-goat of this confe-
deracy (ne deserves a better fate) is only equalled by the atrocity
of the confederacy itself.
We find that Mr. Wilkinson was inquisitor and transporter
general, without scruple or disguise, until he was about to come
to the United States. To borrow an idea from Mr. Mac Rae, the
noise that had been made about his misdeeds, had taught him
cunning. In the courts of New-Orleaos, he could make the tri*
bunal bow and tremble, by a parade of magnificent nonsense. To
avoid his own humiliation in a freer climate, this farce, in which
a mock«judge and a military-civiUsea>marshal, without oath,
bond or compensation, were to perform their parts, was devised.
It is too clear that Wilkinson was the wire-worker behind the
curtain, by which the wicked catering and gambols of mimic
magistracy were played* I pity the condition of a subordinate
military officer bound to passive obedience. Mr. Gaines was a
worthy, duped young man* I Mras ftnd of the ho^et^t aK^eanmce
304
he made. The candour of his testimony made it more a subject
of grief and indignation, that the contrivance should be to put
the whole responsibility on him. The introduction of the lawyer,
to complicate the disguise, is another feature in die picture. I
hope, for the honour of the profession, that there is some mistake
as to the part he acted. Wilkinson is to be discerned through
every part of the cobweb. He makes the affidavit; he sets the
lawyer to work ; his military officer becomes a deputy of the
marshal to leave his situation without the leave of the commander
in chief; a serjeant is the deputy of that deputy; the captain
on board is under the direction of the general ; to his care cap-
tain Gaines commits Knox through the serjeant; the military
purse yields the money given to the witness; the vessel taken up
by Wilkinson conveys him, and Mr. Gaines owns, that if the
general on the passage had directed Knox to be put in irons, the
order would have been instantly obeyed. What, a deputy mar-
shal, as such^ to obey the orders of a military commander ! The
insidious attempt at Hampton Roads, first involuntarily made by
Mr. Gaines, and afterwards repeated by general Wilkinson, to se-
duce an acknowledgn>ent, that the civil authority had transport-
ed the wimess, may be connected with the other proofs. But the
demand, by general Wilkinson of Knox's parol of honour to comie
to Richmond as the condition of his enlargement, would be de-
cisive on the present question, if it admitted of doubt*
But you are gravely asked by Mr. Mac Rae to pronounce,
that general Wilkinson deserves well of his country for all these
his patriotic ^cts. What, in other times, and in other places,
would subject a man to be suspended between the heavens and
the earth, from whence his spirit should flee for ever, now calls
forth the highest panegyric. I heard a compliment like the pre-
sent from the counsel, when general Wilkinson was here on yes-
terday. I looked upon him and witnessed a smile, when the oc-
casion was better adapted to a groan. It was a smile of the
ghastly kind. It seemed to be of that convulsive sort which distorts
the face of the dying. Perhaps general Wilkinson took a retro-
spect and felt the compliment to be a reproach. Thus prejudice
leads gentlemen to praise acts of atrocity. This subject has been
treated with singular levity, by the gentlemen in the prosecu-
tion. They have not ventured to justify the commitment of
Knox. The farthest that Mr. Mac Rae ventured, was to risk the
supposition, that the act of congress was of doubtful application,
and might possibly apply. He in this tacitly yields, that there is no
justifying the conduct pursued in the commitment. The gende-
man who spoke last, reminds us, that ^^ the sins of the fathers
ought not to be visited on the children." I say then, that the
sins of the principals ought not to be visited on the subalterns.'
Mr. Mac Rae concludes with reminding the court, that colo-
305
ncl Burr had enjoyed privileges that no one under prosecution
before him had ever enjoyed. He said too, that you were per-
fectly right to hear us on this question. I submit to him whe-
ther the first remark were just or respectful to the court? In
the latter point he differs from another gentleman on the same
side, who has struggled much to prevent us from address-
ing you.
It only now remains for me to prove that your jurisdiction
is commensurate with our purpose. The 14th sect, of the ju-
dicial act authorises the court: Jto issue all writs not specially
authorised, for the more perfect exercise of the powers vested
in it. The power of compelling attendance and securing privi-
lege, cannot be exercised in perfection without a ^ower of at-
taching for contempts in the one case or the other. The dis-^
trict courts of Virginia constantly exercise this right of over-
looking the purity of the streams of their justice, through all its
branchings, without the district as well as within. The right of
attachment overreaching the limits of the state, must result as
incidental to the emanation of the subpoena to other states.
But the rioting of lawless power continued from New-Orleans
to Richmond. When it entered on the seas it was within the
regular limits of youf authority.
In a view to the privilege of the witness this motion must
be sustained, if we be deceived in all our other grounds.
What means the privilege, unless it be, that he shall have pro-
tection from abuse ? Is it to assist in this privilege to imprison '
him? Is the privilege to exclude him from all his rights, and
put him at the mercy of land and sea gaolers ? ^ thfs be the en-
viable advantage of privilege, general Wilkinson will deserve
well of his country for assisting to maintain it.
Knox was summoned before any of this violence was used
towards him. From the moment that he was summoned, he was
under your protection. The naked service of a summons must
have proved, that your powers reached not beyond a summons
until there were default. It was absprd to suppose, that what
this court could not do for itself, a magistrate, no way con-
nected with it, could unasked and officiously do for it.
I refer the court, without comments, to Supplement to Viner^s
Abridgment^ 225. and 3 Hccwkins^ 275, on the subject of con-
tempts of the court.
When Mr. Botts was speaking, [being about two o'clock]
the grand jury entered, and Mr. Randolph, the foreman adress-
ed the court; and stated, that they had agreed upon several in-
dictments ; which he handed in at the clerk's table. The clerk
read the endorsements upon them in the following terms:
Vol. I. 2 Q
306
An indictment against Aaron Burr for treason-^^^ A true
biU."
An indictment against Aaron Burr for a misdemeanor —
'* A true biU."
An indictment against Herman Blannerhasset for treason—
" A true bill-"
An indictment against Herman Blannerhasset for a misde*
meanor — " A true bill."
Mr. Randolph then continued: May it please the court.
Although the grand jury have returned these .bills; they have
still other subjects for their consideration, and have adjourned
themselves to meet to-morrow at ten o'clock.
After Mr. Botts concluded his argument, Mr. Burr ad-
dressed the court and observed, that as bills had been found
against him, it was probable, the public prosecutor would move
for his commitment; he would, however, suggest two ideas for
the consideration of the court: the one was, that it was within
their discretion to bail in certain cases, even when the punish-
ment 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. Hat moved for the commitment of Aaron Burr. He
stated, that if the court had the power to bail, by the 33d sect*
of the judicial act, it was only to be exercised according to
their sound discretion; and that the prisoner was not to demand
bail as matter of right, because the court was authorised to
grant it, but by his making out an adequate case, and showing
that he was entitled to it. He quoted 4 Blackstone^s Commen-'
tarits^ p. 298. to prove that this discretion ought to be delibe-
rately and cautiously exercised. .
Mt. Martin. — The counsel for the prosecution have then
admitted the right of the court to give bad, according to its dis-
cretion.
Mr. Mac Rae did not understand from the judicial act, that
the discretion was to be exercised at this stage of the business,
but only at the time of making the arrest.
Mr. Martin. — I can hardly suppose that this court has less
power than the court of king's bench in England, which cer-
tainly possesses this authority, according to 2 Hale ^ p. 129.. 134.
Mr. Wirt was extremely solicitous to do any thing, com-
patible with his duties, which might soften the situation of the
prisoner, and if the court had the discretion, he did not wish
them to restrict it; but he did not perceive the analogy which
had been drawn between this court and the court of king's
r
307
jeh. The powers of that court grew out of the common law
, England^ whereas the powers of this court were defined bj
A Statute of our country. What says the 33d section of the ju-
dicial act? ^ Upon all arrests in criminal cases, bail shall be adr
mitted; except where the punishment may be death, in which
case it shall not be admitted but by the supreme or a circuit
court, or by a justice of the supreme court, or a judge of a dis-
trict court, who shall exercise their discretion therem, regard-
ing the nature and circumstances of the offence, and of the evi-
dence and the usages of law.*' Is not this inquiry by the court
stopped, said Mr. Wirt; is not the evidence and testimony
stopped, when it is now locked up by the finding of the grand
jury? Would it be right for this court to go into all the merits
of the case, which this clause evidently requires, before the
court can exercise this discretion? Will the court go into the
investigation of the evidence, and thus throw itself into colli-
^on with the grand jury? It is obvious from these considera-
tions, as well as from the words of the law, that such a discre-
tion does not exist at this stage of the business, but only at the
time of arrest.
Mr. WicKHAM. — The counsel for the United States express
their readiness to accommodate colonel Burr, yet act other-
wise. If the court of king's bench possess this authority,
shall it be contended that this court is without it? Shall it be
said, that the liberties of the people of this country are not as
well secured as those of Great Britain? that a British subject
has greater privileges than an American citizen? It is said,
however, that this court grows not out of the common law, but
out of our statutes; but will it be said, that, when this court has
once been constituted, it does not proceed according to the es-
tablished jurisprudence ; that is, the common law ? There can be
no question but that a state district court can bail, even in capi-
tal cases. Will this court, it is asked, place itself in opposition
to the grand jury? No, sir, it will not; and Mr. Wirt certainly
forgets that the court is to hear both sides of the evidence;
whereas, the grand jury heard one side only, and indeed a part
only of that side ; for had the United States' attorney sent up all
the witnesses, whose names appear at the foot of the indictment,
very different would have been the result of their inquiries.
The ground which we take is this: that the grand jury have
found their bill upon the testimony of a perjured witness; and
if the court were to bail colonel Burr, would ^t not be justly in-
ferred, that they had not set themselves up in opposition to the
grand jury, but that they had been furnished with lights, which
had been denied to that jury ? ^^Upon arrests," signifies in all
cases, where there has been an arrest. The case in Dallas
comes fully up to the point.
308
Mr. BoTTfl satd) that ii the common law did Hot enable
the court to bail, it did not enable them toxommit.
Chief Justice.— Mr, Martin, have you any precedent,
vhere a court has bailed for treason, after the finding of a
grand jury, on either of those grounds ; that the testimony laid
before the grand jury had been impeached for perjury, or that
other testimony had been laid before the court, wlych had not
b^en in the possession of the grand jury?
Mr. Martin said, that he had not anticipated this case, and
had not, therefore, prepared his authorities ; but he had no
doubt, that such existed. ^
Mr. Burr.— Two distinct questions have been blended in
this discussion, which ought to have been kept separate: First,
Whether this court have the right to bail according to its dis-
cretion ; and secondly. Whether it were expedient to exercise
its right in the present instance? If the court have no discre«»
tion, it is unnecessary to produce evidence. That question
ought, therefore, to be previously settled.
Mr." Hay observed, that when he first addressed the court,
he was. of opinion, that the circuit court had this power, hav-
ing been misled by a very transient conversation with the chief
justice, on the first examination of Mr. Burr; that he had how-
ever, considered this subject more maturely, and the more he
thought of it, the more he was convinced, that Aaron Burr was
not privileged to demand bail. That he would feel no regret if
the court could bail, but he thought they could not; that it was
incumbent on the prisoner to show the law which authorised
his being bailed ; tnat the question was to be decided by the
common law, by the acts of congress, or by the acts of Virginia*
It could not derive the authority from the commonlaw, because
this court is of a recent origin, deriving its power not only
from a late law, but a lately created government; and it has no
authority but from an established law. Does then, (said Mr.
Hay,) the law which established this courts expressly convey
this power? [Here he read the 33d section of the judicial act.J
Now, how are the court to attend to the nature and circum-
stai[ices o^the case and of the evidence? Will they require all
the evidence to be before them, which has just occupied the
attention of the grand jury for seven or eight days? Mr. Wirt's
argument on this point is conclusive. The law too is ap*
plicable to a prisoner only at the time of his arrest^ and not of
an indictment being found against him; in the last case, the
situation of the accused becomes still mor^ precarious; the
danger which he apprehends, comes nearer and nearer, and the
temptation to violate his recognisance, becomes much greater
than at the earlier steps of the prosecution. [Mr. Hay then rc»
309
ferred to the case of Bedinger v. the Commonwealth of Vir*
f;inia, decided by the court of appeals, where that court re^^
used to review the errors of a district court, in criminal cases,
because no act of assembly gave them the power.]
No man will contend, that the common law is in force in
the courts of the United States. As soon might you assert the
validity of the laws of the Cape of Good Hope or of Turkey.
It was therefore ridiculous to compare the organization of the
court of king's bench with that of the present court. As to the
complaint of Mr. Wickham, that by this doctrine an American
citizen would stand on worse ground than a British subject^
it is unavailing. Perhaps courts of justice would even be
more disposed to bail for treason under such a government as
that of Great Britain, than under our own, where the power of
the government falls so rarely and so lightly upon the people.
Were even the common law in force in the United States, it
would have no relatioirto the organization of our courts.
The power of bailing is neither derived from the common
law, nor the act of congress ; nor is it deducible from the laws
of Virginia. In cases Meeting life, the prisoner is not entitled
to bail by our laws. Sev. Code^ 63. 83. 411. In the two former
pages, two judges of the general court have the power; but
it cannot be inferred that this court therefore has it.
Mr. Wirt. — I have stated, that the powers of the court of
king's bench are not applicable to this case, because, that court
is the creature of the common law, whose powers are of an-
cient date, and have been growing up from time to time;
whereas this court is recent, and its powers fixed and defined
by law. There is another great difference. The powers of the
court of^ king's bench take their origin in a fiction. It is sup-
posed to be held coram ipso rege! In its origin, the king him-
self sat there, and he is still supposed to sit. Treason was a
crime against his dignity; he might bail for it; and the same
power belongs to the judges who represent his person. But
how IS it with us ? Treason is an offence against the people of
this country. And have the people ever sat here for the ad-
ministration of justice? Are the judges of this court invest-
ed with the powers of the people? But on the supposition
that this fiction does exist, is not the power of bailing removed
by a positive law ? Does not the act of congress expressly take
it from the court? By the laws of Virginia, in cases of offences
punishable in life and limb, bail is only admitted where there is
but a light suspicion of guilt. If some of the witnesses be per-
jured, that does not prove that the indictment is found on their
evidence. There has never been an instance of bailing after a
true bill found. The act of congress enables the court to bail
only on arrests, after examination of the circumstances, the
.310
evidence nod liiw of the case. Can you bail therefore on a par-
tial view of the evidence?
Mr. WiCKHAM. — Two indictments have been found for
treason; one against colonel Burr, and the other against Blan-
nerhasset. If the latter were now to come into court, he would
be bailed, according to Mr. Wirt's distinction, because not
previously arrested; whereas colonel Burr would be devested
of the very same privilege, though he was indicted for the very
same crime*
Mr* Hat said, that the judges of the general court in Vir-
ginia have a copy of the record, with evidence included, before
them, to enable them to judge whether they ought to bail in cer-
tain cases; but that this court, if they had the power, could not
let to bail without examining all the witnesses*
Mr* Randolph expatiated on this subject at considerable
length, and with great ingenuit)'* He particularly contended, that
the power of admitting to bail was incident to every court; that
the power was implied in the term ^^ court?^ That it was as abso-
lutely necessary for the happiness of the people, that courts
should possess this power, as it was, that they should have the
right of committing persons accused, for their safe keeping, in
order to be regularly tried* That the common law must be re-
ceived to a certain extent; that every judge and court had the
right to bail persons indicted before them; and that it would be
an extreme hardship to confine in a dungeon, a person who could
clearly prove that he was not guilty of the offence charged against
him. That the counsel for the prosecution occasioned this lengthy
discussion, by moving to commit colonel Burr; and that time was
of no consequence compared to liberty.
Mr. Martin protested against the ingenious fiction of Mr*
Wirt, as he called it* He challenged him to name any king, from
the days of king Arthur to the present time, who either did, or
would, sit in the court of king's b^nch* That the act of congress
only defined the powers of individual magistrates out of court,
but took away no power from them as a court. That bailing was
incident to commitment, and coextensive with the jurisdiction
of the court over crimes*
After a considerable desultory discussion on this point, the
Chief Justice declared, that the act of congress, in express
terms, enabled the court to bail a prisoner arrested for treason*
That there was no distinction between treason and other criminal
cases, as to the power to bail upon hrrests; but, that an arrest
might be after a finding by a grand jury; in which case, the
finding of the grand jury would be the evidence on which the
court would have to judge whether the party arrested ought to
311
be bailed. That they were to exercise their discretion ^ accord-
ing tb the nature anddrcumatancea of ihe offence^ and of the ef>t*
dence and usages of law*'* That ^ usages of law'' were to be found
in the common law, and the practice of courts; but that he
doubted extremely, whether the court had the rig^t to bail any
person, after an indictment for treason had been found against
him by a grand jury; especially in a case like the present, where
the government was ready with its testimony, and there was no
extraordinary circumstance, (as an alibi clearly proved) to repel
the effect of the finding of the jury, and that he wished autho*
laities produced to satisfy the court that it had the power.
Mr. Burr said, that if the court thought it had the power
to bail in any case after a bill found, it would be then necessary to
show that it ought to exercise its discretion in this instance.
That tKe finding of the jury was founded on the testimony of a
perjured "witntss. That general Tupper would prove, that there
had been no such resistance to his authority as bad been stated
by that witness; and that though this circumstance had been
mentioned to the prosecutor by general Tupper, he had not
been sent up to the grand jury.
Mr. Mac Rae. — General Tupper has made no such com*
munication to me.
Mr. Hay. — Though I had a conversation with general Tup-
Eer, I do not exactly recollect what it was. The truth is, that I
ave carefully avoided conversing with the witnesses of the Uni-
ted States, (except general Wilkinson). General Tupper made
application to me for permission to go away; but I said, that I
would, for no consideration, submit to the imputation of consent-
ing to the departure of any of the witnesses. He was not sent
up to the grand jury, because he was not considered as a mate--
rial witness.
Mr. Wirt. — He has made no such communication to me;
and I take it upon me to assert, that the resistance to general
Tupper was not the treason, on which the indictment has been
found*
Mr. WicKHAM. — Suppose a man were indicted for murder,
committed at sope distance from this city, and a grand juty had
found a true bill against him; but it could be proved, by every man
in the city,that he was at the moment when the offence was said to
have been committed, walking in the streets: would such a find-
ing by the grand jury preclude a court from bailing him? The
constructive murder in that case is of the same stamp as the
constructive treason of colonel Burr in this case, who is indicted
for an act said to be done in,Blannerhasset's island, where he was
said to be present, although he was at a considerable distance
from the place.
312
Mr. Wirt.— -'Why should evideiice be produced to prove the
perjury of a witness? why look to the indictment itself for a
proof of its own fallacy, when the requisitions of Ac court have
not yet been satisfied? The court wanted authorities to prove,
that in such a case as this, it had a discretionary right to bail
*^ according to the usages of lawJ^^
Mr. Burr wished to know, whether the court would go into
testimony extrinsic to the indictment.
Th(e Chief Justice had never known a case similar to the
present, where such an examination had taken pllace*
Mr. Martin would produce authoritieS| if he had time al-
lowed to him.
Mr. Randolph drew an analogy between this and die case of
a coroner's inquest.
Mr. Wirt siud there was no apposite analogy between them.
The Chief Justice insisted upon the necessity of producing
adjudged cases, to prove that the court could bail a party, against
whom an indictment had been found.
Mr. Burr did not wish to protract the session of the court to
suit his own personal convenience. There was no time at pre-
sent to look out for authorities.
The Chi^f Justice observed, that he was then under the
necessity of committing colonel Burr.
' Mr. Burr stated, that he was willing to be committed, but
hoped that the court had not forestalled its opinion.
Chief Justice.— -I have only stated my present impressions.
This subject is open for argument hereafter. Mr. Burr stands
committed to the custody of the marshal.
He was accordingly conducted to the gaol of this city, and the
court adjourned till to-morrow.
Thursday, June 25di, 1807.
After a writ .of habeas corpus was granted to bring up the
body of colonel Burr, General Andrew Jackson from Ten-
nessee, and sundry other witnesses were sworn, and sent to the
grand jury.
Mr. Hay addressed the court. — ^We were reluctant the other
day to discuss this subject. (It is not a question ; for it does not
deserve to be so called.) We wished the court to decide on the
testimony; but counsel would have an argument We have re-
peatedly proposed to them to close die arguments. I thought,
and stiU think, this motion an obstruction to public justice. I wish
to go on with the business of the court, and this motion pre-
313
vents me« Gendemen have determined to persevere; but,, they
have not stated the object; they have not specified the act of
which they complain. If they had stated in their motion the £eict
said to be an obstruction of justice, the absurdity would have
been apparent. By avoiding a specification they get over the
difficulty, and are enabled to go at laree on every topic for the
public ear. But a fair examination of facts will satisfy the court
that there is no foundation in law, nor justice, nor even in policy
for this motion.
Before I examine the merits of this motion, I cannot forbear
to express my surprise, that it should be made by the counsel for
the prisoner. It is called a contempt of the court. In what man-
ner can any of the acts charged, be tortured into a contempt of
the court. Is this motion made by order of the court itself f
The court would never have thought of it. Is it made by the
United States, or their officers? No. Nor is it made by a party
injured. Burr cannot jusdy say that he was injured by bring-
ing a witness to this place, who was one of his own associates,
and who quitted his wife, children, home and business, to join
him.
What then can be their motive in making this motion? The
solution is obvious. It is not with a view to clear away obstruc-
tions of justice; but to make an impression on the public mind,
that general Wilkinson, whose evidence is important, was guilty
of violence and injustice. The motion itself is a contempt of the
'court, by obstructing public justice.
Chief Justice. — Mr. Hay, the court will hear any motion
which you may have to make, or which any other gentleman
may wish to make.
Mr. Hay. — I cheerfully withdraw the remark, and to save
time, I will discuss this motion first. I will state as briefly as
I can, the evidence of the only witness introduced in support of
this motion to attach general Wilkinson, James Knox.
He says, that general Wilkinson sent for him, conversed with
him about Bu^r, and his plans, as he wished him to be a witness
at the expected trial. Knox complained to him of the want of mo-
ney to carry him home. General Wilkinson ofiered him money.
He knew, that if Knox were summoned as a witness on the part of
the United States, he would be entitled to money for his attend-
ance. It is only a conjecture of Knox, that general Wilkinson's
motive for ofFering him money was to induce him to be a witness.
I think this conjecture infinitely more probable: that, knowing his
evidence to be material, and that he would be entitled to his ex-
penses for his attendance, which might be prevented by his want
of money, Wilkinson thought he might, very properly and inno-
cently, obviate that difficulty .by advancing monev from the trea-
VoL. I. 2 K
suiy of the United States, to the amount that he Would probabiy be
entitled to. Knox said, that he was aiterwards arrested, and car-
ried as he understood, before judge Hall; committed to prison^
and carried on board the schooner Revenge^ by what he conceived
to be military authority; that he answered some questions, which,
according to his own statement, were artfully put; but that he de-
clined going through his evidence before general Willqnson: not-
withstanding, he i8declared,in presenceof thiaman,tobe amilitaiy
despot, keeping the whole western world in awe and terror* The
witness himself expressly declares, that Wilkinson never used
threats nor promises to him; and yet gentlemen have.frequently
mistated the notes, taken by general Wilkinson, to be an affidavit
extorted from him* Now, sir, admit for a moment, that this nnm
was brought here under a mistake of the law; adhiit more than he
states, that he was brought by military authority, and the orders
of general Wilkinson, and forcibly brought into this court Su^v
pose merely, that the general thought, that as the military com-
mander he had a right to bring reluctant witnesses to this country;.
and had brought Knox to this court, because he knew him to be
a material witness* I ask the court, whether this evidence, on
principles of common sense, could justify the motion now before
the court? This would be an illegal act, and for which Knox
might recover damages; but certainly it could not be called a con-
tempt of the court, without a perversion of terms, and confli^
sion of ideas* It would promote^ rather than obstruct^ justice*
There is one species of treatment which might be offered to a
witness, that might be called such a contempt* Suppose a wit-
ness were coming to this capital with a subpoena in his pocket,,
which had been served on him to attend and give testimony
in this cause, and he were forcibly prevented from coming to
court, that would be a contempt oif the court* In that case, the
streams of justice would be interrupted, and the court ought to
punish the party guilty of such unjustifiable conduct; and if the
court would punish an offender for stopping a witness from
coming to court, it would not act absurdly, blow hot and
cold at the same time; and punish a person for bringing a man
to court to tell all he knew in this cause* If to prevent a wit-
ness from attending the court, be a violation of private right,,
and a contempt of the court, for which the offender ought to be
punished; on principles of common sense, an act diametrically
opposite, cannot be the same offence* Admitting the conception
of the witness to be correct, that he was brought hither b]^ mi-
litary authority proceeding from general Wilkinson, this is coiv-
clusive to show, that it is not a contempt of the court. There-
fore, according to the testimony of the only witness brought
forward in support of this motion, and allowing it the utmost
latitude of construction, general Wilkinson is not guilty of a
315
contempt 6f the court, for which he ought to be attached, or
for which even a rule to show cause against it, should be
granted.
But, sir, what is the real history of the conduct of general Wil-
kinson? Why, sir, the mountain of which gentlemen have talked
so much dwindles to a mouse : nay, more, it disappears; not eyen
a shadow is left behind. The cause, about which so much has been
said,and by means of which so much obloquy has been attempted
to be thrown on general Wilkinson, is this : Mr. Gaines was re-
quested, by the attorney general of the United States, to serve
subpoenas on such witnesses as should be indicated to him.
General Wilkinson has the honour and glory of being the man,
by whom a dreadful explosion was prevented. He knew facts
and the particular state of things better than any other man.
The subpoenas were, therefore, very properly transmitted to him,,
to be filled up with the names of the witnesses. Mr. Gaines did
serve the subpoena on Knox, who said he was unwilling to at-
tend ; and he served it on him, because he was previously point-
ed out to him by general Wilkinson, to whom Knox had made
some disclosure. Though he had not made a full disclosure, yet
he had told enough to show that he was a material witness. I
have, in my possession, the notes of his evidence, taken by ge-
neral Wilkinson which, though neither sworn to nor signed,
would have been sufficient to show his materiality; as he had
come down the river with the party, and had some opportunity
of knowing their views and objects. With a knowledge of this
man^s materiality, general Wilkinson made an affidavit, that he
was a material witness for the United States, and it was sent, we
do not know by whom, (perhaps by a servant); it is certain he
did not carry it himself. I will make a single reflection in this
place. If general Wilkinson had been imder the influence of
those diabolical designs which are ascribed to him, how came
it to pass, that he intrusted this business to a roan with whom
he was at variance ? This evinces a great deal of fairness and
candour on his part. The judge issues his precept to take this
man up, requires a recognisance of him; he gives no security;
the judge deliberates on the subject; examines the laws of his
country, (with the examination of which he was intrusted) ;
gives his opinion, and expresses his extreme reluctance to act
against him. He refers to the clause of the act of congress in
question; to the counsel who was present; and after all^ he said,
that he thought it his duty to secure the attendance of this man
as a witness. He committed him, not to military authority, but
to the marshal. He issued his warrant to the marshal of that
district, and the marshal authorised Mr. Gaines to act as his
deputy; and here is the warrant, (showing it) which authorised
Mr. Gaines to act as deputy marshal.
316
Mr. BOTTS denied that there was any order conferring such
an authority. [Mr* Gaines was then sent fon]
Mr. Mac Rae offered to prove the respectability of judge
Hall, as he had been attacked ; and said he could amply establish
that he was a man of character and talents, and incapable of
beitig used as a tool.
The Chief Justice said, that nothing would be more im-
proper than to go into such proof; that his character was not
arraigned; and that, therefore, a vindication of it was un-
necessary.
After a few desultory remarks, Mr. Botts said, that he had
not attacked him except as to this business ; but his opinion was,
that if a lawyer in Virginia had given such an opinion, and act-
ed as judge Hall did in this transaction, his licence ought to be
revoked; but that he had understood from the best authority,
that he was a man of unimpeachable character.
Mr. Hay. — Gentlemen may do as they please with judge
Hall. It is not my business to vindicate him ; they may lay him
down in dust and ashes. It cannot affect general Wilkinson, nor
the question before the court, unless they prove a connexion
between them. I said, that the judge had committed Knox
to the custody of the deputy marshal; that he directed the war-
rant to the marshal, requiring him to bring him to this place.
The marshal executes a deputation to Gaines, who arrests him,
puts him in custody, then puts him on board the vessel, and
brings him as a witness to Richmond. General Wilkinson,
so far from manifesting contempt of the civil authority, was
fearful that Gaines might do wrong, and recommended to him
to apply to the attorney of the United States, and to other
counsel to know how to proceed. I deem this a very important
point: because general Wilkinson had not the slightest expec-
tation, that he would be the subject of public animadversion,
or that Burr would be the public accuser for what he was then
doing. Therefore, his recommendation to Gaines to apply to
counsel, demonstrates the habitual reverence of his mind for
the constituted authorities of his country. It is impossible
that he could have done so, for the purpose of shielding
himself from this attachment; for without inspiration from
above, he never could have guessed that such a motion as this
would be made. This conduct, in my mind, demonstrates, in
the clearest manner, that those imputations, that he is a m/-
litary^ lordly^ despotic^ character, and holds in contempt the ci-
vil authority, are absolutely groundless. How far general
Wilkinson was justifiable in time of great danger, when he
was threatened by traitors without and within, in acting as
he did at New-Orleans, or what he ought to have done on
317
that trying occasion, is a question not now to be determined*
I am inclined to believe, (though I do not certainly know) that
the decision will not only be favourable to him, but that ulti-
mately, the part he took will be honourable, in the highest de-
gree, to his character.
The declaration made by general Wilkinson to Knox, who
was complaining to him of the want of money, that he might
have so much, if duly considered, was proper and correct.
Now, sir, take up the subject as it really appears ; even on the
witness's own statement, it appears to be almost nothing. His
ordering the military agent to pay money to the witnesses,
shows his reason for offering money to Knox. When, there-
fore, we consider the case as fully stated by Gaines, it appears to
be less than nothing; because general Wilkinson did what was
perfectly consistent with law, and dictated by every principle
that ought to influence a man of integrity and patriotism.
Gentlemen say, that it was his interest and his object, in all his
plans, to destroy colonel Burr for his own salvation* If this
were true, would he not have used the most decisive means to
force the witnesses hither? What did he do in this critical situ-
ation? He receives subpoenas from the attorney general, and
tells the agent of the government, that he must apply to coun-
sel, and act in the business according to law* I ask, whetiier
ffeneral Wilkinson has done any thing for which he or his
friends ought to blush, or the accused to complain? All he did
was to make an affidavit, that the witness was material; and
every thing which he dicj, stopped there. After the affidavit,
every thing which was done was the act of the judge and of
Mr* Gaines. Will gentlemen contend, that, if my representation
be correct, Wilkinson is to be blamed for these acts? I know
they have too much respect for the court and for themselves to
say so: but they will say, that the military and civil authority-
were united for this pui*pose. I ask, where is the evidence of a
combination between general Wilkinson and the judge? What
temptation was there to induce the judge to violate his oath,
and prostrate his judicis^l character? Was it only for the purpose
of gratifying general Wilkinson, with whom he had no inter-
course, and with whom he was at variance? It is incumbent on
them to prove a previous connexion between them before they
can affect general Wilkinson. They have not deigned to do this.
But we have a witness on our part, whose testimony proves^, that
such a connexion was highly improbable. I wish Mr. Randolph
had pointed out the grounds on which he so boldly denounced
general Wilkinson for the acts of the judge* Knox, who made a
voluntary representation to Burr, has no right to oomplain.
He could maintain no action against general Wilkinson. Sup-
pose he were to sue him for false imprisonment* Could he
recover damages against him for making the affidavit, that he
318
was .a material witness? No, sir. The connexion between him
and the judge^ and an improper and corrupt decision by the
judge, must be proved. The witness could have no action
against general Wilkinson, admitting the conduct of judge Hall
to be illegal and oppressive. I think this ought to be conclu-
sive. If there can be no right of action, there can be no con«
tempt* But how strange does this proposition appear before
the court? Knox was summoned to attend here as a witness.
Suppose he had not attended, he would have been liable to an
attachment for not coming; because the process of this court
(in the name of the president of the United States) had been
served on him, and it was his duty to obey it. He would, there*
fore, have been liable to be attached for not coming, and yet ge-
neral Wilkinson is to be liable to an attachment for making him
come!! Is not this to blow hot and cold at the same time? This
may be law; but no man in the world would say, that it bears
the least resemblance to common sense.
The geatlemen have never defined a contempt of the court. It
IB stated in Sth Finery 442.
The very definition of the offence excludes the possibility of its
application to the act now complained of.
How then can there be any thing by way of contempt, unless
gendemen will seriously say, that general Wilkinson himself has
brought the witness hither, and that bringing a witness to the court
is a contempt of it ?
The case in 3 Finer ^ 234, pL 56. referred to by Mn Martin,
has no application to this case : it is not like it. The contempt
there consisted in keeping a juryman from attending the court.
I will trouble the court by referring to Ath Blackstone^s Com-'
mentariesy p. 283. He states that the contempts punishable by at-
tachment are ^^ either direct, which openly insult or resist the
powers of the court, or the persons of the judges who preside
there; or else are consequential, which (without such gross inso-
lence or direct opposition) plainly tend to create an universal
disregard of their authority." He further enumerates in the two
next pages, the instances of the different kinds of contempts by
officers, witnesses and parties, and other persons; all of which
come within the same definition, of disregarding the authority of,
or disobeying, treating with disrespect, or abusing, the process
of the court. I believe it has been observed, that there never was
an author on any subject, either law or any other science, more
distinguished for precision than Blacistone. This is a character
which he so well deserves, that I believe that an act that does not
come within the scope of his definition, is not a contempt, and
ought not to be so construed. Motions for contempts are questions
between the court and individuals. In ninety-nine cases out of a
hundred, they have no influence on the private rights of indivi-
319
duak* Yet the judges are but men, and they may sometimes
think there was a contempt^ when none was intended; and, under '
the influence of feelings, of which they are not themselves con*
scious, may decide accordingly, and punish a? party for an of* j
fence never intended, and of course not committed* This is an ^
observation for which I am indebted to one of the ablest judges
under the government of Virginia* Its propriety struck me with
great force« Notwithstanding I presume that tlus is a fact, under
such a high-toned government as that of England, the counsel
who opened the motion acknowledged, that a case in point could
not be found* Contempts in Great Britain have been frequent,
and they have been uniformly punished; but in this country very
few instances have occurred, and these were mosdy by drunken
men. I ask then, whether it be not wonderful, if their motion be
regular, that in all the volumes in the English laws, which treat
on the subject of contempts, not a single instance can be adduced,
by the industry of all the counsel on the other side, of an attach*
ment for such conduct as is now complained of ? But it can be
readily accounted for : it is because no such motion as this has
ever been known in Great Britain. Though the doctrine of con-
tempts has been too much extended in that country, yet no mo-
tion was ever attempted to punish a man for promoting justice
by bringing forward a witness to give evidence in a court of jus-
tice. But I deny that this has been done by the party now accused*
Is there a single circumstance in the conduct of general Wilkin-
son, showing a disregard for the authority of this court ? An at-
tachment is a summary proceeding, by which a man is taken up
instantaneously, brought before the court, and unless, as in the
present case, long speeches happen to intervene, he is immedi*-
ately punished or discharged ; and the case is determined with
as much rapidity, as the fate of those suspected persons, who
were formerly sent to the revolutionary tribunal in France* Need
I say to you, that however justified on the score of necessity, this
mode of proceeding is not perfectly congenial with the spirit and
principles of our constitution and laws. I do not mean to say, that
this power is improper, and ought to be cut up by the roots by the
legislature; but that it ought to be exercised with caution, and in
cases of real necessity* l9t Bacon^ 181. &f 4 Bhckstonc^s Commen*
tariea^ 286, show, that attachments are issued on the ground of
necessity* If it be a doubtful case, since he is not tried in the
usual manner, but interrogated to give evidence against himself,
the court ought not to stretch the doctrine, but confine it within
those limits which sound discretion requires* Even if an officer
of the court acted improperly, yet Bacon has laid it down as the
law^ that an attachment ought not to be issued against him, if
there were no palpable corruption in his conduct. If this be the
law, is'it not irresistible and conclusive to show, that admitting
320
that general Wilkinson did bring Knox to this place, yet if he were
not actuated by palpable corruption, and if no extraordinary cir-
cumstance of misconduct appeared on his part, the court will not
proceed against him in thatway. If this caution be used in exercis-
ing this extraordinary power in Great Britain, is not this caution
ten times more applicable to, and more desirable in, a government
like ours f I will mention a case which occurred in Fredericks-
burg, which has been communicated to me by judge Roane.
Some men were charged in that district court with murder; the
grand jury found a true bill against them. The court told the
gaoler to look to them ; accordingly the man took them oiit of
court; but it was understood next day, that he had permit-
ted them to escape. The court thought it a contempt of the ex-
press order of the court, and the question was, in what manner
a gaoler should be punished for suiFering men indicted for mur-
der to go at large. The gaoler was willing to encounter the
punishment of the law, and. the men came back. Judge Tucker
thought it certainly a contempt of the court; but did not sit to
give a judicial opinion. Judge Roane, recollecting the general
power of courts, and the practice in such cases, and that he was
jfiimself a party in the cause, was unwilling to use the power
which this law of England conferred, and ordered a jury to be
impaneled, to determine, whether a contempt were intended? The
point was tried, and the gaoler was found not guilty. I do not
mention this as authority; but to show, with how much caution this
summary mode of proceeding is used in this country. In Great Bri-
tain they have no fixed constitution, containing fixed principles,
by which their parliament is to be regulated. But in this coun-
try we have a constitution which regulates the duties of the dif-
ferent departments of government, and defines the rights of the
people. The seventh article of the amendments, adopted as parts
of the constitution of the United States, provides, among other
things, that ^^ no person shall be subject for the same offence, to
be twice put in jeopardy of life or limb, nor shall be compelled in
any criminal case, to be witness against himself!*^ This amend-
ment is not directly applicable to this subject, but it shows
its regard for the great and important rights of the people,
and that they are not to be interfered with, but with the ut-
most respect and caution. What cannot be done directly in
a criminal prosecution, ought not be attempted indirectly by
an attachment. I shall add, on this point, one more observa-
tion. General Wilkinson is attending this important prose-
cution, under the authority of this court. A subpcena, obliging
him to attend here, has been served upon him. I do not say,
that there is a provision in the constitution and laws of the Uni-
ted States, by which witnesses attending their courts, are put on
the same footing as witnesses attending courts under the state
t
321
siuthority; but I have understood, that the practice in the federal
courts is precisely the same. It is, perhaps, grounded on that
clause of the judicial act, which makes the laws of the several
states the rule of decision in the courts of the United States, in
trials at common law, in cases where they apply. In pages 122. ^
and 278. of ^the Revised Code of Virginia, the privileges of wit- s
Besses are stated. In the former page they are exempted from
ordinary process. In the latter, they are privileged from all ar-
rests, except for treason, felony, or breaches of the peace.
I did not suppose, when I saw the extreme solicitude of gen-
tlemen to bring forward this motion, their chagrin at delay, and
their eagerness to rush into the combat, that they would have
come forward on such feeble trembling ground, as they ha\T
done.
Mr. Randolph said, that suspicion was a sufficient ground
for their motion. This is a plain admission, that he had no facts
to support it; for if he had evidence, he would have relied on the
facts he could prove, and never have called the attention of the
court to suspicion. It is one of the last cases in which suspicion
ought to be indulged. This is npt a rule to show cause, but a
motion for an attachment. Probable ground might be sufficient
to induce the court to grant a rule to show cause; but not to
grant an attachment. To grant an attachment against a man, to
have him taken up, brought before the court, and compelled to
give evidence against himself, not on evidence, but on merely
probable ground, or what is the same thing, suspicion^ is incom-
patible with every principle of law and of human rights. The
evidence which it is incumbent on them to produce, in sup-
port of their motion, ought to produce not suspicion, but
conviction. When Mr. Randolph says, that suspicion may
be the ground for an attachment, he goes on a slender basis,
which is occupied by the previous ru\e to show cause, l^his rule
is always granted on showing probable cause. If an attachment
were grantable on mere suspicion, what could support a rule to
show cause ? It must be less than suspicion !
But I am wrong to blame Mr. Randolph, because it is the
best and strongest ground he could take; for, with respect to the
fact which he ought to prove at this stage of the business, it is
so far from being established, that it is clearly disproved. I^
know, sir, why the motion was made. If I may use another very
homely expression; he ** let the cat out xffthe bag»^ He became
more animated, his voice more loud, and his arms more extended,
and then he told us of the dreadful union between the civil and
militaiy authority. This is bad enough. It is terrible enough
to make strangers to our institutions think it an extraordinaiy
mixture of powers. When we hear of this union of. the civil
and military authority, and the complaint comes from Mr. Ran*
Vol. I. 2 S
322
dolph, it must excite surprise. Those who never heard of it be*
fore, as foreigners, must think that this business is strangely
managed in this country. I am surprised to hear Mr. Randolph
speak in such a manner. Why, sir, he knows that this identical
union of the civil and military authority exists in our own go-
vernment. The civil and military authority are joined by the
constitution of the United States. The president is commander
in chief of the army and navy of the United States: yet this
constitution, which we all revere, and which we have all
sworn to support, contains the very doctrine which Mr. Ran-
dolph so eloquently denounced, feven in this humble govem-
n^ent of Virginia, where liberty is secure, and where no maa
apprehends oppression from the government, the head of the
executive, is the head of the military. The covemor is the
commander in chief of the militia when brought into service:
yet Mr. Randolph puts on his best countenance, voice, and
gesture, to warn the people of this country, of a dreadful attack
on their liberties, by giving this commission to a lieutenant to
s^rve a subpcena!
He ought to have recollected another thing. He is not only
a lawyer, but a politician. He knows that it is to this very iden-
tical union of the civil and military authority, that we are in-
debted for our liberties in their origin, and since in their preser-
vation. If they were distinct, and exercised by diiferent hands^
we should soon see the military have the ascendency.
But suppose that lieutenant Gaines's undertaking to serve the
subpoena was wrong, is it a matter of consequence to general
Wilkinson, who did not know that Gaines had put off his mili-
tary dress, and assumed^ instead of it^ that of a civil officer?
Gaines swears that he never had any previous communication
with general Wilkinson on the subject; and never knew any
thing of it, till the deputation was offered to him. General Wil-
kinson never advised it; but if he had advised him to accept it> i
it cannot be charged as a crime to general Wilkinson. He is 1
able and willing to bear the imputation without shrinkbg. There a
could be no impropriety in advising him to do what was perfectly \
consistent with the law.
But Gaines did not give bond for the performance of the duties
of his office. What is the result? That the marshal was autho-
rised to take assistance, and Gaines might innocently have as-
sisted him; and this was all done, not under the military, but
under the civil authority.
[Mr. Hay then referred the court to GraydorCs Digest of the
iMwSy p. 264, to show, that his observations on this part of the
subject were correct.] But, sir, the word " miUtary;^ is formi-
dable in the ears of those who attend courts of justice. It ii^
328
therefore used. It is true, that he acted in taking and keeping
Knox, till he secured his attendance here. But had gentlemen
attended to the evidence, they would have seen that this was
done under the authority of the judge. But we hear distinctly
those parts of the evidence which favour our own side of a cause, .
and turn a deaf ear to those parts which are against us. It is only ^
on this principle, that I can account for Mr. Randolph's prefer-
ence in asserting that Gaines acted as a military character;
whereas it is evident that he acted in his civil capacity, in pursu-
ance of his commission from the iparshal, and in obedience to
the order of the judge. In this s^tement, he is corroborated by
Graham, and not contradicted by any one. He not only says so,
but ]^e produces the deputation from the marshal, and the war-
rant of the judge, for the removal. But if Gaines did act as
a military man, general Wilkinson is not responsible for it, any
more than the major or colonel, who were also his military supe-
riors; and if he were liable to the party in a civil actiqp, yet not
for a contempt of the court. Yet, says Mr. Randolph, ^^he is
incorporated with judge Hall, in all his acts;^' and one fact is
particularly insisted on as incorporating them, that of his mak-
mg the affidavit, that Knox was a material witness: and the re-
sult is, that if judge Hall put a wrong construction on the
law, general Wilkinson is responsible for it. Suppose Wilkinson
had gone before Hall, and made an affidavit to the materiality of
the witness, could Wilkinson be considered as responsible for
any illegal conduct of the judge, after the affidavit was made?
Making such an affidavit is a lawful act. On what principle can a
man, who does a lawful act, be amenable for the subsequent unlaw-
ful acts of another? Will they contend for so monstrous a proposi-
tion? Suppose an individual goes before a magistrate, and makes
an affidavit, that he has lost something, which he believes to be
in the possession of another; and the magistrate, not knowing
his duty, issues his warrant for the purpose of taking up the
person suspected, to hang him; would the individual, thus sub-
mitting his case to the magistrate, be responsible for the con- .
duct of the magistrate? What does he do? He goes to the ma-
gistrate and asks for the interposition of the law, according to
the law. Is the applying, but innocent, individual to be accoun-
table for the mistakes and errors of the magistrate? The posi-
tion cannot be maintained. It was not advanced in so many
term^, but it was strongly insinuated in their arguments, or
plainly to be inferred from them.
But another circumstance is relied on. "Wilkinson was the
commander of the vessel. This is disproved. For it is clearly
proved, that Franklin Read was the commander, who had a com-
mission to that effect. Though the naval forces were for a time
put under the command of general Wilkinson at New-Orleans*
324
he had no control over this vessel at this time. It was natural
that general Wilkinson should have offered a passage to the
witnesses, if they chose to come in the same ve83el that he came
I / in himself. He manifested the same disposition when he came to
^ Hampton. He got a vessel for their accommodation and its
cheapness. It only proves his humanity and his disposition to
oblige them, and make their passage as comfortable as possible.
Yet, said Mr. Randolph, with an increased emotion, and eleva-
tion of voice, that would have surprised me if I had not known his
object, ^' why were subpcenas sent to him, if not to be used with
military authority?" Suppose it was correct, that the attorney
general had sent a number of subpsnas with a view to be used
with military authority, and that the commander in chief receives
them. What does he do? What would any man suppose he
would do, or had done, if he were to form his opinion from
what has been said of his character here? He would suppose
that he had called about him^is janizaries and his mamelukes;
that he had sent one detachment to one part, and another to ano-
ther, through the whole country, to search for, and ^ seize all per-
sons, who had the misfortune to be witnesses; that this military
despot had sent out his myrmidons and military men, and without
any regard to law or justice, had seized, confined, and transport-
ed as many as his arbitrary caprice required. This, and worse
he would have done, if his character were such as it has been
depicted. But what did this mighty lord of the west do, with
all these witnesses? He gave the subpoenas to Mr. Gaines to
serve them, and told him, that if there should be any difficulty,
to apply to a lawyer for advice how to act. And this is the
mighty complaint against Wilkinson and Gaines!
Do gentlemen think that they make a favourable impression
on the public mind, when things in themselves so innocent, are
represented as acts of the highest enormity? When things so
white are thus discoloured? If they do, they are mistaken in all
their calculations.
But sir, general Wilkinson is guilty again, because he ven-
tured to ask Knox, if he were not afraid after what had hap-
pened. After what? " After I have arbitrarily seized and sent
. people to a great distance." What right had Mr. Randolph to
put these things in his mind, or these words into his mouth?
I will venture to say, that they do not express his real intention.
It is obvious that his meaning was, " Are you^ who are an as-
sedate of Burr ^ and have been of his party ^ not afraid to appear
before m^?" I will ask, whether it be right to ascribe to general
Wilkinson sentiments which are not his own, and then to con-
demn him for the sentiments thus improperly imputed to him?
Yet, <his is the deplorable necessity to which gendemen are
driven!
325
Mr. Randolph says, that Burr and Wilkinson are antipodes
to one another. Indeed thejr art; but in what sense they are so
is a consideration which I need not mention*
But, says Mr.' Randolph, ^^ it is the intention of Wilkinson to
min Burr* He must perish unless the other fall." We were
charged with going too far, in drawing unauthorised conclu-
sions and inferences; but Mr. Randolph has gone much further
than any of us, and has substituted assertion for proof. He has
stated, what is an unsupported assumption, that the Reputation
of Wilkinson depends on the destruction of Burr. I will not
retort the charge; but I will say, that it is more important to
Burr to destroy Wilkinson's reputation. He knows how im*-
portant it is to the accused to batter down the reputation of
general Wilkinson. The accused knows it, and professes it by
his conduct; because, from the comniencement of the prosecu-
tton till this time, the object of every step taken, and motion
made, was to beat down the character of general Wilkinson:
but if they were to accomplish it, it would be the same to their
client; it could not save bim. But they would say, that if it
would not be victory, it would at least be revenge. The argu*
ments of Mr. Randolph are so irrelevant, and the cases he ad-
duced so inapplicable, though plain and not denied by us, that
I shall not take up time to worry myself and the court, in prov-
ing points which are too plain to admit of controversy; but I
will trouble the court with a few more observations, without
noticing his law authorities. I shall boldly contend, that there
was not only not a single precedent among them, but that
there was not even the least justification for the present mo-
tion; that they have no real bearing on the subject. They were
either genersd principles, which are not denied, but which do
not apply to this subject, or relate to the conduct of the officers
of the court, in serving criminal and other process. But he
stated with great solemnity, that ** any force to swerve a wit-
ness from the right statement of facts, was illegal and im-
proper." In order to apply this, he is obliged to put down his
own witness. The objection is, to the taking testimony from
the witness. But the witness said, that there was no coercion
used in taking his evidence; on the contrary, that he was treat-
ed with courtesy. The objection operates equally against them;
for they have taken his affidavit in this city. Admitting there
was no degree of terror or force used. This has no sort of
application.
But Mr. Randolph says, that " no force is to be used in get-
ting a witness to attend. This is not law. If the accused had
been committed in the same district where the witness resided,
and the judge had sent forward the accused, he would have
been authorised to compel the witness t« come, and if he did
326
not enter into a recognisance, he would have put him in noL
The spirit of the law is, that a witness who is material, and re-
fuses to enter into a recognisance, may be removed by force.
These are the provisions of the act of congress. Force may be
and is used. The law directs that it shall he used* But the pio*
sition, if it were correct, does not apply to general Wilkinson,
because he did not bring the witness.
f It was said by Mr. Randolph, that it was a ^' most dangerous
power in any government, to extort testimony ex parte*'^ Is
general Wilkinson responsible for all illegalities committed in
the western country ? Mr. Jackson, they say, has been guilty
of great impropriety in taking evidence. But notwithstanding
this blame, which they so eagerly attempt to attach to gene*
ral Wilkinson, he has not taken any evidence at all. AH he did,
^ was, to make inquiry and take notes of Knox's evidence.. But
they ask why were these notes taken? To satisfy his own mind,
that he was a material witness.
But there was one observation which Mr. Randolph used,
with great warmth and solemnity, that ^^ a citizen of the
United States was thrown into gaol by cqrporal force, and
transported for the crime of being a witness." Is it not sur-
prising, that they take such ground as this? Is it not strange
to hear gentlemen of great experience, who hav^been intrusted
* with the management of important business, gravely speaking
' in this way? to hear Mr. Randolph say, that ^^ a citizen has
* been thrown into gaol and transported ?" These are sounding
and imposing words. Does not the court know, that these are
things that may be done by law? The court well knows, that
under the law of congress it is the business of a judge to re-
cognise witnesses, and if they refuse to enter into a recogni-
sance, or fail to attend, to commit them and transport them by
land or water, as may be most convenient, to the place of trial.
Is not this power expressly given by the words ^^ it shall be^
the duty of the judge of that district where the delinquent is
imprisoned, seasonably to issue, and of the marshal of the
same district to execute a warrant for the removal of the of-
fender and the witnesses or either ofthem^ as the case may be to
the district in which the trial is to be hadr"
Mr. Randolph, without a single tittle of evidence, and with-
out any principle of law to support him, prays in vain for a fa-
vourable decision. All the authorities which he introduced are
extremely vague; they do not show, in the smallest degree, that
the facts alleged, if proved, would amount to a contempt of the
court. Superadded to all this long catalogue of black crimes,
you are told, with great solemnity, that a citizen of a free
' country has been transported by military authority; not for a
violation of the laws of his country, but because he was a wit-
327
aess. Sir, I will not animadvert on his mode of conducting a
cause; I will only remark, that those observations, when made,
wer^ introduced with the utmost solemnity, expressed with
the strongest and most forcible voice, heard by every person
within the walls of this house, and were certainly intended
by the speaker to excite indignation against general Wilkin«
son, and sympathy for the accused; and after all, it amounts
only to this, that a witness may be c6mpelled to attend, if he
do not do it voluntarily*
The next observation was urged with precisely the same
view. He seems to tremble when he fancies, that ne sees the
prostration of all our rights and of our independence; when
with uplifted hands and eyes, and elevated voice, he tells you
of the military sporting with the rights of the citizens f If it
were mere sport, he need not be so much ularmed. But what
was this military sport, against which he so loudly declaimed?
It was simply this, that a captain^ with the permission of his
general^ and after a deputation by the marshal, served a sub-
poena on a xvitnessy and brought him with him, being himself a
witness and obliged to come ! I am not surprised, that gentle-
men wander from the point, because otherwise there would be
very litde ground for them to stand upon.
He talks of the robbery and plunder of the post-offices. For
what purpose ? Suppose the fact to be as it is assumed without
the slightest proof. Let general Wilkinson, or any other person,
who has committed the act, be prosecuted according to law.
Let the parties injured apply to the law, and the parties who
are guil^ be punished. But though the acu thus ascribed to
general Wilkinson were clearly proved, they could net be con-
sidered as a contempt of the court. Every thing is ascribed to
general Wilkinson, in order to furnish a sort of pretext for
denouncing him to the world.
Being fatigued myself, and believing the court to be so also, •
I shall not trouble it with any further observations. I trust
that the court will render a correct judgment, according to the
evidence and law.
While Mr. Hay was speaking, the grand jury entered, and
their foreman, Mr. Randolph, addressed the court to the fol-
lowing eflPect:
May it please the court:
The grand jury have been informed, that there is in the pos-
session of Aaron Burr a certain letter, with the post mark of
May 13th, from James Wilkinson, in C3rphers, which they deem
to be material to certain inquiries now pending before them.
The grand jury are pcrfecdy aware, that they have no right to
demand any evidence from the prisoner under prosecution^
328
which may tend to cr}minate himself* But the grand juiy have
thought proper to appear in court to ask its assistance, if it think
proper to grant it, to obtain the letter with his consent.
Mr. Burr rose, and asked whether the court were about to
give an opinion f
The Chief Justice stated, that the court was about to say,
that the grand jury were perfectly right in the opinion, that no
man can be forced to furnish evidence against himself: he pre-
sumed that the grand jury wished also to know, whether the
person under prosecution, could be examined on other questions,
not criminating himself?
Mr. Burr declared, that it would be impossible for him, un-
der certain circumstances, to expose any letter which had been
oommunicated to him confidentially; how far the extremity of
circumstances might impel him to such a conduct, he was not
prepared to decide ; but it was impossible for him even to deli-
berate on the proposition to deliver up any thing which had been
confided to his honour ; unless it were extorted from him by law*
Mr. Randolph. — We will withdraw to our chamber, and
when the court has decided upon the question, it will an-
nounce it to the grand jury.
The Chief Justice knew not that there was any objection
to the grand jury calling before them and examining any man as
a witness, who laid under an indictment-
Mr. Martin said there could be no objection.
Mr. Randolph said, he was afraid that the object of the
grand jury had been misunderstood by the court. The grand
jury had not appeared before the court to apply for the person of
Aaron Burr, to obtain evidence from him, but for a certain pa-
]>er, which might or might not be in his possession ; and upon that
paper being or not being in his possession, and upon its being
possible or not possible to identify that paper, it might de-
pend, whether Aaron Burr himself were or were not a material
evidence before them. And then the grand jury withdrew.
When Mr. Hay had concluded his argument, Mr. Mac Rae
addressed the dourt* He was solicitous, he said, to lay a com-
munication before it, on a circumstance, which had lately
transpired. The grand jury had asked for a certain letter in cy-
phers, which was supposed to have been addressed by general
Wilkinson to the accused. The court had understood the ground
on which the accused had refused to put it in their possession;
to be an apprehension lest his honour should be wounded, by
his thus betraying matters of confidence. I have seen general
Wilkinson, sir, since this declaration was made. I have informed
him of the communication which has thus been made; and the
339
«
general has expressed his wishes to me, and requested me to
express those wishes, that the whole of the correspondence be-
tween Aaron Burr and himself, may be exhibited before the
court* The accused has now therefore a fair opportunity of pro^
during this letter: he is absolved from all possible imputatxm;
his honour is perfectly safe.
Mn Burr. — ^Thc court will probably expect from me some
reply. The communication which I made to the court, has led,
it seems, to the present invitation. I have only to say, sir, that
this letter will not be produced. The letter is not at this time
in my possession, and g^eneral Wilkinson knows it.
Mr. Mac Rae hoped that notice of his communication would
be sent to the grand jur}'.
Mr. Martin hoped that colonel Burr's communication also
would go along with it.
The Chief Justice was unwilling to make the court the
medium of such communications.
Mr. Mac Rae hoped that the court would notify his com-
munication to the grand jur}% and for an obvious reason. When
the grand jury came into court to ask for the paper, what did
the accused say? Did he declare that it was not in his possjcs-
sion? No : he merely said that honour forbade him to disclose
it. The inference undoubtedly was, t^at he had the paper, but
could not persuade himself to disclose it. And what then must
have been the impression of the grand jury? A cloud of suspi-
cions must have fastened itself upon their minds; suspicions un-
justly injurious to the character of general Wilkinson; and which
the present communication may at once disperse. It is but jus-
tice, therefore, to general Wilkinson, to whom the inquiries of
the grand jury may at present relate, to give them the benefit of ^
this information.
Mr. Burr. — General Wilkinson, sir, is extremely welcome
to all the eclat which he may expect to derive from this chal-
lenge; but as it is a challenge from him, it is a sufficient reason
why I should not accept it. But as the remarks of the last gen-
tleman seem to convey some reproach against me, (which « no
man who knows me can believe me to deserve) it may be pro-
per to say, that I did voluntarily, and in the presence of a wit-
ness, put the letter out of my hands, with the express view, that
it should not be used improperly against any one. I wished, sir,
to disable any person, even myself, from laying it before the grand
jury. General Wilkinson knows this fact.
The Chief Justice then reduced these communications to
writing, and transmitted them to the gnlnd jOrv.
Vol. L 2 T '
S30
Mr* BuRA* — Let it be understood, that I did not put this let-
ter out of my possession, because I tocpectedUcks, grand jury would
take up this subject; but from a supposition that jtney might do so.
Mr. WicKHAM, about to speak, was interrupted by the en-
trance of the grand jury;, when Mr* Randolph their foreman,
informed the court, that they had agreed upon some present-
ments ; which he then delivered into the hands of the clerk.
The clerk read as follows:
The grand inquest of the United States, for the district of
Virginia, upon their oaths, present, that Jonathan Dayton, late a
senator in uie congress of the United States, from the state of
New-Jersey; John Smith, a senator in the congress of the Uni-
ted States, from the state of Ohio; Comfort Tyler, late of the
state of New- York; Israel Smith, late of the state of New-
York; and Davis Floyd, late of the territory of Indiana, are
guilty of treason against the United States, in levying war
asainst the same; to wit, at Blannerbasset's island, in the county
of Wood, and state of Virginia, on the 13th day of December^
1806,
Upon the information of
William Eaton^ Erick BoUman,
Peter Taylor, Jacob AUbright,
Charles Willie, John Graham,
Samuel Swartwouu George Morgan,
John Morgan, Thomas Morgan,
Elias Glover, D* Woodbridge, junr.
David .C* Wallace, Edmund B. Dana,
John G* Henderson, Alejcander Henderson,
James Wilkinson, Hugh Phelps,
Jacob Dunbaugh, John Monholland,
Chandler Lindsley, James Knox,
William Love, ^ Thomas Hartly,
Stephen Welch, James Kinney,
Samuel Moxley, David Fisk,
Benjamin H* Latrobe,
JOHN RANDOLPH, foreman.
The grand jury, continued Mr. Randolph, have no farther
presentments to make* He then delivered two papers which
they had received from the court* The one was a cyphered let-
ter, addressed to H* Winbourn ; the other was the letter to
colonel Morgan*
Chief Justice* — Mr. attorney, have you any thing more for
the grand jury?
Mr. Hat* — I can have all the indictments ready to be laid
before them to-morrow.
331
Mr. Taylor (from Norfolk). Is it not customaiy for the at-
torney to file informations upon these presentments? Is theve any
necessity for detaining the jury?
Some objection was made*
Mr. Randolph. May not the bills be laid before ano^er grand
jury, as the parties presented^re not now in custody?
Mr. Hax- — ^That course would be productive of great incon-
venience. All the witnesses are nowhere; and they will not, per-
haps, appear before another grand jury, and the present jury are
already in possession of all the evidence.
Mr. Randolph had hoped, that they would be discharged. He
was not anxious on his own account, but there was one of the
jury peculiarly and delicately situated; who wished to return to
his family.
Mr. Taylor observed to the court, that a very afflicting cir-
cumstance, of a domestic natiu'e, made him peculiarly anxious
to return home.
Mr. Hat was extremely sorry that he could not gratify the
wishes of the jury; but the interest of the United States ibrt)ade
him. He would have the indictments ready at any hour in the
morning, that the jury would name. Nine o'clock was mentioned,
and the jury were then adjourned to that hour.
Mr. WiCKHAM then addressed the court to the following
effect:
I should envy the gentleman, last up, the peculiar felicity of
never being in the wrong; and that happy ductility of judgment,
which enables him to apply other gendemen's arguments to suit
his own purposes, and to view every thing on his own side as
perfectly clear. The praise of general Wilkmaon is his great ob-
ject. His pure virtue and disinterested patriotism constantly
excite his utmost zeal, and form the theme of his finest eulo-
gies. Of this object he has never lost sight; but his own argu-
ment did not make much impression on his own mind : the
farther he went on, the weaker it was. Whether this were pro*
duced by some supervening doubts on the subject, or becausb
what is deemed clear requires no argument, I will not under-
take to determine. It would however save much time if the
S gentleman would introduce a short formula^ referring to his
brmer arguments in praise of general Wilkinson, instead of
perpetually repeating them. On what ground has the gende-
man on the other side gone to argue so elaborately and zea-
lously, if he think the case so penectly plain ? If it were so
perfectly clear as he affects to consider it, why did he address
so long an argument to the court? Did he believe so much la-
bour necessary to satisfy the minds of your honours that the
case was so very plain?
332
Buti waiving all these considerations^ I mean to confine my-
self to the point* It is to the court and the court alone, that It
mean to address myself. The gendeman on the other side
insists, that we have made no specific charge against general
Wilkinson. We cannot help it if he do not understand us ;
but we have stated a specific charge in terms as plain, as any
in the English language. If he do not comprehend it, per-
haps it is because our arguments have not as much weight with
him as his own. It is extremely difficult to conquer prejudice.
Our charge is, that there have been acts in the highest degree
illegal, done by general Wilkinson, under colour of the pro-
cess of this court; that a citizen has been dragged by military
force one thousand two hundred miles, for the crime of being a
witness,and having a subpoena served on him. We contend, that
this is a direct invasion of the liberty of the citizen; an abuse of
the process, and a contempt, of the court; and deserves a most
severe pttnisliment,if we can bring it home to general Wilkinson,
of which we have no doubt. We have supposed, that the judge's
warrant was merely a void act; because it was illegal. We
have supposed, thatt' calling on the judge, an officer without
authori^, to make out a warrant, which was neither legal in
form nor substance, but a mere attempt to give the semUanc^
of legality to wh^t they knew to be illegal, was an aggravation
of the offence*
Gentlemen say, that it was only a judicial act, in which a
judge may be mistaken, without being liable for his mistake.
WiU the gentlemen contend, that an illegal warrant, issued by
' a magistrate having no authority to act, can have any effect?
Whatever he does, without having jurisdiction, is void, and has
not the least validity : if he err, his mistakes are not excused.
But if he have iurisdittion, and a right to act on the subject, he
is not responsiole for errors of judgment. There is nothing
better settled, than that distinction between cases where a ma-
gistrate has authority to act, and cases where he has not. In
the former, his mistakes of judgipcnt are excused ; but in the
latter, he is personally responsible for his acts, and his miscon-
ception of the law does not in the least excuse him.
Another observation is, that in the lowest as well as in the
highest oifenCes, all are principals. Every person concerned
in an illegal act is equally guilty, in the eye of the law, with
the person most active. The question then arising on this
particular case, is, whether this act of violence, this abuse of
the process of this court, were procured or aided by general
Wilkinson, or were assented to by him ; either before or after
die imprisonment complained of? If he acquiesced in the
mischief done, or assisted in it, he is as guilty as if he had
333
first contrived it. Every person who assents to, or aids in, the
completion of an illegal act, is a trespasser ab initio^
Instead of wandering into the wide field of declamation, to
^ palliate or justify those illegal acts, gendemen ought candidly
to have said, ^^ We admit the guilt of those inferior agents, by
whom the acts were committed, but we insist that generad
Wilkinson is innocent*" No sir, not choosing to rely on his
innocence, they undertake to show, that the act itself, if not
innocent and justifiable, is at least excusable ; and they cen*
sure us for making this motion, as if we had no interest in it.
They tell us, that *^ the United States have not been injui'ed,
and make no motion.'^ Sir, if the officer of the United States
do not choose to resent diis indignity to die court, which
goes CO sap the foundation of justice, is that a reason why the
party injured should not lay it before the court? This is the
cause of the Upited States ; it is the cause of every man who
comes forward as plaindff or defendant. Every man feels an
interest to keep the fountain of justice pure and uninterrupted.
They ask, ^^ was the witness brought here to speak truth?"
]l hope this man did say the truth. I am sure he did say the
truth; because the witnesses they relied upon, to exculpate
general Wilkinson, proved, that every thing he said was true.
They confirmed not onlyall he -said, but supplied every omis«>
sion in his chain of evidence. But sir, has fear no effect? Has it
no operation on the human mind? If this man had nerves strong
enough to bear such treatment, are we sure that the fortitude
of others will not be shaken? If the court sanction the practice
of bringing witnesses to the bar as criminals, will it not have
thcL practical effect, in many instances, of prevendng impartial
evidence? Can we expect from a man dragged as a felon, that
manly disclosure of facts, which distingubhes a firm and in-
dependent mind; and which neither the fear of offending, nor
the hope of pleasing any party, however powerful, can prevent
from exculpating or criminating according to truth and justice ?
Was not hope as well as fear used? On one side you have a
sum of money and other emoluments; on the other, ruin and
disgrace. On the one hand you have every prospect of advan-
tage; on the other of being dragged in chains! Can it be doubted,
that if this practice be tolerated, a witness, allured by hope on
one side, and alarmed by fear on the other, will deviate from
the truth? If there h» a deviation, it is on the side of the pro-
secution; for which way they wish it cannot be doubted. The
man who avows maxims of this sort, for the attainme&t of any
end, will not be scrupulous as to the means which he employs
to secure it. But -another view in which this subject ought to
be placed is this : Colonel Buir in justicemd law stands on an
334
equal footing with hid accusers. He ought, if possible, to be so
in fact; but we know that it is impossible; that every disad-
vantage operates against every man who is a prisoner; and that
every advantage is in favour of the prosecution. On one side all
the means of procuring evidence are restricted; on the other the
means of commanding testimony for the prosecution are unre-
strained and abundant. An officer appointed by the government,
and liable to be turned out of office at its pleasure, summons the
witnesses. If he be a firm and independent man, determined
to do his duty correctly, at all hazards, so much the better ;
but if not, we know how his bias will be. The public treasury
may be emptied in collecting witnesses and employing affidavit-
men : and, in addition to all these means, if there be unwilling
witnesses, or any who suggest doubts, they are brought by
force to give evidence. But, if we have unwilling witnesses,
who can testify the truth in our favour, we have nothing but
the naked process of subpoena to compel their attendance.
There are great advantages on the part of the prosecution,
which ought not to be carried any further. This is an un-
fair advantage to the prosecution, which this court ought to
take from them. But, ^^ we have made this motion, in order to
make impressions on the public mind." I will not waste the
time of the court in inquiring who have wasted most ftime.
We have been obliged to follow the gentlemen in this course.
It will bcrecoUected by the court, that they have repeatedly
attempted, in this court, to advocate and foment those strong
prejudices, which have been industriously, and but too sue-
cessfuUy excited against colonel Burr in the country. They
still continue their efforts to create and increase those pr^u-
dices. I ask, whether it were to the public or to the court that
those remarks were addressed? What has the court to do with
motives? But if motives be discussed, did they not wish
to influence the public mind, at the very moment when they
accused us of it i Colonel Burr is not obliged to account for
his motives. We are correcting that influence on the public
mind, which has been improperly produced. But there is a
motive, and a very powerful one, to justify this motion. We
know not how long this prosecution may be continued* We
know not how long this practice may be continued. We wish
this court to put its veto upon it, and act..i/i terrorem^ to pre-
vent such oppressive and unjustifiable pr^tices hereafter. For
as long as the prosecution lasts, this ofience may be repeated,
and theiefore ought to be repressed.
But, ^^ suppose general Wilkinson to be the man who has
dragged a citizen, by military force, from one end of the
country to another, it is only a nlistake of the law*" Does
335 '
the gentleman forget the legal maxim, that *' Ignorance of
the law excuses no one?^^ But if this were not the law, and
ignorance were an excuse, can it be believed, that this was
a mistake proceeding from ignorance? General Wilkinson
is in possession of the highest military office under the go-
vernment. Can a man, in his elevated station, be so ignorant
as to believe, that he can drag a man, as a felon, twelve hun-
dred miles for the crime of being a witness ? If he be this ig-
norant man, and if he commit acts in the highest degree t3rran-
nical, through ignorance, what shall we say of the government
which appointed him? Sir, the government knew that he was
a man of talents, and had no right to believe, that he would do
these things; or, if he should, that he would not be personally re-
sponsible for them. No man will believe that the government
thought, or that he himself thought, that he tould assault or
imprison any man lawfully or with impunity. There is hardly
a boy out of his hornbook, that does not know better than that
such acts could be legal. I hope we shall hear no more of the
ignorance of general Wilkinson.
Butwe are told, that we are guiltyof a contradiction that cannot be
reconciled. The gentleman says, |^ if Wilkinson had stopped Knox
and prevented him from attending as a witness it would have been
a contempt of the court;" and we are asked, ^^ if it be a contempt
to stop him, how it can be a contempt to bring him, as the acts
are opposite in their nature ?" This is a most singular argument.
Things may be opposite, and yet be wrong. Extremes are fre-
quendy wrong. It would be a strange thing if general Wilkinson
could have carried this man from Richmond to Norfolk, by
force, and be liable for his conduct; and yet if he carried him,in
like manner, from Norfolk to this place, that he should not be
equally liable. These acts are opposite in their nature, and are
equally contrary to law. Suppose Knox had been brought in irons,
and used cruelly; (for Wilkinson used no more cruelty than suited
his purposes) would he not be responsible for so nialtreating u
witness, under the protection of the court ?
But the gentleman says, that it was stated to be an attack on
the liberty and privileges of a citizen; but that ^^ it shrinks into
nothing :" that the offence was only to compel an unwilling wit-
ness to attend ! And does the gentleman seriously contend, in
this country, and in this court, that it is a venial offence to cast
a man into prison, and to force him to come twelve hundred
miles, with only the authority of a subpoena ? Are the liberties
of the people of this country dependent on so fine a thread, that
any man, clothed with military authority, can use his power or
force over any citizen of the United States, if he have a subpoena
in his pocket ? Any party having a cause in 'court, may have a
subpoena to summon any other person. I remember, the other
day, that these gentlemen admitted, that a subpama might issue
t
I'
I 336
against Mr. Jefferson, and that his high station, of chief magis-*
trate, did not exempt him from it; that all the citizens of this
countiy were on grounds of perjfect equality. We agree that
their doctrine is correct. Let \ib see the application of it. If all
the people be on terms of equality, they were so when the pro-
cess which issued, requiring the president to give testimony,
was served. Suppose it had been put into the hands of half a
dozen myrmidons, and that after serving it, they had dragged
him by force from Washington to this place; what would have
been said of such conduct i Would it not have been an offence
that ought to be severely punished ? Yet there is no difference
between Mr. Jefferson and Knox, with respect to their legal
right of exemption from such acts of violence; and yet they
' contend, that the treatment of Knox was correct and lawfuL
I Are gentlemen serious, when they urge arguments like these I
. I come now to the inquiry, What are the facts which arc said
to justify or excuse the ill treatment complained of? And first,
as to Mr. Hall, whose warrant, though null and void, is brought
forward to bolster up general Wilkinson. He is the mere puppet
of Wilkinson. They say, that he and general Wilkinson were at
variancle. It is very probably true; and general Wilkinson mi^t
be at variance with every man at New- Orleans, except his own
immediate dependents. Was there no motive to operate on judge
Hall i Was there not such a passion as fear i Hall knew what WiU
\ kinson had done, and what he could do; ' and when he sent him a
message, to devise some process to bring Knox by force to this
court. Hall knew, that the requests were commands* Observe how
^ the transaction originated* Wilkinson's motives are too obvious
* . to admit of a doubt. He sends for Knox; treats him with parti-
cular courtesy; offers him his services; asks him if he wanted
money, and a number of questions concerning Burr; and
takes down his evidence in writing, differently from the facts^
and not as he told them. These are all done by general Wilkin-
son, without the intervention of any other human creature. It is
obvious, that general Wilkinson did not go directly to the object
he had in view, but amused him at first with some observations
about Dunbaugh; about all of whose measures he knew more
than the witness himself. After this solicitude shown to gettes-
mony from the witness fand such only as suited his purposes)
we find the process of this court used. Lieutenant Games, who
commanded at Fort Stoddert, one hundred, or perhaps two hun-
dred miles from New-Orleans, in pursuance of an order from
the secretary at war, (a military order, gentlemen wiU admit) is
directed, after serving some of the subpoenas, sent to him, on
some persons under his own command, to go to general Wil-
kinson, and to deliver him the subpoenas; and some how or other,
they get from general Wilkinson's hands into his own. We have
' , 337
brought the case of Knox before the court, in order to try the
principle, and to ascertain, whether such practices are to be tole-
rated. General Wilkinson tells Gaines that Knox is an important
witness and must be summoned* Herecommends to him to summon
him* Is not a recommendation from a military superior a com-
mand i and was not this command, to have this nian summoned i
It ¥ras found, that he would not go. What was the next step i
He did not order Gaines to go and consult a lawyer, to know what
was right and ought to be done, as gentlemen allege in his de-
fence; but how Knox was to be brought, and how his own illegal
purposes were to be effected. Gaines refers to lawyers; they give
advice how this purpose is to be attained. Wilkinson then gives
him further orders. He advises him to go and consult Mr. Hall,
and obtain his advice and assistance. A subordinate officer is
bound to obey his master's commands* He therefore goes and
takes the advice of Mr. Hall. After getting his advice and direc-
tions, he goes to the witness, who is a little sulky; and in order
to put him into good humour, in this pleasant situation, he is
thrown into gaol ; and then forced by a military guard on board
the vessel, which was under the control of general Wilkinson ;
for he only gave them permission to take a passage with himself*
After the witness is deprived of the means of getting his clothes
and other necessaries, and sent on board by Dunbaugh, some
money is wanted; forty or fifty dollars must be had. Where is this
sum to be got? ^Did general Wilkinson give Gaines any order re-
specting it, and what I H^ orders him to take the money out of the
military chest. This proves, that it was for a mi/i/^7ry,andnot a civile
purpose* Why was he recommending, advising, ordering, and
referring, this inferior officer, unless he were performing a military
service ? I mean no disrespect to lieutenant Gaines, but the con-
trary. For it is evident, that he must have felt himself in
a disagreeable situation; but he was compelled by the autho-
rity of his superior officer to execute this request. He obeys;
and when all this had been done, it was not sufficient. There
must be a marshal to execute this process. Lieutenant Gaines,
from being an officer of honour, is turned into a bailiif. He was
told, ^^ The marshal has already appointed you; here is a deputa-
tion by which you are constituted his deputy to perform this bu-
siness. It may be unpleasant for you, as an officer, to do this dirty
business. You are to have the paper in your pocket that autho-
rises you to do it; but you need not do it yourself. You can em-
ploy a Serjeant or a soldier to do it."
There was an evident perplexity in Mr. Gaines's testimony.
It was a perplexity arising from the interference of civil with
military duties* He found himself obliged to wear over his mi-
litary garb the disguise of a catchpole^ which, as an officer, most
Vol. I. 2 U
338
have been extremely repugnant to his feelings. The perplexity
was not in /his narrative, but arose from the situation in which he
was placed by general Wilkinson.
It would be a waste of .the time of this court to show, that
general Wilkinson was the prime mover and contriver of all these
rigorous and oppressive proceedings. The gentlemen attempt to
devolve the responsibility on judge Hall, who is said to be a
man of honour and respectability. You may judge how honour-
able his situation must have been, when he was forced to obey
general Wilkinson in manifest violation of law ! Must he not
have felt himself degraded, by being compelled to give an op-
pressive construction of the law, against his own judgment \ The
judge could not be mistaken as to the law. It is written in plain
terms. Can it be supposed, that so respectable a judge as ne is
represented to be, could believe, that he had a right to send a
witness, as a prisoner, to any place^ and in any manner^ he pleas-
ed; and that a witness loses the rights of a citizen the moment
he is summoned ? The eulogtum pronounced on judge Hall, dis-
proves every argument they use on the subject.
But *^ Mr. Wilkinson asked Mr. Graham to consult Mr. HalL"
Mr. Graham, delivered his evidence in a most correct and pro-
per manner, and free from perplexity. He proves every feature
in the cause, that was not proved by Knox and Gaines. They
rely on Mr. Graham's testimony. To me^ it is most marvellous,
that gentlemen cannot perceive, that his testimony goes direcdy
to fix the guilt, if there be guilt, on general Wilkinson. He says,
that he was directed by Wilkinson, to ask judge Hall, if there
were any legal means of compelling this man to attend as a wit-
ness? The evident meaning of this inquiry was this, ** Compel
himy by legal means if you can^ but in any events compel him to
attend^'* £ very illegal warrant is void. He nuist have known it
to be so. Is it not evident that this communication between Gra-
ham and Hall, was made at the instance of general Wilkinson,
and with a view to shelter himself under the forms of law?
But " if he were a military despot, he would not have re-
garded them!" When did this happen? In May 1807. He
must have known what had been done in the United States, and
that his conduct had excited universal horror and indignation
throughout the country. He is the prime mover ^ and every act,
done by others, is imputable to him. They were under bis con-
trol, and compelled to act as they did; and perhaps they deserve
rather the pity, than the censure of the court* He therefore was
desirous at this time, to shelter his acts under the forms and
apparent sanction of the law.
But this is not all, a» I had occasion to observe before. A
man who sanctions an illegal act^ though not the first contriver
339
of it, sid>ject8 himself to all the consequences of it. When Knox
came on board the vessel, this question is, whether general Wil-
kinson knew that it was reluctantly? General Wilkinson knew,
most assuredly, that he was put on board against his will, by a
military guard, and yet he did not assist him; for he knew that
it had been done in pursuance of his own well understood wishes
and orders. The evidence of Mr. Gaines, collectively considered,
proves this clearly. Gentlemen «ay^ that the vessel was command-
ed by Mr. Read. I have seen the young gentleman, and I hope
he deserves the character which the gentleman gives him; but it
is clear, that he was ready to obey the superior commands of
general Wilkinson, and that he knew it to be his duty. Mn
Gaines said, that he was obliged to apply to general Wilkinson,
and not to Franklin Read for a passage on board the vessel. It
was the same case with Mr. Graham. When several different
commanders, as a military and a naval commander are together,
the. inferior in rank acts under the command of the superior,
and all the navy .of the United States at New-Orleans was
under the command of general Wilkinson*
But what was done at Hampton ? Mr. Gaines, in every thing
relative to this transaction, only obeyed his superior officer. He
therefore told Knox, ^^ You are to understand, that you are
brought here by virtue of a deputation from judge Hall to me,
and not by the military orders of general Wilkinson. You are
to understand, that this was resdly the case." Why? Be-
cause general Wilkinson recommended it* These were terms of
mere civility. I dare say, that Bonaparte, when he gives orders,
uses civil language ; whenever he gives particular orders to any
of his officers, he may say, ^^ You will oblige me, by taking sucti
a place." " You will oblige me, by seizing such a party." " You
will oblige me, by conquering such a territory." Or, "by ac-
complishing any other achievement." Suppose the officer thus
ordered, were to disobey and excuse himself by saying, " I
misunderstood you; you only said you would be obliged to me,
if I would do so." Would he not be instantly punished or shot
for disobedience of orders?
Mr. Hay.— That is only the rule on military subjects.
Mr, WicKHAM. — This was not a civil transaction certainly.
But, sir, this was really not so bad after all, because Knox had
counsel. That counsel only expressed his doubts'io judge Hall.
It is the custom at New-Orleans for lawyers to respect and obey
judges; Tit was once so here); and this was a respectful expres-
sion of his opinion. The judge directed the measure, and the
counsel acquiesced. He knew that his doubts would be of nt sort
340
of consequence, and that Knox would be sent round. He knew
that Wilkinson directed and controlled all. The gentleman then
went on and assumed as b, postulatum^ that if no action would lie
for this treatment to Knox, there could be no contempt of the
court, for which an attachment would lie. It would be a most
extraordinary doctrine, that the process of this court could be
obstructed by the application of force, or even by the fear of vio-
lence, and yet that the court could not punish it by an attach-
ment. But I will admit, for the sake of argument, that an at-
tachment for a contempt will not lie, if no action can be main*
tained by the party injured. But what then? Will the admission
strengthen his argument? Has the party aggrieved no redress i
If to be taken up, confined, and transported as a felon, from one
part of the country to another, for no crime, will not support an
action, then our courts of justice may as well be shut at once.
If an action could not be maintained for such treatment, for
what would it lie ?
^^ But he had good provisions." That is not the point at issue.
'* But he was at liberty after he was on board." He was not per-
mitted to go on shore, and if he were not satisfied with his situa-
tion in the vessel, he was at liberty to walk overboard. The
only sort of liberty which he had, was that of jumping mto the
sea, if he thought proper.
I will not go into the law of the case, because I am perfectly
convinced it is unnecessary. We rely on the broad principle,
that whenever the process of the court is abused, it will inter-
fere. But you are advised to imitate the judge, who some time
ago at Fredericksburg, directed it to be decided by a jury, whe-
ther a contempt of the court were intended. I will not undertake
to undervalue the benefit of the trial by jury on any account;
but there would be a disadvantage to general Wilkinson, in sub-
mitting it to a jury. It would not be a boon, but a probable in«
jury. If he be in contempt, how is he to be exonerated? By his
own oath, and not by the 6ath of a jury. He comes in and an-
swers interrogatories on oath, and if he deny the facts charged,
he is acquitted; or if he explain them to the satisfaction of the
court, he is equally cleared; but if he refuse to answer, or if he
admit the facts as charged, then only is he to be punished. But
he is referred to his <nvn oath^ and to his otvn judg'mentj for a
complete exoneration. Is this an advantage or a disadvantage?
Is it not more beneficial than to refer it to the judgment and the
oath of a jury. There can be no doubt that a motion for an
attachment is sustainable, for the abuse of the process of the
court, in any place where it can lawfully issue. "*
There is one difficulty which the gendemen on the other wde
did not mention, and it is this ; that the acts were not done in
S41
this diatrict, aod that perhaps this court has no cognisance
over them. But part of them was done in this district; force was
used at Hampton; Knox was there continued on board against
his will, and that gives *the court jurisdiction.
But, sir, the process of attachment is atixiliary to that of sub-
pcena. The process of subpoena goes throughout all parts of the
United States; and that of attachment ought to be commensurate
with it. It is in vain to give the power to issue process, without the
power to enforce it; and wherever it is abused or improperly ex-
ecuted, the court can notice it and punish the party for not exe-
cuting it according to law. This doctrine, I tfiink, was sanctioned
by the opinion of judge Patterson, in the case of Smith and Og*
den, in the district of New- York. In the case of William Smith, a
subpcena had issued, to sGmmon the secretary of state, and the
secretary at war. They failed to attend, though the process had
been duly served on them. A motion was made to issue an at-
tachment against them, for their contempt, on various grounds,
explained by his counsel. .The court differed in opinion. One of
them, (I believe judge Patterson) was of opinion, that a rule to
show cause, why an attachment should not be issued aginst
them, ought to be granted. But it is unnecessary to dwell on
this point, as the gentlemen on the other side took no notice of
it. In every point of view, therefore, our motion for the attach-
ment is sustainable, and I pray the court to award it.
Mr. Hay. — X will set Mr. Wickham right as to one fact. He
had attended so much to what he was going to say himself, that
he did not attend to what we had said. Mr. Mac Rae did press
the objection, and he was answered by Mr. Botts. My own
opinion, however, is', that the power of the court to attach is
commensurate with its process; and that those gentlemen who
were summoned, would be liable to an attachment for not attend-
ing. I incidentally admitted the doctrine^
Mr. Martin. I shall make some few observations in addition
to what has been said by the gentleman who preceded me. I
shall endeavour to show, that it was a military transaction from
the beginning, till the arrival of Mr. Knox at this place ; and that
its direct tendency has been to prevent justice. Let us examine
the rights of parties in a court of justice, and the cause as be-
tween man and man. Each man has a right to compel the atten-
dance of witnesses, to give evidence in support or defence of his
rights, in any cause deluding therein ; one party has no more
right than another, to compel the attendance of witnesses. How
is the law in this respect, as between the United States and in-
dividuals accused of crimes? Suppose a person charged with an
342
oBence is arrested ; the magistrate, before whom he is brought, is
to hear the statement of the United States, and of the prisoner,
and to examine the witnesses brought before him for the pur-
pose of determining, whether the prisoner ought to be committed
or not* He is then to bind the witnesses in a recognisance to ap-
pear before the proper tribunal, at the time appointed for the trial
of die prisoner. But if a witness refuse to enter into such re-
cognisance, he is to be committed to custody till the time of trial, "*"
in order to secure his evidence. But this can only be done by
the examining magistrate ; and this is all that can be done by the |
United States, with respect t6 the witnesses who happen to be ]
present at the examination. But if the United States wish to have
the privilege of further testimony, they are to apply to that court \
of justice, before which the trial is to be had, for subpoenas. These
subpoenas must issue, be served, asd returned executed. After
which, if they fail to appear on the return-day, an attachment may
be issued against them. This is the whole process in behalf of |
the United States. How is the defendant to get his evidence ?
His privileges are the same. He is to send subpoenas in like
manner, for his witnesses; and if diey do not attend after they '
are summoned, they are to be attached. They stand, in point of
law, on equal terms; but the United States have superior ad-
vantages over the defendant, if they be compelled to resort to
the same means of enforcing obedience. The power and influ-
ence of the United States command much greater diligence and |
alacrity on the part of the officers, who are to execute the pro-
cess, than the means of any individual, labouring under the dis-
advamtages of a public prosecution, can possibly procure. "What-
ever means are illegally used to procure witnesses for the United
States, prevent tKe stream of justice from flowing purely; it is as
much an interference with the equal administration of justice, as f
it is by illegal means to keep a witness away from the court. The ^
law only ought to be resorted to on the part of the government
and on the part of the prisoner: and it is as inconsistent with the
law, that testimony should be brought by coercion, as that it
should be illegally kept away. It is an act injurious to the pri-
soner, and if we examine which is the more oppressive and de-
structive to personal rights, we shall find, perhaps, that the for-
mer is more so than the latter. It is said to be ^^ a singular case."
It is indeed a singular case. I think on my conscience, that such
a case was never heard of before; and that such pains were never
taken to destroy a person who was charged with a crime. In ad-
dition to the means directly used by the government, many per-
sons in order to ingratiate themselves with it, have used all the
eifcMts in their power for the attainment of that object.
The secretary at war wrote a letter to lieutenant Gaines, who
343
was the ooniinander of a fort, directing him to quit it and exe*
cute this business. It was a imVitor^ common^ from the secretary
at war, ordering him to undertake a military journey for civil
purposes; to go to general Wilkinson^ to deliver him a letter; to
serve subpoenas, after filling up the names of the witnesses which
he should point out; to obey the instructions of the attorney ge-
neral, and then to come to Virginia* It was by a miiitary command
that he received and excepted the subpoenas. It was by a military
commo/i^ thathe was to summon himself ^ and obey the instructions
of the attorney general at New-Orleans. Did he serve the sub-
poenas as a civil officer, or in obedience to the orders of the se*
cretary at war? Did he receive information and directions from
the attorney general at New-Orleans, as a civil officer, or pursu-
ant to the directions of the secretary at war? By whose orders
did he quit his 'garrison? To whom was he referred? To the
same person to whom general Wilkinson was referred. Who is
this attorney general? A man probably of respectability, but ready
to be displaced unless he obeyed the government, and assisted in
facilitating to the means of causing the witnesses to be brought
hither.
General Wilkinson in the next place was to fill up the names
. .of the witnesses. There have been complaints against Mr. Jack-
son for taking affidavits, but he did not compel men to give tes-
timony; that was general Wilkinson's province at New-Orleans.
He was to find out who were witnesses, and fill up the blanks in
the subpoenas with their names. Has not Mr. Knox told us that
! Hall had a number oi printed interrogatories? That he and Mr.
Fort were called on to answer them on oath ? And that their de-
clining to answer them, was the cause of sending them to gaol?
Knox has further informed us, that it was on Sunday evening
that they were carried before the magistrate. It is well under-
stood that Sunday is not a legal day for such purposes. As Knox
f declined answering those questions, he was committed that night
to the custody of the sheriff, who was to bring him back on Mon-
day morning, and to whom he gave security for his appearance
, accorctingly. Knox says further, that the next day they appeared
^ and were both interrogated; that he answered some of the ques-
tions, but with respect to the other interrogatories, he begged an
opportunity to consult a lawyer, lest he should commit himself.
Fort refused to answer any of them, and both were put into gabl
with negroes and felons. It was by the warrant of the judge,
that the sheriff carried him to gaol. And for what reason? Was
it because he refused to appear before this court, to give testi-
mony, or for refusing to answer the printed interrogatories before
him? It was certainly for the latter. Did the subpoena by which
he was summoned to appear, before this court, require him to
344
answer inurrogatories before that judge? No, ^sir, nor had the
judge any legal authority to act as he did* Afterwards an order
was given to the marshal to transport him hither to give evidence.
Let me, in a few words, state the improper manner in which
the government, or its agents, proceeded. Wherever they sus-
pected any person of being able to give information, they carried
him before a magistrate, and forced him to give testimony, all
on one side ; and wickedly interfered wi|h the purity of the stream
•f justice* What, sir, would a court of justice permit ex parte
testimony to be read? A witness, who can give testimony on the
side of the defendant, and for that reason does not suit their pur-
pose, is passed by and never heard. They take the evidence for
the prosecution in such manner as they think proper, and design-
edly trammel and shackle the witnesses so as to be bound by their
own ex parte testimony, when confronted with it on their exami*
nation in court. I heard one of the gentlemen, who prosecute^
(Mr. Wirt.) the other day, with great delight, expatiate on the
nature of ex parte evidence. He made a most eloquent and cor-
rect speech, to prove, that such evidence is not dictated by the
witness, but by the person who takes the depositions, and that it
ought not to be trusted. If ex parte testimony be so improper,
when only a motion is made, or when trivial collateral points are!
discussed, how much more improper must such' testimony be in
an all-important case, where the honour, reputation and life of an
individual are at stake? Was it for the sake of the government
that general Wilkinson did all this? I will admit, that holding an
important and lucrative office under the government, he might
tbuik, that he would retain his present advantages and obtain fu-
ture favour by this conduct. But this was not his only motive*
He had every thing at stake himself. He was most deeply inter*
ested. All those acts of tjrranny and oppression, which he com-
mitted: the violation of the constitution, the prostration of the
judiciary, the arbitrary imprisonment and transportation of indi-
viduals, are to be justified, by such testimony, against the gentie-
man for whom I am now concerned. Would lie not, when thus
interested, procure testimony in so garbled a nate, that he would
be able to prevent the disclosure of the whole truth on the cross-
examination of the witnesses ?
Then, sir, having shown that all these acts had a tendency to
obstruct and divert the pure stream of justice, let us see what
were the immediate and direct acts of general Wilkinson* He in-
vites Knox to his own house* Serjeant Dunbaugh told hiai that
he had invited him. Dunbaugh was surprised Chat this great god
of New-Orleans, who trampled on their rights, and who confined
and transported suspected persons, should condescend to con-
verse with such a man as Knox. He thought that it would be an
intrusion for such a man as Knox to approach so august aQd sacred
345
a presence. Knox at first declines going; but afterwards goes*
Wilkinson invites him to take a seat, and began by asking him if he
knew Dunbaugh ; not that he really wished to know any thing
about Dunbaugh, whom he already knew well, and concerning
whom he knew it was probable that Knox knew nothing; but he
used it as an introduction. He then proceeded in an insinuating
manner, about his coming down the river. " Have you got your
money yet?" *' No." ^ How much is due you?" " One hundred,
or one hundred and fifty dollars." " Well, I can oblige you with
as much money myself." Kind affectionate man ! What was all
this for? To make interest with Knox, and to induce him to favour
his views. ** Well, what did you Jcnow in all your trip coming
down ?" Knox answered, that this was not the business he came
on* He wants Knox to show him all he knew, and offers him one
hundred or one hundred and fifty dollars as a bribe* It was a
direct attack on the hopestv of the man ; to be sure, it was done
very smoothly ^ as general Wilkinson does every thing, when he
chooses. A charming opportunity of getting one hundred and
fifty dollars, for only telling a few lies!
Mr. Mac Rae. I hope the gentleman does not mean to in-
sinuate, that general Wilkinson solicited him to say an untruth;
there is no evidence whatsoever to that effect.
Mr. Martin. I state facts, and insist that its direct tendency
was to get him to swear to what was untrue. I do not say, that
general Wilkinson said, in downright plain terms, ^^^ I will give
you one hundred andjijty dollars for telling what is untrue/*^ but
that the direct tendency of his conduct was, to induce him to
swear to a falsehood, if he were capable of such baseness; and
Knox declares, that the offer was made in such a manner, that he
considered it as a bribe.' He begins again to ask him about hb
affairs; he takes pen, ink, and paper, and no^es down what he
said ; but so differently from the real meaning of Knox, that he
disapproved of it, and would not proceed further.
The next thing we hear is, that he receives subpcenas, to fill
up the names of the witnesses. That he requests lieutenant
Gaines to find out Knox and summon him; and that he did sum-
mon him under a military order. When summoned, did Knox at-
tempt to refuse to come hither? He was willing to com£, and
made no other objection, except that the notice was too short;
that in his situation, he was not prepared to set off on a journey
of twelve hundred miles, and that he had no money, but expect-
ed to get some soon, and then he would come. He only refused
on account of his want of preparation, and of money. Was this
criminal in poor Knox? Because he does not wear a sword and
epaulets, and wants the means to enable him to come, he is to be
treated as a felon! (It was not then known that the military chest
was to be drawn upon, for the purpose of hiring witnesses to
Vol. I. 2 X
348
jeact, he was as free from his authority as deputy marshal^ as I
am; (and God knows what I should have been if I had been
then at New-Orleans,) and yet lieutenant Gaines told us, that
he was so much under the command and in the power of Wil-
kinson, that if he had ordered him to put Knox in irons he
would have done it. What sort of civil authority was it, by
which a military officer was employed to bring the witness to
this court, and that officer bound to put him in irons if his ge-
neral ordered it? Was it hot under that authority that he was
brought round without a shirt, except a borrowed one? These
are the methods by which testimony is to be obtained! Instead
of using the legal means of subpoena and attachment to obtain
evidence, witnesses a^e thus illegally forced to come and give
testimony in a courjt o^ justice! Has not this a direct tendency
to destroy the purity of trials?
But it is said, that this court has no right to take cognisance
of the offence, because it happened at New-Orleans. If general
Wilkinson, after having committed this offence, had not come
hither, this court could punish him, the first time it could
find him within its Jurisdiction for affecting a cause depend-
ing here* His interfering with the pure principles of the admi-
nistration of justice was a contempt of the court. It is a prin*
ciple of law, diat every interference with the administration of
justice is a contehipt of the court, and punishable wherever
its process can reach. Why is it improper and punishable
by attachment to insult a judge sitting in court? Because it
tends to intimidate him and prevent an impartial judgment.
Why are publications in news-papers concerning any cause de-
pending in a court prohibited by law ? (This has been lately
done in this very place.) Because it tends to make impres-
sions unfavourable to one of the parties, and its immediate
tendency is, to obstruct the pure sources and channels of jus-
tice. Most of these things had happened at New-Orleans; and
the offence was incipient there, but was not completed till they
arrived here. It was a continued act. Knox wished, but was not
permitted, to come on shore to get clothes, and not to be
brought into a court of justice like a dirty beast.
But Serjeant Dunbaugh went on shore with him, confessedly
to prevent him from missing his way, but in reality because
they did not choose to trust him alone; so that he still was con-
fined, for they would not trust him by himself. The conduct of
general Wilkinson in the first movement was most artful. He
asks him, ^^ Why Mr. Knox, are you not afraid to appear be-
fore me?" Why should he be afraid of him, unless he referred
to his military despotism? for he had nothing to do with him;
and as to his being with colonel Burr, it was the civil magis-
tfate that he should have been •afraid of: he could not be afraid
349
of WSkinson, for any thing of this kind; but he might fear to
be imprisoned and transported like others, contrary to law
and justice.
But the gentleman has said, that there was no danger in the
union of the civil with the military character in one person;
and asks us if the president of the United States have not those
powers blended in him ? What civil authority has the presi-
dent? It is much circumscribed. He must apply to a magis-
trate before he can arrest any person suspected of any crime.
He is not a conservator of the peace, though he js commander
in chief of all our troops, (which are not many.) He has nothing
to do with the civil, that is the judicial authority; yet this w the'
inference, that the civil and military authority were united in
the president.
We have been told by the gentlemen, that " the court had
shown great indulgence towards us, lest it should be cen-
sured, and not for the sake of doing justice.'' I took it down
from his mouth as he spoke.
Mr. Mac Rae denied positively that he had ever said so.
Mr. Martin insisted that he had taken it down from his
mouth as he had spoken the words.
Mr. Mac Rae replied, that he had taken it from his ow4
head.
Mr. Martin.—*! dare say the gentleman has forgotten it;
his mind having been occupied by great things: by general
Wilkinson. Sir, he said, that great indulgence had been
ranted to colonel Burr, for which he complimented the court.
wonder if he will recollect another thing that he said, that
we wished to imprison all the people for the sake of Aaron
Burr, while he was stalking through the streets. I cannot help
congratulating the gentleman, that he may now walk at large,
without having his eyes oflFended by seeing Aaron Burr at /i-
But the gentleman said, that unusual mildness^ had been shown
to colonel Burr. Persons have been tried for treason before in the |
United States. John Fries was tried before that Jeffries Sa- '
muel Chase. Was the treasury of the United States thrown
open and lavished to employ other counsel, in addition to the
attorney for the United States, to prosecute? No persons were
then employed to forestal the truth, by taking ex parte affidavits;
and Mr. Rawk^ the attorney for the United States, who prose-
cuted according to general usage, without any aid, was a man
whose mildness and benignity resembled an angel of mercy; and
the United States sent for no other witnesses than those sum-
moned in the usual course. But this trial took place ^^ in the
350
days of terror^^ vxaitv that old dotard John Adams. Let tt8
contrast it with the proceedings under the enlightened reign of
philosophy and philanthropy. Money has been taken out of the
treasury to employ two eminent lawyers to aid in the prosecu-
tion; compulsive affidavits have been taken; affidavit-men em«-
ployed to take them, and witnessess brought by force, without
relying on the process of the court as sufficient*
Mr. Martin concluded, by expressing his firm persuaston,
that the whole transaction was military ^ and contrived by gene-
ral Wilkinson; that it was clearly a contempt of the court, aad
that he hoped he would be punished for it by an attachment.
The court then adjourned till to-morrow morning, at nine
oMock.
Friday, June 26th, 180/.
The court met about nine o'clock, and, about ten o'clock, th6
grand jur}^ entered, and Mr. Randolph, their foreman, presented
ten inaictments, found true bills; that is, one indictment for trea^
son, and another for a misdemeanor, against each of the foU
lowing individuals, viz. Jonathan Dayton, John Smith, Comfort
Tyler, Israel Smith, and Davis Floyd.
The Chief Justice then made a short address to the grand
jury, expressed in elegant and appropriate terms; in which he
complimented them upon the great patience and cheerful atten-
tion with which they had performed the arduous and laborious
duties in which they had been so long engaged; and concluded,
by discharging them from all further attendance.
The court then adjourned till twelve o'clock. As soon as it
met again,
Mr. BoTTs requested the court to remove Mr. Burr from the
public gaol, to some comfortable and convenient place of con^
finement. He depicted in very strong terms the miserable state
of the prison, where he was then confined. The grounds of this
motion are to be found in the following affidavit made by some
of Mr. Burr's counsel, and laid before the court :
We, who are counsel in the defence of colonel Burr, at the suit
of the United States, beg leave to represent to the court, that in
pursuance of our duty to him, we have visited him in his confine-
ment in the city goal: that we could not avoid remarking the
danger, which will most probably result to his health, from the
situation, inconveniences and circumstances attending the place
of his confinement; but we cannot forbear to declare our convic-
tion, that we ourselves, cannot freely and fully perform what we
have undertaken for his defence, if he remain in the gaol afore-
said, deprived, as he is, of a room to himself; it being scarcely
possible for us to consult with him upon the various necessar>'
351
I
I occasions which must occur, from all which we believe, that he
* will be deprived of that assistance from counsel^ which is given
to him by the constitution of the United States; Unless he be re*
moved.
EDMUND RANDOLPH,
JOHN WICKHAM,
BENJAMIN BOTTS.
Sworn to in open court, by Edmund
Randolph, John Wickham, and
Benjamin Botts, esquires. June
25th, 180r.
William Marshall, Clerk.
The counsel for the prosecution were perfectly silent on the
motion.
After a long and desultory argument by Mr. Burr's counsel
the court determined that the prisoner should be removed to his
former lodgings near the capitol, provided they could be made
sufficiently strong for his safe keeping, being of opinion, that the
act of congress authorised it, on the foregoing affidavit, to
make the order of removal.
Mr. Latrobe, surveyor of the public buildings of the Uni-
ted States, was requested to inspect them; and upon his report
the court passed the foUov^ing order:
Whereupon, it is ordered, that the marshal of this district, do
cause the front room of the house now occupied by Luther Mar-
tin, esq. which room has been and is used as a dining roorn^
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 padlock. 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 open-
ing 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.
Mr. Hay.— My only wish is, that this prosecution should be
regularly conducted. Is it not the usual practice to read the in-
dictment first and then move for the venire ?
Mr. Burr.— -I have been furnished with a copy of the in-
dictment; I have perused it; and I am ready to plead not guilty
to it.
352
Mr. WiiLT.— The usual form requires the actual arraignment
of the prisoner; however the court may dispense with it, if it
think proper.
Mr. Hat was indifferent ahout the form, if the law could be
substantially executed. He supposed that a simple acknowledge
ment of the prisoner was sufficient, without the customary form
of holding up his hand.
Chief Justice. — It is enough, if he appear to the indict-
ment, and plead not guilty •
The clerk then^ read the indictment against Aaron Burr, for
treason against the United States; which specifies the place of
the overt act, to be at Blannerhassefs island^ and the time^ the
10th day of December 1806.
' When he had concluded, Mr. Burr addressed the court: *^ I
acknowledge myself to be the person named in the indictment:
I plead not guilty; and put myself upon my country for trial."
Mr. Hat then addressed the court on the venire that was to
try the issue between the prisoner and the United States. He
said that he thought there was an apparent incompatibility on this
point, between the twenty-ninth section of the act of congress called
the judicial act, and the eighth amendment to the constitution. It
was not certain that this act was in force. It was passed on the
24th of September 1789, and it provides that *^ In cases punish-
*^ able with death, the trial shall be had in the county where the
^^ offence was committed, or where that cannot be done without
*^ great inconvenience, twelve jurors at least shall be summoned
*^ from thence." Subsequent to this, a constitutional provision
was made, requiring that the trial shall be held before ^^ an im-
^^ partial jury of the state and district, wherein the crime shall
^^ have been committed." If then, this law be in force, there must
be twelve petit jurymen sumfnoned from Wood county, which
would make it impossible to have the trial at any early day. Here
then was the difficulty. The act was passed in 1789; the amend-
ments to the constitution were not ratified before the 15th De-
cember 1791. Does then the constitution repeal- this lawf Had
this eighth amendment formed an original part of the constitution,
no more would have been requisite than an impartial jury from
the state and district where the crime was committed. Had con-
gress passed this law, after the constitution was thus amended,
would it not have been a violation of it? Had it then any force at
this time \
Mr. Mac Rae quoted the 2 vol of the act of congress j&ag-tf
226, section 3, to show that the first law was considered to be in
force, notwithstanding this amendment to the constitution.
353
The Chiet Justice said, that he had nodifficuky on the sub-
ject. He saw no incompatibility between the law and the con-
stitution* He had no doubt that the law was still in force.
Mr. Burr had not considered the question maturely; but at
present saw no inconsistency between them; however, as this
law was most probably intended for the benefit of the accused,
he consented to waive the right.
Mr. Wirt.— *But there is another consideration, sir : Can con-
sent, take away the error f In England, in the celebrated case of
Alexander Kinloch and Charles Kinloch, he consented to draw
one of the jurymen, and afterwards pleaded this error in arrest
of judgment. After a long and elaborate argument, the court
rejected his plea, though there was a division among them.
Mr. Martin. — In that case, (or what is the same, Weddi*
bum^s case) there was but one dissentient judge.
Mr. Hay. — In the case of Hardy or Tooke a question was
made, whether the jury must be kept together during that long
trial i Though the prisoner at the bar consented to waive that
right, the court nevertheless instructed the sheriff to keep them
together.
Mr. BoTTs protested against the delay and inconveniences
which would ensue, from summoning the venire from Wood
county.
The Chief Justice believed that the provision was not abso-
lutely obligatory, if both parties would waive the right; but it was
as much so, if the United States insisted upon the right, as if the
prisoner himself had done so. If the United States insisted upon
its execution, the law must be executed, unless there were suffi-
cient evidence to satisfy the court, that such a measure would
violate the amendment to the constitution, which requires a trial
to be held by an impartial jury of the state and district; unless
both sides therefore consented, it was his opinion diat the court
was bound by this law.
Mr. Hay said, that he felt no disposition to delay the trial;
but he could not think of pledging himself to such a measure
without due deliberation. He would consult with the gentlemen
associated with him, on this point; and would inform the court
of the result.
The counsel for the prosecution then retired-from the bar, and
after a few minutes consultation returned. Mr. Hay informed
the court, that they could not assume the responsibility of con-
senting to such a proposition; the law seemed to be imperative
in its language, *^ twelve petit jurors at least nhail be summoned."
He must therefore request the court to direct a venire of twelve
men at least, to be summoned from Wood county.
Vol. I. 2 Y
354
The Chief Justice inquired what number should be sum*
moned? Diflfertnt numbers were named, and there appeared to
have been, a great difference in the practice. The common prac«
tice required forty-eight; and cases were cited, where not less
than sixt)', or seventy-two jurors had been summoned.
The court finally decided that the entry should be made for
a venire of forty-eight jurors ; twelve of whom, at least, were
to be summoned from Wood county.
A long conversation ensued upon the time when this process
was to be made returnable; or in other words, when the trial in
chief was to commence. Some contended that twenty days would
be sufficient to summon the venire from Wood county; others,
that thirty- five would be necessar)% The general opinion
seemed to be in favour of an adjournment till the first Monday
in August.
The Chief Justice said that he would have preferred the
shortest possible day in consideration of the expence and incon-
venience which would result from the delay; unless, indeed, more
important circumstances should hive recommended a longer pe-
riod; such as the necessity and advantage of obtaining witnesses
from distant parts of the countr}'. No time was determined
upon. The decision was postponed until to-morrow. The orders
were to be made out for summoning a venire, and the time of
the return to be left blank and filled up to-morrow.
Mr. Hay informed the court that the clerk was doubtful whe-
ther the parties last indicted, should be brought before the court,
by a capias or a summons. He should now move for a capias.
The Chief Justice replied there could be no difficulty on
the subject, for that a capias must certainly issue. The court
then adjourned.
Saturday, June 27th, 180r.
The Chief Justice delivered the following opinion on the
motion, for an attachment against general Wilkinson :
The motion now under consideration was heard at this time,
because it was alleged to be founded on a fact which might af-
fect the justice of the case in which the court is about to be en-
gaged, and because, while the bills were depending before the
grand jury, the court might, without impeding the progress of
the business, examine into the complaint which has been made.
. The motion is to attach general Wilkinson for a contempt of
this court, by obstructing the fair course of justice, with regard
to a prosecution depending before it. In support of this charge,
has been offered the testimony of Mr. Knox, who states a con-
versation between general Wilkinson and himself, previous to
his being served with a subpoena, the object of which was to ex-
tract from him, whatever information he might possess, respectf-
355
iog tbe expedition which "was the aubject of inquiry in this court;
and who states also, that he was anerivards summoned before
judge Hall, who examined Mm upon interrogatories, and com-
mitted him to gaol, whence he was taken by order of the deputy
marshal, who was a military, as well as civil officer, and put on
board the Revenue, in which general Wilkinson sailed, tor th^
purpose of being brought from New-Orleans to Richmond.
' That unfair practices towards a witness who was to give tes-
timony in this court, or oppression under colour of its process,
although those practices and that oppression were acted in ano^
ther district, would be punishable in the mode now suggested,
provided the person who had acted therein came within the ju-
risdiction of the court, is a position which the court is not dispo*
Bed to controvert; but it is also believed that this mode of pu-
nishment ought not to be adopted, unless the deviation from law
could be clearly attached to the person against whom the mo-
tion was made, and unless the deviation were intentional, or un-
less the course of judicial proceeding were or might be so affected
by It, as to make a punishment in this mode obviously conducive
to a fair and correct administration of justice.
The conversation which took place between gene]!;al Wilkinson
find the witness, on the arrival of the latter in New Orleans, was
manifestly held with the intention of drawing from him any in-
formation which he might possess, relative to the expedition
which was then the subject of inquiry. In this intention, there
was nothing unlawful. Government and those who represent it,
may justifiably and laudably use means to obtain voluntary com-
mumcations, provided those means be not such as might tempt
the person making them, to give an improper colouring to his re-
presentations, which might afterwards adhere to the^n, when re-
peated in court. The address stated to have been employed, the
condescension and regard with which the witness was treated,
are not said by himself to have been accompanied with any indi-
cations of a desire to draw from him more than the truth. The
offer of money, if with a view to corrupt, could not be too se-
verely reprehended. It is certainly a dangerous species of com-
munication between those who are searching; for testimony, and
the person from whom it is expected. But m this case, the court
' cannot contemplate the offer as being made with immoral views.
The witness had a right to demand from those he was ex-
pected to accuse, a small sum of money sufficient to subsist him
on his return to his home. He was asked, whether on receiving
this sum, his objections to giving testimony would be removed.
This was certainly a delicate question, byt it might be asked
.without improper motives, and it was pressed no further. This is
not shown to be an attempt to contaminate the source of justice,
and a consequent contempt of the. contt, in which it is admini-
stered..
356
The imprisonment of Mr. Knox, and the order for conveying
him from New- Orleans to Richmond were the acts of jud^' HalL
Whether his proceedings were legal or illegal, they are not
shown to have been influenced by general Wilkinson, and this
court cannot presume such to have been the fact; general WiU '
kinson therefore is not responsible for them. They were found-
' ed it is true, on an affidavit made by him; but there was no im-
propriety in making this affidavit, and it remained with the
judge to decide, what the law would authorise in the case.
All the subsequent proceedings were directed by the civil au-
thority. The agents who executed the orders of the judge
were indeed military men, who most probably would not have
disobeyed the commander in chief; but that officer is notrespon-
^ .sible, in this way, for having failed to interpose his authority, in
order to prevent the execution of the orders of the judge, even,
if those orders ought not to have been given.
Upon a full view of the subject, the case appears to have been
this. General Wilkinson was desirous that the testimony of the
witness should be obtained ; and aware of the accusations whick
had before been brought against htm, for the use he had made
of the-military power, he was desirous of obtaining the testimony
by lawful means, and therefore referred the subject to a judge of
the territory, under whose orders all subsequent proceedings
were taken. Whether the judge did or did not transcend the
limits prescribed by law, those ministerial officers who obeyed
his orders, cannot be supposed to have acted with a knowledge
that he had mistaken his power. Should it be admitted that this
would be no defence for them in an action to obtain compensa*
tion for the injury, yet it furnishes sufficient evidence, that no
contempt was intended to this court by general Wilkinson, that
he has not been guilty of any intentional abuse of its process,
or of any oppression in the manner of executing it.
It is said that captain Gaines the gentleman whom the marshal
appointed as his deputy for this particular purpose, had not ta-
ken the oath of office, and was therefore not legally qualified to
act in that character. However correct this observation may be
in itself, it does not appear to the court to justify an attachment
against general Wilkinson. The person who sees in the pos-
session of another, a commission as deputy marshal, and sees
that others are acting under that commission, ought not to be
subjected to a process of contempt for having made no inquiries
respecting the oath which the law requires to be taken.
The attachment will not be awarded because general Wilkin-
son cannot be considered as having controlled or influenced the ^
conduct of the civil magistrate, and because in this transaction
his intention appears to have been not to violate the laws. In
such a case, where an attachment does not seem to bd absolutely
#
-357
required by the justice due to the pai^icular individual against
iVhom the prosecution is dependhig;, the court is more inclined te
leave the parties to the ordinary course of law, than to empby
the extraordinary powers, which are given for the purpose of
preserving the administration of justice in that purity which
ought to be so universally desired.
The court made the following order on the postponement of
the trial*
Aaron Burr, late of the city of New- York, and state of
New- York, attorney at law, who stands indkted for treason^
was this day brought to the bar in custody oi the marshal of
this district, and thereof arraigned, and pleaded, Not guilty tm
the indictment, and for his trial put himself Upon God and the
country ; whereupon he is remanded to gaol. And as the trial
of the said Aaron Burr cannot be had in the county of Wood,
where the offence is alleged to have been committed, without
great inconvenience, it is ordered, that a venire facias issue,
to the marshal of this district to be directed, commanding him
to summon forty-eight fit persons qualified as the law directs,
twelve of whom, from the said county of Wood, to appear
here on the third day of August next, as a venire for the trial
of the said Burn
The court then adjourned till Monday next.
Monday, 29th June.
Mr. Hay laid the following order of the executive council
before the court:
In Council, June 29th, 1807.
The board being informed that an affidavit has been filed in
the circuit court of the United States, for the Virginia district,
which states, that the gaol for the county of Henrico and city of
Richmond is inconvenient and unhealthy, and so crowded with
state offenders and debtors that there are no private apartments
therein, for the reception of persons charged with offences
against the laws of the United States : it is therefore advised^
that the governor be requested to tender the said court,
(through the federal attorney of the district of Virginia) apart-
ments in the third story of the public gaol and penitentiary
house for the reception of such persons as shall be directed
under the authority of the United States to be confined therein.
Extract from the Minutes.
Daniel L. Hylton, Clerk of the Council.
The following was the order of the court on this subject:
^^ Which tender the court doth accept for the purpose above
mentioned.'' .
S58
'JPhe final decision of the motion to comniit Aaron Burr to
the penitentiary was postponed till to*morrow«
Tuesday, June 30th.
After the court met, the motion to commit Aaron Burr to
the penitentiary was renewed.
It was objected to by his counsel on the ground, (and an af-
fidavit was made by them to the same effect) that in so impor*
tant a case, it was essentially necessary for the most uninter-
rupted intercourse to subsist between the prisoner and his
counsel ; but that the distance of the penitentiary, combined
with their own professional avocations, would necessarily nar-
row and interrupt this intercourse. It was also said, that by
particular regulations of the penitentiary, the custody of- the
prisoner woidd be transferred from the marshal to the super-
mtendent; and'that the communications of the prisoner with
his counsel would be limited to the very same short period
which was allowed to the other visitants; that is, from eleven
io on^ o'clock*
The attorney for the United States repelled these objections*
The Chief Justice said, when there was a public gaol not
unreasonably distant or unfit for the reception of the prisoner,
and when the court was called upon on the part of the United
States to commit a prisoner to its keeping, that he conceived
himself bound to comply with the requisition; that when he
had given the order for his removal from the gaol to his own
lodgings, it was under an expectation, that the trial would be
prosecuted immediately, and that the intercourse between the
prisoner and his counsel would be necessarily incessant; but as
a postponement had taken place, such an intercourse would not
be absolutely necessary ; under such circumstances therefore,
he should direct the removal of the prisoner to the penitentiary,
if he were still to continue in the possession of the marshal,
and if his counsel were to have a free and uninterrupted access
to him*
Some difficulty having thus occurred on these points, the
executive council was immediately convened. In a short time
the following letter was submitted to the court:
Council Chamber, June 30th, 1807*
Sir,
In pursuance of an advice of the council of state, I beg leave,
through you, to inform the circuit court of the United States \
How sitting, that any persons who may be confined in the gaol
and penitentiary house, on the part of the United States, will
b'e considered as in the custody, and under the sole control of
359
the manhal of the distiict; that he will have authority to admit
any person or persons to visit the confined that he may think
proper; and that he will be authorised to select for the purposes
aforesaid, any apartment in the penitentiary, now unoccupied,
that he may deem most conducive to safety, health and con-
venience*
I am, with great respect.
Sir, your obedient servant,
George Hay, Esquire* Wm. H# CABELL.
The court then came to the following order:
In consequence of the offer made by the executive of apart*
ments in the third story of the penitentiary and state prison,
for persons who may be confined therein under the authority
of the United States, and of the foregoing letter from the go-
vemor of this commonwealth, it is ordered, on the motion of
the attorney for the United States, that so soon as the apart-
ments in the third story of the public gaol and penitentiary shall
be fit for the reception and safe keeping of Aaron Burr, that
he be removed thereto and safely kept therein by the marshal,
until the second day of August next, when he shall be brought
back to the prison where he is now placed, there to be guarded
in like manner as at present, until the further order of the oourt«
CITY OF RICHMOND,
Monday, August 3d, 1807.
On this day the circuit court of the United States for the
fifth circuit and district of Virginia was held according to
adjournment.
Present the Chief Justice of the United States:
George Hay, William Wirt, and Alexander Mac Rae,
esquires, counsel for the prosecution.
The prisoner was brought into court from his apartment
near the Swan tavern, to which he had been removed on Sa-
turday.
Edmund Randolph, John Wickham, Benjamin Botts, John
Baker, and Luther Martin, esquires, appeared as his counsel.
The court assembled at twelve o'clock. An immense con-
course of citizens attended to witness the proceedings of this
important trial.
Mr. Hat observed, that he could take no steps in this busi-
ness until he had ascertained, whether the witnesses summoned
•n die j^art of the United States were present; he therefore re*
360
Rested, that their names might be called over: they were more
than one hundred in number. Their names were accordingly
called in the following order :
*Thomas Truxtun, ^Stephen Decatur, *BenjaminStoidert»
*WiUiam Eaton, ^WiUiam Dimne^ *Erick Bollman, *Pcter
Taylor, *Jacob Allbright, *Charles Willie, *John Graham,
*Samuel Swartwout, *Julien Dupiestre, *P. H. M. Prevoat,
Israel Miller, *Samuel Skounten, *George Morgan, *John
Morgan, * 7% oma* Morgan^ * Nicholas Perkins^ * Robert Spenccy
^George Harris^ *Cyrus Jones, ^Thomas Peterkin, Elias Glo-
ver, *Simcon Poole, ^Dudley Woodbridge, *David C, Wal-
lace, ^Edmund B* Dana, James Reid, ^John G» Hender-
son, ^Alexander Henderson^ ^Hugh Phelps^ Jacob Dunbaugh,
^Chandler Hndsley^ ^John Mulhollon, * James Knox, *1Villiam
Love^ David FisAy^Thom^s Hartley, ^ Stephen S. Welch^*y antes
Kinney^ *Samuel Moxley, ^Edmund P. Gaines, ^Ambrose D.
Smith, George Peters^ Abner L. Duncan, Lewis Kerr, John A.
Fort, *Benjamin H. Latrobe, Cowles Meade, Thomas Fitz-
patrick, Thomas Butler, Robert A. New, Thomas T. Davis,
Silas Dinsmore, Owen Aston, William Davis, E. Kibby, The-
odore Brightwell, John Callier, Dr. Bennett, Earl Sproat, Ro-
bert W Jlace, Walter Putnam, John Dana, Alexander Ralston,
Mrs. Vanhome, Henry Jacobs, Ransome Peale, Hamlin Hicks,
Phelou' Wooster, John Blair, James M'Dowell, Samuel N,
Lucke. Stockley D. Hayes, Samuel W. Butler, Walter C.
Davidson, John Barry,Thoma8 H. Gushing, Nathaniel Evans,
Jacob J*t:k8on, William Piatt, William -White, Jerard Brooke,
Morgan Nevill, Thomas Callis, Mr. Peterson, Lieutenant
Swearingen, Mr. Weaver, colonel Osmund, major M. Porter,
J. B. Walback, Mr. Vanhome, Dr. Carmichael, Dr. Alston,
colonel P. Read, John Wilkins, Stephen Woolberton, David
M'Key, Hugh Allen, William Davis.
[Those were present whose names are printed in italics: the
rest were absent. Such as have an ^ prefixed to their names
were recognised at the former meeting of the court. The rest
tvere not. Of course, all those whose names are placed nfler
that of Benjamin H. Latrobe have been subpcenaed since the ad-
journment of the court.]
Mr. Hay begged leave to mention, that he had nothing more
to submit to the court this day. There were m^ny of the wit-
nesses, of whose places of residence he was ignorant: several
had not appeared ; many had been merely pointed out to hiAi
by the attorney general of the United States. He observed,
that, therefore, he had not yet been able to furnish colonel.
Burr with a list of the witnesses, and a statement of the
places of their residence, as the law requires; that, as many,
of those, who had been summoned and recognised,* had
failed to appear, he was not ready to proceed with the
561
(rial immediately. He also informed the court, that a list
of the venire had been delivered on Saturday to colonel
Burr, but had since been discovered to be inaccurate. It be-
came therefore necessary «(w act of cong;ress having directed
this to be done at least three days before the trial) to deliver a
correct list on this day ; and of course, the trial would be post-
poned until the requisite time should have elapsed.
The Chief Justice inquired then to what day it would be
proper to adjourn the court.
Mr. Hat could not positively state by what day he should
be able to prepare his lists.
Mr. Burr observed, that it was not very probable, that he
should avail himself of any privileges which he might derive
from any delay which had occurred in not furnishing him with
the list of the jurors ; and therefore the court might adjourn it-
self to any day, which ,was convenient to the attorney for the
United States. Neither was it probable, that he should avail
himself of any objections, which might be made to any incor-
rectness in the names of the jurors, or the places of residence,
as stated in the list; unless certain circumstances might occur
after the production of the list, on which he ought to found ob-
jections to it.
A short conversation then ensued upon the day of adjourn-
ment, when Mr. Burr observed, that as it ilould seem, in some
measure, to depend upon his own consent, he should not hesi-
tate to consent to an adjournment, provided it did not extend
farther than Wednesday. Mr. Hay had no objection to that day.
Mr. Hay observed, that it might be proper to have the
aames of the jury called over, though not to impanel them at
present. It would be premature now to impanel them, as the
opposite counsel had not yet possessed a sufficient time to ex-
amine the list, and as the witnesses for the United States were
BOt present.
The names of the jtu-ors were accordingly called.
The names of the jurors summoned from Wood county to
appear before the judges of the court of the United States, for
the fifth circuit in the Virginia district, on the 3d day of Au-
gust, 1 807, for the trial of colonel Aaron Burr, are
Hezekiah Bucky, Jacob Beeson, James G. Laidly, Wil-
liam Prince, James Henderson, Nimrod Saunders, James
Compton, Thomas Creel, Hamilton Morrison, Anthony
• Buckner, Yates S. Conwell, David Creel.
Wood county, district of Virginia,
Joseph Scott, Marshal, V* D.
Vol. L 2 Z
862
List of the petit jurors for May circuit term, 1807, continued*
Names of ihe jurors summoned from the body of the district
of Virginia for the trial of cojLonel Aaron Burr:
John HoraceUpshawof Essex county, William Pope of Pow-
hatan, Peyton Randolph of Richmond city, John Bowe of Han-
over, John Roberts / of Culpeper, Joshua Chaffin of Amelia^
Jervis Storrs of Henrico, Miles Selden of ditto, Lewis True-
hart of Hanover, William Yancey of Pitts> Ivania, Thomas
Prosser of Henrico, John Staples of Albemarle, Edward C.
Stanard of Albemarle, Richard B. Goode of Chesterfield, Na-
thaniel Selden of Henrico, ^Esrne Smock of ditto, William
Wardlaw of Richmond city, Richard E. Parker of Westmore-
land, John W. Ellis of Hanover, Thomas Starke of ditto, Wil-
liam White of ditto, William B. Chamberlaine of Henrico,Da-
vid Lambert of Richmond city, Randolph Harrison of Cum-
berland, William Hoomes of Caroline, Overton Anderson of
Richmond city, Hugh Mercer of Spottsylvania, David Bullock
of Richmond city, Jerman Baker of Cumberland, ^Edward
Carrington of Richmond city, Robert Haskins of Chesterfield^
William R. Fleming of Goochland, George W. Smith of Rich-
mond city, Armistead T. Mason of Loudon, Dabney Minor of
Albemarle, William M^Daniel of Stafford.
Joseph Scott, Marshal, V. D.
[The two whose names are marked with an ^ were absent :
all the rest were present]
Mr. Hay then requested the marshal to deliver, as soon as
possible, a correct copy of this list to the opposite counsel*
Mr. Peyton Randolph inquired, whether this were a proper
opportunity for any man on that panel to state his objections
to the service. ^
The Chief Justice answered, that it would be better t^
waive any objections, until the jury were about to be impaneled.
Mr. Hay wished, such of the witnesses, as had not ap-
peared before, to be recognised as the others had been. And
accordingly Messrs. Duncan, Nevill, McDowell and Peters,
were recognised by the clerk.
The deputy marshal was then about to adjourn the court,
when Mr. Burr recalled to the recollection of the court, the
motion which he had made, on a former occasion, for a sub-
poena duces tecum addressed to the president of the United
States. That motion had been pardy complied with. He wish-
ed to know of the court, whether it were not a matter of right
for him to obtain a subpoena duces tecum* If it were not, he should
then lay a specific motion before the court.
The Chief Justice did not believe it to be the practice in
i
363
Virginia to obtain such a subpoena upon a mere application to
the clerk. The motion must be brought before the court itself.
Mn Hay said, that he would say nothing on this subject,
until he understood the object of the application: that if it were
to obtain the letter which was not formerly furnished, he would
inform the opposite counsel, that he had it now among his pa-
pers, and was ready to produce it.
Mr. Burr. — That is one object of the application. Another
is, to obtain a certain communication from general Eaton to
the president of the United States, which is mentioned in his
deposition.
Mr. Hay said, that he was not certain, whether he had that
communication, but believed that it was among his papers. If it
were there, he would certainly produce it. *
Mr. Burr. — But if, after a search, the gendeman find that
he has not that paper, will he consent out of court, to issue
a subpcena to the president of the United States, imder the quali-
fication I have meotioned ? I wish not at the present exigency,
to derange the affairs of the government, or to demand tl\e pre-
sence of the executive, officers at this place. All that I want, are
certain papers.
Mr. Hay said, that he could not consent to it; he would
rather that a regular application should be made for it to the
court.
Mr. Burr. — ^Then,.sir, I shall move for a subpcena duces tecum^
to the president of the United States, directing him to attend
' with certain papers. This subpcena will issue as in the former
\ instance. I shall furnish the clerk with the necesslky specifica-
l tion of the paper, which I require.
\ The court was then adjourned till Wednesday, twelve o'clock.
Wednesday, August 5th, 1807.
I The court met according to adjournment.
Present, John Marshall, chief justice of the United States.
/ Mr. Hay requested that the names of the witnesses might be
ealled over, who had not appeared on Monday, and of whose
arrival he was not yet informed.
The following wimesses answerei to their names : Chaiies
Willie, John Graham, Samuel Swartwout, Jolien Dupiestre, P.
H. M. Prevost, Israel Miller, WiUiam Eaton, George Morgan,
Cyrus Jones, Simeon Poole, Dudley Woodbridge, John G. Hen-
derson, Samuel Moxley, Ambrose D. Smith, John A. Fort,
and Hugh Allen.
I
-I
364
•
The names of the witnesses being called over, Mr. Hay observ-
ed, that the court would perceive that the number of the witnesses
attending, was greater than it had been on Monday; that he pre-
sumed the whole of them would be here in a few days ; that he
had no doubt they would go into the trial during the present term;
but that he could not now furnish the accused with such a list of
the wimesses as was required by law; for though he knew their
surnames, yet he was ignorant of the christian names of many,
and their places of residence. He was not certain to what da3r
the court might properly adjourn.
Chief Justice. — It will make no sort of difference to the
court, whether it adjourn from day to day, or to a certain day.
After a short conversation between the counsel on both sides,
it was agreed that ^ list should be furnished of the witnesses,
and of their places of abode, so far as they had been ascertained;
and that a postponement should take place until Friday.
Mr. Hay proposed an arrangement, as to the mode of con-
ducting the trial, the object of which was to save time. He said,
that the course pursued in Great Britain ogr'such occasions^ is
for the counsel for the prosecution, to open his case and examine
all his witnesses, betore any thing is said on the other side ; for
the prisoner's counsel, afterwards, to state the case on his part;
to proceed to examine his witnesses, and to make such observa-
tions upon the whole of the testimony as he should think proper;
and for the counsel for the prosecution to terminate the argu-
ments by a reply. This he said, was a convenient and expedi-
tious method. But, in Virginia, the practice is as follows : the
attorney for the United States, or for the commonwealth, states
the case onjhe part of the prosecution, and the counsel for the
accused, also makes a statement on his part; after which the
evidence is gone through on both sides; beginning with the
witnesses against the prisoner. This being dope, the counsel for
the prosecution commences the argument, is answered by the
counsel for the prisoner, and then concludes the debate. Mr.
Hay bbser\'ed, that this mode was much more tedious than that
which prevails in Great Britain; and therefore ought particu-
larly to be avoided in conducting the trial of Aaron Burr, in
which the number of counsel employed, and of witnesses to be
examined, is so great; especially as other trials equally tedious
are about to take place ; Herman Blannerhasset being now in
custody, and Jonathan Dayton, known to be in this neighbour-
hood.
Mr. WiCKHAM wished time to consider the subject; not be-
ing prepared to determine whether the counsel for colonel Burr,
would accede to the proposal ; as this was a new mode of pro-
355
ceeding, to which they were not accustomed, they wished to
consult their client, who, on this day, was not in court.
Mr. Hat said, he did not think this a matter of consent; the
court ought to fix the practice.
The Chief Justice observed, that it would be better to bring
on this question on Friday; since gentlemen, in the mean time,
might settle it among themselves; saying, moreover, that he
should feel a difficulty in departing from the settled mode of
practice in this country; though he thought the English mode
better than ours. The best mode appeared to him to be this :
that the case should be opened fuUy, by one of the gentlemen on
the part of the United States ; then opened fully, by one of the
counsel on the other side; that the evidence should next be gone
through; and the whole commented upon, by another of the gen*-
demen, employed by the United States; who should be answered
by the rest of the attorneys for colonel Burr; and one only, of
the counsel for the United States, should conclude the argument.
This mode was not approved of by Mr* Hat, as there were
to be several trials ; he feared that it would impose too much la-
bour on the counsel for the prosecution.
Some further conversation passed, but no arrangement was
determined on.
The court adjourned till Friday, twelve oVlock«
Fridat, August r, 1807.
The court met according to adjournment.
Present, John Marshall, chief justice of the United States,
and Ctrus Grifein, judge of the district of Virginia.
The witnesses were again called over, and several who had
not been present before, appeared, and were recognised to attend
until discharged by the court.
The counsel for the United States, however, not being as well
prepared to go into the trial, as they expected to be, (many of
their wimesses being still absent) the trial was farther postponed,
and the court adjourned until Monday next, at twelve o^clock.
In the course of this day, a difficulty was suggested by major
Scott, the marshal of the Virginia district, as arising out of the
order of the court, by virtue of which colonel Burr had been re-
moved from the penitentiary house, to his present lodgings. He
stated, that he had been informed from good authority, that the
secretary of the treasury had declared, that he would not allow
his charge of seven dollars per day, for the guards employed for
the safe-keeping of the prisoner; and, therefore, he might lose
(
366
that sum, which he had hitherto been advandng out of his own
pocket.
The Chief Justice declared, the firm conviction rf the courts
that the order, heretofore made, was legal and proper; that the r
payments made in pursuance thereof, would be sanctioned b7
the court, and ought to be allowed by the secretary of the trea-
sury. He could not believe that the secretary would finally dis-
allow thbse items in the marshal's account. But as the officer of
the court ought not to be subjected to any risk in obeying its di-
rections; and, if the secretary' should rifuse to allow him a credit
for the money paid, the court had no power to compel him to do
so; and the situation of the marshal was such, that he dared not
enter mto a controversy with the secretary; the court was dis-
posed to rescind the order, unless some arrangement could be '
made by rolonel Burr and his counsel, for the indemnification of
the marshal.
Colonel Burr declared, that an offer had already been made
on his part, to indemnify the marshal, ^d that he was still ready
and willing to give him satisfactory security, that the money
should be paid him, in case the secretary of the treasury should
refuse to allow the credit.
Some desultory conversation ensued, but nothing positive was
agreed upon; but it appeared to be understood, that security was
to be given to major Scott, and that colonel Burr was to remain ^
in his apartment near the Swan Tavern.
Monday, Augtfst 10th, 1807.
The court met according to adjournment.
After the court met, Herman Blannerhasset was brought into
court.
The following gendemen appeared, and were recognised.
Return J. Meigs, Maurice P. Bellnap, Charles Duvall, James
Taylor, Tunis , Bennett Cook, Hezekiah Lewis, and G.
B* Vanhome.
Mr. Wirt moved the court to discharge Dr. Wardlaw, one
of the venire. His wife was in extreme danger, and required the
assistance of a sea voyage. The vessel would sail to-morrow.
Chief Justice. — Is the court to understand that there is ne
objection to this motion?
Mr. Burr. — If the remark be addressed to me, sir, I can
only say, that I shall remain passive. Dr. Wardlaw was then
dbmissed.
Mr. Mac Rae also moved the discharge of Mr. Randolph
Harrison, whose extreme indisposition was attested by a certifi-
367
cate from Dr. Adams. Mr. Harrison was accordingly dismis-
sed in the same manner.
Mr. Hay moved, that Herman Blannerhasset be arraigned
for treason ; which,
Mr. BoTTs opposed, on the ground that he had not been fur-
nished with a copy of the indictment three days jre viously. After
some desultory conversation on this circumsance,
Mr. BoTTs requested that Mr. Blannerhasset be reconveyed
to the penitentiary, as h^ was extremely indisposed, and the
heat nearly overpowered him. No opposition was made, and
Mr. Blannerhasset was accordingly reconducted to his prison.
At Mr. Hay's request, the panel of the jury was called over
by the deputy marshal, and also at Mr. Burr's request, the list
of the witnesses, whom he had subpoenaed, for the purpose of
investigating the qualifications of some of the venire.
Mr. Hay read a certificate from Dn Upshaw, stating that
Mr. James Henderson is sick of a bilious fever, and incapable
of attending.
Mr. Mac Rae then read a certificate from Dr. Greenhow,
showing, that David Bullock, esq. one of the venire was prevent-
ed by ^indisposition, from discharging his duties. Mr. Bullock
was accordingly excused.
«
The clerk informed Mr. Burr, that he was at liberty to'
challenge such of the venire as he might object to.
Mr. Burr begged leave to inform the jurors, who were with-
in hearing, that a great number of them may have formed and
expressed opinions about him, which might disqualify them trom
serving on this occasion. He expected that as they came up, they
would discharge the duties of conscientious men, apd candidly
answer the questions put to them, and state all their objections
against him.
The deputy marshal then summoned first, Hezekiah Bucky*
Mr. BoTTs.— We challenge you for cause. Have you ever
formed and expressed an opinion about the guilt of colonel Burr?
Mr. Bucky. I have no"t, sir, since I have been subpoenaed.
Question. Had you before ? .
Answer. I had formed one before in my own mind.
Mr. Hay wished, that the question of the opposite counsel
could assume a more precise and definite form. If this question
were proposed to this man, and to every other man of the pa-
nel, he would venture to predict, that there could not be a jury
368
detected in the state of VirgiDia; because he did not believe that
there was a single man in the state, qualified to become a jury-
man, who had not, in some form or other, made up, and declared
an opinion, on the conduct of the prisoner. The transactions in
the west had excited universal curiosity ; and there was no man
who had not seen and decided on the documents relative to them.
Do gendemen contend, that in a case so peculiarly interesting'
to all, the mere declaration of an opinion is sufficient to disqua-
lify a juryman? A doctrine of this sort, would at once acquit the
prisoner; for where is the jury that could try him? Such a doc-
trine amounts to this : that a man need only to do enough to draw
down the public attention upon him, and he would immediately
effect his discharge. Mr. Hay concluded with a hope, that the
question would assume a more definitive form; he should not
pretend to decide the form in which it should be proposed, for
that was the province of the court; it was a privilege to which
every court is entided; and one which the court had exercised
in the case of James T. Callenden
Mr. BoTTs considered it as a misfortune ever to be deplored,
that in this country, and in this case, there had been too gene-
ral an expression of the public sentiment, and that this generality
of opinion would disqualify many; but he had never entertained
a doubt, until the gentleman for the prosecution had avowed it,
that twelve men might be found in Virginia, capable of deciding
this question, with the strictest impartiality. He still trusted that
the attorney for the United States was mistaken; that the ca-
tastrophe was not completely fixed; and that every man in the
state had not pledged himself to convict colonel Burr, whether
right or wrong. He was not present at the trial of James T.
Callender; but all America had heard the question which was
then propounded to the jurj'men; and that was, whether he had
made up and expressed an opinion respecting the guilt of the
prisoner.
Mr. Hay said, that he would put Mr. Botts right as to matter
of fact. The court would recollect that on the trial of Callender,
the question was, not whether the jurymen had formed and ex-
pressed an opinion on that case generally; but on die subject
matter that was to be tried, and contained in the indictment.
The question then in the present case should be, have you for-
med and expressed an opinion -on the point at issue; that is,
whether Aaron Burr be guilty of treason? On the trial of Cal-
lender, the court would particularly recollect, that Mr. John
Basset having objected to himself, because he had read the libel-
lous publication, was actually overruled; because it was not on
the book itself, but on the subject matter of the indictment, that
he was ^called upon to say, whether he had ever expressed an
opinion?
(
369
Mr. Burnt declared, that there was a material distinction he*
tween that and the present case. Mr. Basset's acknowledging that
he had seen the book did not disqualify him from serving on the
jury; in the same manner, the person who had seen a murder
committed, would not be an incompetent juror in the prosecution
for that crime. But if a man pretended to decide upon the guilt
of a prisoner, upon mere rumour, he would manifest such a levity
and bias of mind, as would effectualiy disqualify him. Mr.
Bucky, however, has not yet come out completely with his de^
clarations. Let him be further interrogated.
Mr. Hat observed, that the question would sdll be too gene-
ral aud vague, if it were even to be " Have you expressed any
opinion on the treason of J^aran Burr?^' for the case stated in the
indictment was infinitely more specific. It was treason in
levying war against the United States at Blannerhasset's island.
Unless this particular allegation be proved, it defeats all the
other parts of the accusation; and it was, probably, on this point
that the juror had never made up any opinion.
Mr. Martin contended, that it was the duty of every jury-
man to come to the trial of any case with the most perfect im-
partiality; and more particularly one where life and reputation
were at stake; that it was a libel upon Virginia, a blot upon the
whole state, to assert, that twelve men could not be found to de-
cide such a case, with no other knowledge than what they had
picked up from newspapers: that there was a material distincdon
between this and Callender's case; the libel was a book in every
man's hand; but does any juryman in the present case pretend
to know the testimony on which this charge depends? The gen-
tleman proposes to ask the juryman, whether he have made up an
opinion on colonel Burr's treason? But it is extremely probable,
that most of them know not what treason is; and though they
may decide upon the guilt of colonel Burr, they may be igno-
rant, whether it come under the name and description of treason.
Mr. BoTTs quoted authorities in support of his opinion, but
they are not all inserted here, because the same question was
afterwards very fully argued, and many authorities cited. The
Trials of Smith arid Ogden in New- York, and the opinion of
judge Iredel,onthe J'rial of John Fries^ in Pennsylvania, were
particularly referred to.
The Chief Justice observed, that it might save some alter-
cation, if the court were to deliver its opinon at the present time;
that it was certainly one of the clearest principles of natural jus-
tice, that a juryman should come to a trial of a man for life, with
a perfect freedom from previous impressions; that it was clearlv
the duty of the ourt to obtain, if possible, men free from svl&i
Vol. I. 3 A
370
bias; but that if it were not possiUe from the very circumstances
of the case; if rumours had reached and prepossessed their
judgments, still the court was bound to obtain as large a portion
of impartiality as possible; that this was not more a principle of
natural justice, than a maxim of the common law, which we have
inherited from our forefathers; that the same right was secured
by the constitution of the United States, which entitles every
man under a criminal prosecution, to a fair trial by ^ an impar-*
tial jury/' Can it be said, however, that any man is an impartial
juryman, who has declared the prisoner to be guilty and to have
deserved punishment? If it be said, that he has made up this
opinion, but has not heard the testimony; such an excuse only
makes the case worse; for if the man have decided upon insuffi-
cient testimony, it manifests a bias that completely disqualifies
himself from the functions of a juryman. It is too general a
question, to ask whether he have any impressions about colonel
Burr. The impressions may be so light, that they do not amount
to an opinion of guilt; nor do they go to the extent of believing^
that the prisoner deserves capital punishment* With respect to
Mr. Basset's opinion, it was true he had read ^^ The Prospect
before Us;" and he had declared that it was a libel; but Mr.
Basset had formed no opinion about James T« CaUender's being
the author. It was the same principle in the present case. If a
juryman were to declare that the attempt to achieve the dis-
memberment of the union, was treason, it would not be a com-
plete objection or disqualificadon; but it would be the application
of that crime to a particular individual; it would be the fix-
ing it on Aaron Burr that would disable him from serving in this
case. Let the counsel then proceed with the inquiry.
Mr. BoTTs. — Have you said that colonel Burr was guilty of
treason?
Mr. Bucky.— No. I only declared that the man who acted
as colonel Burr was said to have done, deserved to be hung.
Question. Did you believe, that colonel Burr was that man?
Answer. I did, from what I had heard.
Mr. Hay.-— I understand then, that the question proposed
in CaUender's case is to be overruled?
Chief Justice. — My brother judge does not recollect whe-
ther it particularly went to the indictment or not.
Judge Griffin. — I think the question was, " relative to the
matter in issue." ^
Mr. Hay. — The very position that I have laid down.
Chief Justice. — The simple question is, whether th^ hav-
ing formed an opinion, not upon the evidence in court, but
« '
371
upon common rumour, render a man incompetent to decide
upon the real testimony of the case?
Mr. Wirt, Taddressing Mr. Bucky.) Did I understand you
to say, that you concluded upon certain rumours you had
heard, that colonel Burr deserved to be hung?
Mr. Bucky. — I did-
Question. Did you believe these rumours? Answer. I did.
Question. Would you, if you were a juryman, form your
opinion upon such rumours? Answer. Certainly ndt.
Mr. Mac Rae. — Did you form and express your opinion
upon the question, whether an overt act of treason had been
committed at Blannerhasset's island?
Answer. It was upon other rumours, and not upon that,
that I had formed an opinion.
Mr. Martin submitted it to the court, whether he could
be considered an impartial juryman.
The court decided that he ought not to be so considered and
he was accordingly rejected,
James G. Laidly stated, that he had formed and expressed
some opinions unfavourable to colonel Burr, that he could not
pretend to decide upon the charges in the indictment, which
he had not heard ; that he had principally taken his opinions
from newspaper statements; and that he had not, as far as he
recollected, expressed an opinion, that colonel Burr deserved
hanging; but that his impression was, that he was guilty. He
xvas therefore set aside*
James Compton being challenged for cause and sworn,
stated, that he had formed and expressed an opinion from
hearsay, that colonel Burr was guilty of treason, and of that
particular treason of which he stood charged, as far as he un-
derstood. He was rejected*
Mr. Burr observed, that as gentlemen on the part oi the
prosecution had expressed a willingness to have an impartial
jury, they could not refuse that any juryman should state aU
his objections to himself; and that he had no doubt, in spite of
the contrary assertions which had been made, that they could
get a jury from this panel.
Hamilton Morrison upon being called, said, that he had fre-
quently thought and declared, that colonel Burr was guilty, if
die statements which he had heard were true ; that he did not
know whether they were so ; but only thought Trom the great
clamour which had been made, that it might be possible that
they were true; that he had not passed any positive opinion;
nor was he certain that he had always qualified it by sayings
372
" if these things were true j" that he docs not recollect to havie
daid, that colonel Burr ought to b^ punished^ without stating
at the same time, " if he were guilty." Mr* Morrison was sus»
pendedfor Jurther examination.
Yates S. Conwell had formed and expressed an opinion,
from the reports he had heard, that colonel Burr must be
guilty of high treason* He was accordingly set aside.
Jacob Beeson declared, that he had for some time past
formed an opinion, as well from news-paper publications, as
from the boats which had been built on the Ohio, that colonel
Burr was guilty; and that he himself had borne arms to sup-
press this insurrection. He was therefore set aside^ as income
petent*
William Prince declared, he had nearly the same impres-
sions as Mr. Beeson ; that he too had borne arms ; as well on
Blannerhasset's island, as on descending the river, in search
of Blannerhasset. He was set aside in like manner.
Nimrod Saunders declared, that he had expressed an opi-
nion previously to his being summoned on the jury, that the
prisoner had been guilty of treason. He was therefore set aside
as incompetent.
Thomas Creel had no declaration to make, and was chal-
lenged for cause. Upon being interrogated, he stated, that he
had never asserted that the prisoner ought to be punished, that
he had said, that he was a sensible man; and if there were any
hole left, he would creep out of it; that he had conceived that
colonel Burr had seduced Blannerhasset into some acts that
were not right; that he had never positively said, that colonel
Burr was guilty; that he had said, that Blannerhasset was the
most blamable, because he was in good circumstances, and
well off in life; whereas colonel Burr's situation was desperate,
and that he had little to lose; that he had not said, that colonel
Burr had directly misled Mr. Blannerhasset, but through the
medium of Mrs. Blannerhasset; in short, that there was no
determinate impression on his mind respecting the guilt of the
prisoner.
The Chief Justice did not think, that this was sufficient to
set him aside, and suspended his case for further examination.
Anthony Buckner had frequently said, that the prisoner de-
served to be hung. He rvas therefore set aside.
David Creel had formed an opinion froni the statements im
the newspapers, and if these were true, the prisoner was cer-
tainly guilty. He had expressed a belief that he was guilty of
the charges now brought against him, and that he ought to be
hanged* He was therefore rejected.
373
Jurors from the body of the district*
John Horace Upshaw declared, that he conceived himself to
stand there as an unprejudiced juryman; for he was ready to
attend to the evidence, but that as he had formed opinions hos-
tile to the prisoner; f if opinions they can be called, which are
formed from newspaper testimony,) and had, he believed, fre-
quently expressed them; that he was unwilling to subject him-
self to the imputation of having prejudged the cause.
Mr. Burr. — ^We challenge Mr. Upshaw for cause.
Mr. Hay. — Then, sir, I most seriously apprehend that we
shall have no jury at all. I solemnly believe, Mr. Upshaw is
an intelligent and upright man, and can give a correct verdict
on the evidence ; and I will venture to assert, (whatever credit
my friends on the other side will allow to my assertion,) that
I myself could do justice to the accused; I believe that any
man can, who is blessed with a sound judgment and integrity.
We might ^ well enter at once a nolle prosequi^ if he is to be
rejected.
Mr. WiCKHAM. — Then according to the gentleman's doc-
trine, any honest man, no matter what his impressions may be,
is a competent juryman. Is this agreeable to the principles of
law? Does the gentleman mean to insinuate, that when we
object to a juryman, it is for his want of honesty? No, sir,
every man is subject to partialities and aversions ; which may
conscientiously sway his judgment. Mr. Upshaw does no
doubt deem himself an impartial juryman; but Mr. Upshaw
may be deceived.
After some desultory argument between 'Messrs. Hay and
Wickham, Mr. Wirt proceeded to ask Mr. Upshaw, whether
he had understood him to say, that notwithstanding the hostile
impressions he had taken up from newspaper reports, these
impressions had not received that determinate character which
might entide them to the name of opinions?
Answer. I have received impressions hostile to colonel Burr,
and have expressedthem with some warmth; but my impressions
have not been induced by any thing like evidence. They were
predicated on the deposition of general Eaton and the communi-
cations of general Wilkinson, to the president of the United
States. I had conceived that the prisoner had been guilty of
some criminal act against the public, and ought to be punished^
and I believe also, that I went on further to vindicate the con-
duct of those gentlemen who would appear as the principal
witnesses against him; and also of the government in the mea-
sures which it had taken to suppress his plains* After some
374
further and animated discussion on this pointy Mr. Upshaw's
case was suspended for subsequent examtJiation*
William Pope declared, that his impresssjons were nearly
the same with those of the gentlemen, who had preceded
him; that he h^d thought at first, from newspaper representa-
tions, that it was colonel Burr's intention to make his fortune in
the west by the settlement of lands; that when he had after-
wards understood that he had formed a union with Wilkinson
to proceed to Mexico he had regarded the prisoner's conduct
in such a light, that if he had proceeded to Mexico he would
have considered it as an excusable offence, but when he had
afterwards understood that there was treason mixed with his
projects, it was impossible for him to view his conduct without
the deepest indignation ; if these impressions could be called
prejudices, he trusted that he should always retain them; what
other sentiments could he feel against such a crime perpetrated
against the very best government on the surface of the earth I
But Mr. Pope declared that from his heart he believed, that
he could divest himself of these unfavourable impressions, and
give colonel Burr a fair and honourable trial. He would add,
that in pursuance of the spirit manifested by the constitution
which required two witnesses to an overt act of treason; he
should think it necessary, that the evidence for the United
4 ' States, should be so strong as to make the scale preponderate. '
' Mr. WicKHAM. — You will not misunderstand me, Mr. Pope,
^ when I ask you whether you have not been a candidate for your
county, and whether you be not now a delegate ?
Answer. Yes.
Question, tn canvassing among the people, have you not de*
clared, that the government had acted properly in commencing
this prosecution ?
Answer. Yes; I believe I have said generally, that I thought
colonel Burr was guilty of high treason. Mr. Pope was there-
fore set aside*
^Peyton Randolph declared, that it had never been his wish or
intention to shrink from the discharge of a public duty; but that
he had peculiar objections to serve on this occasion; one of
which only, he should state. He had been enrolled and was qua-
lified as a lawyer in. this court; and he would submit it to tlie
court, whether this did not exempt, if not disqualify him from
serving ?
^ Chxef Justice admitted Mr. Randolph's privilege, unless
there were an express interposition on the part of the prisoner, to
retain him and others of the venire who had privileges; for this
would call a conflicting privilege into operation.
375
Mr. Burr aaid, thftt he should be passive.
John Bo<ve did not recollect to have said, that the prisoner
was gnihy of treason; but of something hostile to the peace and
happiness of the United States. Upon being interrogated he ob-
served, that he was a delegate from the county of Hanover; that
there had been a competition at the last election; that he had
had occasion to speak at that time, of the views of the
prisoner; but had always done it cautiously; had never asserted
that he ought to be hung, but that he was guilty of' something
unfriendly to the peace of the United States. '
Mr. WiCKHAM. — You have said that the prisoner was guilty?
Answer. Yes.
Chief JuBTiCE.-*-Did you ever make up an opinion about his
levying troops and making war against the United States.
Answer. Yes : but I have never expressed it.
Mr. Burr.— Take the whole together, and it amounts to an
opinion of treason. Mr. Bowe has said^ that colonel Burr was
guilty; and of what? Of that which in Mr. Bowe's mind
amounts to the definition of treason. He was therefore set aside.
John Roberts had thought and declared, from the reports in
the public newspapers, that the prisoner was guilty of treason,
though he had no doubt, that his opinion might be changed by
the production of other testimony. He was set aside as incovu
petenU
Joshua Chaffin excused from indisposition.
7. Jervis Storrs observed, that the stat<j of his mind was like
that of the gentleman who had gone before hini (Mr. Bowe); he
was in the habit of reading newspapers, and could not but exa-
mine their statement% relative to these transactions. If he could
believe general Eaton's assertion, that the prisoner had threaten-
ed to turn congress out of doors, and assassinate the president,
he had said, and would still say, that colonel Burr was guilty of
treason. If general Wilkinson's letter were true, he had surely
been guilty of something in the west, that was hostile to the in-
terest of the United States. He did not know, whether in the
multifarious conversations he had had on this subject, he had al-
ways expressed this opinion of his guilt with that reservation. He
had very often communicated his impressions, that he was plot-
ing some nostile designs against the United States. Mr. Storrs
confessed that he might be prejudiced against the prisoner; and
that he might be judging too highly of his own mind, to enter-
tain the belief, that he could divest himself of all his impressions;
and upon the whole, he expressed a wish not to serve.* He was
fhenj-ejccted.
376
8. Miles Seidell declared, that it was imposr&ible not to have
entered into the frequent conversations which had occured on
this topic, qnd to have declared some opinion; that he had al-
ways said^ that colonel Burr was guilty of something, and that if
he were guilty of treason against such a government as that of
the United States, he would deserve to be hung; that he could
not assert that he had always accompanied his opinions with this
' reservation; but that he was not afraid to trust himself in the ren-
dering of a verdict.
Upon being interrogated, he said that he had frequently jest-
ed on this subject; and particularly recollected to have said in a
sportive conversation with colonel Mayo, that this was a federal
plot and that Burr had been set on by the federalists. Colonel
Selden was therefore suspended for further consideration.
9. Lewis Truehart had said, that if the reports were correct,
colonel Burr had been guilty of something inimical to the coun-
try, and that he always qualified his opinions in that manner.
Colonel Tinsley was then called in as a witness, who stated,
that from a conversation with Mr. Truehart, he thought that he
had discovered that he had a general prepossession against colo-
nel Burr. He did not expect to be called on, and had no very
distinct recollection of the particulars; that this was before any
of the proceedings of the trial ; and when he heard that he
was summoned as one of the venire^ he then recollected their
conversation and happened casually to mention it. Mr* Tmehart
suspended.
William Yancey had expressed an opinion on newspaper testi-
mony that colonel Burr was guilty; that he had frequently said
that he would believe the statements of newspapers till the con-
trary were proved; but that he had no doubt he should entertain
a different sentiment, if other testimony were produced. He was
set aside*
Thomas Prosser was next called. He said that he had made
numberless declarations about colonel Burr; that he had believed
him to be guilty of a treasonable intention, but not of the overt
act; on this point he had suspended his opinion, but he was ra-
ther inclined to believe that he had not committed it.
Mr. Martin. — Can this gentleman be considered as an impar-
tial juryman, when he thus comes with his mind made up on one
half of the guilt ? He was suspended for further consideration.
John Staples had been under the same impressions, which had
been described by others; that he dared to say, that he had said
colonel Burr was guilty of lev}'ing troops and making war upon
the United States. He was set c^ide.
377
Edward C. Stanard acknowledged that,his prejudices against
colonel Burr had been deep-rooted; that he had no doubt of the
criminality of his motives^ but that he had doubts of the com-
mission of an overt act; he regretted that a man of his talents
and energetic mind, should be lost to his country. Upon being
interrogated he observed, that he had doubts as to the overt act,
because he believed him to be a man of such deep intrigue as
never to jeopardise his own life, till thousands fell before him,.
Ife was rejected.
Richard B. Goode was then called.
I have never seen, neither do I believe, that I have heard
correctly, the evidence in this prosecution. From common re-
port, and newspaper information I have formed an opinion un-
favourable to colonel Burr: that opinion has been strengthened
by what I have heard from the lips of colonel Burr in this
court; but without arrogating to myself more virtue than be-
longs to other men, if I know myself, I have formed no opin-
ion which cannot be altered by the evidence.
Mr. Baker. — Did you not endeavour to displace Mr. Heth
as captain of the Manchester cavalry, for becoming the bail of
colonel Burr?
Answer. I never did. (Here sundry witnesses were directed
to be called.)
Mr. Goode. — I will state the circumstance to which you
allude, unless you prefer to prove it.
The Court. — Do so, if you please.
Mr. Goode. — On the 4th of July, 1806, I was a member of
a committee with captain Heth, appointed to prepare toasts to
be drunk on that day by the Manchester cavalry. I profess to
be attached to the present administration of the general govern-
ment, and wished to express such a sentiment. Captain Heth
declared, that he had not confidence in the executive, and
rather than express such a sentiment he would resign his com-
mission. At that time, I thought captain Heth and myself dif-
fered only as to measures, and not as to principles; and that it
was an honest opinion. But in a few months sifter, when I un-
derstood that captain Heth had become bail for colonel Burr,
and was his zealous friend, with whom he was neither connec-
ted nor acquainted, but a stranger, who, three years ago, would
have been consigned to the grave by captain Heth, and those
thinking with him upon political subjects; and when I recol-
lected the charge preferred against colonel Burr, I confess that
the declaration and conduct of captain Heth made such im-
pressions upon my mind, that I refused to trust my person with
him as a military commander, ajid I would do it again.
Vol. I. 3 B
378
• ■
Colonel Burr. — Pray, sir, did you not write a letter to cap*
tain Heth?
Answer. I did ; and I have reasons to believe, that that let-
. ter is in your possession or in the possession of your counsel.
You are at liberty to show it to the court, or I will repeat that
part of it, which relates to captain Heth and yourself.
The Court.— Do so, sir.
Mr. Goode. — A few weeks past, I received a letter from
captain Heth, commanding me to appear at a certain time and
place, in order to take my proper command in the troop. I
wrote him, in answer, that my post as a soldier would never be
abandoned, and that my duty as a citizen forbade that I should
silently approve of the conduct of those who had extended a
favour to a traitor, which the justice of my country denied to
an unfortunate debtor, or words to that effect.
Mr. Goode was then rejected*
Nathaniel Selden stated, he had formed an opinion, particularly
from general Eaton's deposition; that the intentions of the pri-
soner were hostile to the United States ; but that he had also said
he had seen no evidence to satisfy him that he had been guilty
of an overt act. He was suspended for further consideration*
16. Esme Smock declared, that he had formed and expressed
an opinion that colonel Burr had treasonable designs.
Chief Justice. — To what time did your opinion relate ?
Mr. Smock. — I have formed my opinion from newspaper pub*
lications and common report; but I have constantly conceived
that colonel Burr's intentions were treasonable throughout.
Mr. WicKHAM. — Have you ever formed an opinion, that co«
lonel Burr was guilty of treason ?
Answer. I have in my own mind. He was set aside*
Richard E. Parker said, that he had, like every other person,
formed an opinion on that case, on newspaper statements ; but
he had heard very little of the evidence that may be adduced on
this occasion. He had declared, that if these newspaper state*
ments were true, colonel Burr had been guilty of some desiga
contrary to the interest and laws of the United States. As to
the doctrine of treason, he had not formed a conclusive opinion.
Mr. Burr. — I have no objection to Mr; Parker. He is there*
fore elected.
A desultory argument here ensued, about 'the propriety of
swearing one juryman at a time. The counsel for the prosecution
opposed, the counsel for the prisoner advocated, the doctrine.
The court decided, that it would adhere to the practice of Vir-
ginia; and swear four jurymen at a time.
379
John W« Ellis said, that he had no doubt that the prisoner
had been guilty of having treasonable designs; whether he had
proceeded to acts, he had doubt. He was suspended.
Thomas Starke^ without any expectations of being summoned
as a juryman, had stated his opinion to his neighbours, who had
asked him questions on the subject, that colonel Burr had been
guilty of high treason. He was set aside.
William White stated, that he had been in the western coun-
try, in May last ; and from colonel Burr's character and from
the representations he had received of his conduct, he had been
induced to say, that he was guilty of treason, and that he ought
to be hanged, or tliat hanging was too good for him. He was
set aside.,
William B. Chamberlaine stated, that he stood in a very pe«
<:uliar simation; if, as Mr. Wickham declared, any man wereun-
^t to be a juryman who had asserted colonel Burr to have been
worthy of death; he was ready to confess that he himself came
under this restriction. He had said, uniformly, that he had trea-
sonable designs; but he did not now believe that colonel Burr
had committed an overt act of treason; though he believed him
to be guilty of the intention. He however believed that he could
do him justice; and that he could conscientiously pass between
him and his country. He was rejected.
David Lambert wished to be excused on account of his indis-
Eosition; but the court rejected his plea. On being interrogated,
e declared, that he did not recollect to have formed an opinion,
for or against colonel Burr. He was elected.
William Hoomes had no hesitation in saying, that he had often
declared his opinion, that colonel Burr was guilty of treasonable
intentions, and perhaps he might say, of treason itself. He had
imbibed his impressions from every thing he had seen, heard or
read. He had understood that cplonel Burr's counsel had made
preparations to prove, that he had disqualified himself, by his
own declarations. He should thaiik them to develop their ob-
jections.
Mr. Burr*. — I assure you, sir, no such preparation has been
made. He was set aside.
24. Overton Anderson said, that he had often expressed an
opinion, that colonel Burr's views were inimical to the United
States ; these opinions he had principally formed upon newspa-
per statements ; he did not recollect that he had ever asserted
him to be guilty of treason; but he had sometimes given credit
to the representations, which he had heard, without particularly
defining the degree of guilt in which they might involve the pri-
380
soner; and thought him guilty of the charge against him, thougk
he would not say it was treason. He was rejected.
Hugh Mercer, upon being called, said, that it was his duty to
state,that an opinion, which he had for some time past entertained,
of the character of colonel Burr, was unfriendly to a strictly im-
partial inquiry, into his case; that he was entirely uninformed as
to the testimony which would be introduced, and that he did not
recollect to have ever expressed a positive opinion, either as to his
guilt or innocence. He was elected.
Jerman Baker had entertained opinions unfavourable to Aaron
Burr, which he had repeatedly expressed. He had spoken them
with warmth, for it was his nature to be warm. He had no
doubt, that the prisoner had formed very unfriendly designs
against the United States ; but from his ignorance of the evi-
dence, he could not venture to say, that they had ripened into an
bvert act.
Mr. Burr.— What opinion have you formed of me ?
Answer. A very bad one; which I have expressed often when
c^led upon; and often when not. He was set aside*
Edward Carrington, next called, said, that he had formed an
unfavourable opinion of the views of colonel Burr; but these opi-
nions were not definitive. Some had said, that colonel Burr's ob-
ject was to invade the Spanish territories ; others, that it was
to dismember the union : his own opinion had not been defi-
nitely fixed. There was another subject connected with this trial,
on which he had also expressed his opinions; and that related to
the measures taken at New-Orleans. His own opinion had been,
that it was impossible for any one at this remote scene, to de-
termine upon the state of affairs in that city; but if general Wil-
kinson did seriously believe what he said had been represented
to him as the views of colonel Burr, that he ought to consider
it as an extreme case, and take extreme measures, and act
somewhat in the manner that general Wilkinson had done. .This
has been the state of his mind for twelve months.
Mr. Burr. — Have you, colonel, any prejudice of a more setr
tied kind and ancient date against me ?
Colonel Carrington. — None at all.
Mr. Burr. — He is elected.'
Mr. Parker said, that perhaps he had been misunderstood by
the court, and colonel Burr; perhaps he was disqualified, and he
wished to be distinctly understood. He said, that he had express-
ed no deliberate opinion on the subject, yet he had believed,
that colonel Burr had some designs contrary to the interest of
the United States; that he had formed no opinion of the truth
381
9f those depositions, but if they were trae, his designs were trea-
sonable. Mr. Parker xvas returned as a juror.
The four jurymen that had been elected, were then called to
the book, and sworn, viz. Messrs. Parker, Lambert, Mercer, and
Carrington.
Robert Haskins had expressed an opinion, that colonel Burr
was guilty; but does not recollect to what extent he went. He
went so far as to say, he was guilty of an intention of treason,
but not of an overt act* He might have said, that he deserved
to be hung. He was set aside*
William R. Fleming had formed, and fre^uendy expressed,
an opinion, that colonel Burr was guilty of treasonable intentions;
and might have' made a general declaration, not only as to inten-
tions, but to acts. He was set aside.
George W. Smith suggested a right to thjc same exemp-
tion, which had been granted to Mr. P. Randolph. The court
said, that this privilege would be incontestible, unless the prisoner
should urge his conflicting privilege. Mr. Burr then requested
Mr. Smith, to attend to*morrow. Mr. Smith wished to be ex-
cused, as he had some important business in another court, to
attend to. He should, however, attend on the trial to-morrow;
but it might now be proper to state the general impressions which
he had received, from these transactions. He had generally been
solicitous to avoid an expression of his opinions ; and as in such
cases, where the government commences a prosecution against
an individual, there is always a preponderance of prejudice against
him; he himself, had not only been solicitous, not to declare, but
even not to form, an opinion. No one can, however, avoid reading
representations of these things, in the public papers : and he had
formed, and declared, his impressions, that colonel Burr had en-
tertained designs, oiFensive to the peace and laws of the United
States. What was the species of guilt, he had not pretended to
define; but he had concluded from the newspaper reports, tind
the testimony which he had heard in the other end of the ca-
pitol, that his designs were of a military nature, and that they
might amount, at least, to a misdemeanor. He was suspended
for further consideration.
31. Armistead T. Mason had formed no deliberate opinion,
in regard to the actual commission of treason. But it was nis de-
liberate opinion, that colonel Burr had designed, if not to subvert
the government, at least to divide the country. He was suspended
for further consideration.
32. Dabney Minor had often said, that colonel Burr's intentions
were unfriendly to the United States ; that he had said, that if
he were guilty of what was charged against him, he ought to be
hanged; but had heard no positive testimony.
382
Some conversation here ensued, between Mr* Minor and Mr*
Botts, when Mr. Minor was suspended until to-morrow*
Thus, then, of the whole venire that appeared, four only were
elected and sworn, and nine were suspended, till arguments
should be heard on the subject, in order to aid the court, to form
an opinion, whether they were competent jurymen or not.
Here a discussion of considerable length took place, on die
propriety of con6ning or not confining, in the custody of the
marshal, the jurors already sworn, ull die other eight should be
sworn.
The court then decided, that there was no necessity for deli*
vering the jurymen, who had been, or should be sworn into the
custody of the marshal, until the whole number had been irnpa*
neled and sworn.
Adjourned till Tuesday, eleven o'clock.
Tuesday, August 11th, 1807.
The court met according to adjournment.
Present, the Chief Justice and Judge Griffin.
The Chief Justice informed the counsel engaged in the
cause, that the court was ready to hear any observations on the
question before them yesterday, which they might think proper
to make.
Mr. Martin. — ^We are ready to say something relative to the
situation that a juryman ought to be in, to enable him properly
to pass upon the case of a prisoner.
Mr. George W. Smith was the first of the jurors, suspended yes-
terday for subsequent examination, who was called. He said, that
he supposed himself entided to exemption, from his profession as a
practismg lawyer in this court: that by the law of the land, as long
as he behaved with respect to the court, and diligence to his client,
he ought not to be obstructed in the pursuit of his professional du-
ties: that though there was no express statute exempting him,
yet he was exempted by the reason of the law.
Mr. Burr observed, that, as some real or fictitious difficulty
had occurred in the selection of jurymen, he should be extreme-
ly sorr}% if such as were impartial should object to themselves.
If Mr. Smith, however, raised such objections, he himself should
submit to the decision of the court, as he wished to be perfectly
passive.
Mr. Smith did not know whether he deserved such an enco-
mium on his impartiality' ; but as the arrangement of his pro-
fessional business, in other courts, (though not in this court at
this particular time) would not permit him to attend the trial
383
with any convenience, he should dsum the privilege of exemp-
tion, to which, in his opinion, he was entitled by law.
Chiet Justice said, that this privilege would certainty ex-
empt Mr. Smith, unless his attendance were claimed by the
prisoner; and as adonel Burr waived this right, Mr. Smith was
excused from attending.
James Henderson, of Wood county, who was absent yesterday ,
was nest called; he was challenged for cause. On oeing exa*
mined by Mr. Botts, he admitted that he was not a freeholder,
and was consequendy set aside.
Mr. Hamilton Morrison was the next of the suspended jury*
men who was called. He declared that it was with pain he should
serve on the jury; that he did not wish to serve on it; that it
was still more disagreeable to him, as the defendant seemed to
have such imaginary thoughts against him; that he had ndt med-
dled with the prisoner's transactions, though perhaps he might
have done so, had it been profitable to him. James Henderson
and Mr. Neale were both examined as to what they might have*
heard him say on this subject, and both declared that they had
heard him say nothing material.'
Mr. Burr. — Have not these rumours excited a prejudice in
your mind against me?
Answer. I have no prejudice for or against you.
Mr. Botts. — Are you a freeholder?
Answer. I have two patents for land.
Question. Are you worth three hundred dollars?
Answer. Yes: I have a horse here that is worth the half of it.
Question. Have you another at home to make up the other
half.
Answer. Yes: four of them. [Here the court said, that sufficient
cause had not been shown against his being a proper juror.] I
am surprised why they should be in so much terror of me. rer-
haps my name may be a terror, for my first name is Hamiltotu
Colonel Burr then observed, that that remark was a sufficient
cause for objecting to him, and challenged him. Mr. Morrison
was therefore set aside*
This was the first peremptory challenge which the prisoner
made, of the thirty five to which the law entitles him.
Thomas Creel, another of the suspended jurymen from Wood
county, was next set aside by the court ; because, he said, that
he had both formed and expressed sentiments unfavourable to
the prisoner.
John H. Upshaw was next called up. He stated, before he
^84
was interrogated, that he had received strong impressions against
oolonel Burr, but that he believed he could find a verdict ac-
cording to testimony.
' The Chief Justice wished to know, whether those impres-
sions related to the general charge of treason against the pri-
soner, or to what happened before, or to what circumstances?
' Mr. Upshaw answered, that they related to the transactions
in the western country; and added, ^^ my opinions have changed
as the lights of evidence seemed successively to appear. It was
my first impression, that he had nothing more in view than the
settlement of the lands on the Waschita. I next supposed that
he intended to attack Mexico ; but that as a mean of effecting
that object, he intended to attack New-Orleans: and last of sdi,
that hb plans were of a more complicated nature; but that he
never thought, till after his leaving the mouth of Cumberland,
that Burr had treasonable designs ; but that he could not recollect
jKtrticularlyy the times, when he formed, or changed these
opinions.
Mr. WicKHAM asked him, whether, as the result of all these
impressions, he did not consider colonel Burr a dangerous man^
He answered, that that was his impression.
Mr. Mac RAE.-^-Have you formed or delivered an opinion,
that he has committed an overt act of treason, as charged in the
' indictment?
Answer. I have not.
Mr. Martin said, that he should state, whether there were
any bias on his mind, although he did not believe that an overt
act had been committed; for if he had such bias^ he was unfit
for a juryman.
Mr. BAKER.-^Have you not, in your own county, argued in
conversation, to show, that colonel Burr was guilty, and that
there was strong presumptive evidence against him ?
Answer. I have done so ; and not only supported such opi-
nions, but have gone on to vindicate the propriety of the mea-
sures taken by the government.
Mr. Burr said, that enough had appeared to show, that Mr.
Upshaw had taken up strong prejudices against him.
Mr. Hat asked, whether such testimony as that could disqua-
lify him as a juryman?
Mr. Upshaw said, that he had been in the habit of impressing
on others his prejudices, or opinions, that Burr was a dangerous
man to the community.
Mr. Mac Rae. — I beg leave to ask, whether personally you
385
liave any prejudices against hiih? Have you any other prejudice
against nim, except that he has entertained treasonable designs?
He answered explicitly, that he had not.
Mr. Burr.'—- Had you not, anterior to those transactions ru-
moured in the western country, formed an unfavourable opinion
of me?
Mr. Upshaw answered, that he had before (with other per-
sons) formed rather an unfavourable opinion against him, during
tl>e presidential election (of 1801,) though he had no positive
evidence on that subject.
Here Mr. Upshaw was suspended^ till the general question
on the doctrine of challenges should be argued.
Mr. Martin rose to proceed with his argument. He stated,
that it was one of the soundest principles of law, that every man
had a right to be tried by an impartial jury: that this right ex-
tended to all cases, civil and criminal; but that in criminal cases
it was secured by the constitution in a positive and sacred ihan-
ner, so that all altercation as to the meaning of the terms was
rendered unnecessary.
Mr. Mac Rae apologized for interrupting Mr. Martin, but
suggested that it would be a saving of time, first, to know the
objections to all the jurors, and then to have one general argu-
ment, as to all, instead of having an argument on each particu-
lar case as it might occur; that he wished to economize time,
and that the experience of yesterday showed the propriety of
saving time as much as possible. Evidence is now heard as to
this case, and if it be argued, the court must hear arguments in
the case of every odier juryman: he did not see the necessity of
holding twelve arguments instead of one, where the cases were
precisely similar. He did not wish to prescribe to gentlenien the
course of proceeding, but he really supposed that one argument
would suffice for all the cases.
To this the Chief Justice assented.
Mr. Martin.— I have been repeatedly interrupted by the
gentlemen ; and they have found out in their infinite wbdom,
that we are to hold twelve arguments on this point. They talk,
sir, of economy of time : they have shown a happy instance of
this economy of time, when I was here on a former occasion. I
know what* kind of economy they wish. They wish us to be si-
lent; they would, if they could, deprive colonel Burr's counsel
«f an opportunity of defending him, that they might hang him up
as soon as possible, to gratify themselves and the govemm^it.
Vot. I. 3e ^ '
386
Mr. Mac Rae* — That is a most unprincipled and most on-
founded assertion.
Mr. Burr said, that he thought the gendemen for the prose-
cution were not altogether so wrong. Generally the question
was whether those gentlemen who said, that they were convin-
ced that he had treasonable intentions were impartial .and pro-
per jurymen ? They had avowed their conviction as to these in-
tentions in court; that one argument would apply to all; and if
the principle were once fixed, it would not be necessary to re-
new it in the case of each gentleman ; that they had entefed into
the argument because they wished the principle to be settled,
and then it could be ap]>lied to the particular cases.
Mr. H AY.—- We wish the argument to proceed without hear-
ing ourselves grossly insulted; without making accusations
against us that are malicious and groundless. We said nothing
that could give offence to the feelings of any gendeman. The
gentlemen cannot say with truth, that we wish to deprive them
of the right of defending their client. The charge is unjust. I
wish him to have a fair trial, and justice to be done with all mj
heart ; but I feel myself hurt, and grossly insulted, when the gen-
tle men on the other side charges me with feelings that are dis-
graceful to humanity. I trust, therefore, that the arguments will
no longer be conducted with such indecorum.
The Chief Justice had hoped, that no such allusions would
have been made; that the government ought to be treated with
respect, and that there was a delicacy to be observed on that
subject, from which he hoped there would be no departure
hereafter.
Mr. Burr. — I rose to stop the progress of such language
when up before. I had made sufficient apologies, ifany were ne-
cessary, for any expressions which had been used, and I had
hoped, that no allusions would have been made to the subject.
It will be recollected, that I have constantly manifested my dis-
pleasure at such expressions. I have carefully avoided such
myself, and imposed similar restraints on my counsel; and
urged, that the government should be treated with the utmost
delicacy, though there was great provocation from th,e gende-
men on the part of the prosecution, which would have justified
harsh terms. I hope these things will cease. On the part of my
counsel I am sure they will cease.
Mr. Martin. — I have no wish to hiirt the feelings of a sin-
gle individual, but they have no right to hurt our feelings; and,
when I am so often interrupted and charged with wasting the
public time, and the gendemen still persist in their observations,
I cannot repress mine.
387
As to the point before the court, what I am about to adduce
will show unequivocally, that these gentlemen are not proper
jurymen* The emphatic language of the constitution is, that
jurors shall be free from all bias and prejudice. The constitu-
tion of the United States requires, that every criminal shall be
^tried by an ^^ impartial jury;" that is, a jury that must be per-
fectly indifferent, and have no prejudice whatever on their
minds ; that every juror shall receive his impressions from the
evidence which shall be adduced in legal form, and under the
sanction of an oath. But those gentlemen come with minds al-
ready prepossessed against the prisoner, and it will require
stronger evidence to eradicate those previous impressions;
whereas, according to the constitution, there ought to be no
impression against a criminal, except what arises from the facts
proved against him in court, according to the rules of law on
the subject. To this effect, I will take the liberty of reading
Reeveii* History of the English Latv^ vol. Up. 329. to show the
rigid impartiality required by the law of England. [Here Mr.
Martin read it*]
Every objection that b valid against a juryman is valid
against a witness, but not vice versa. The credibility of a wit-
ness may be questioned though he be admitted to be sworn,
but a juror must be free from every objection; exempt from
every thing that may possibly give a bias to his mind or judg*
ment. He must have no enmity against, or friendship with the
party, whose cause he is to try. That even a great or particular
familiarity, or being constancy at the same table with him, will
disqualify himfrombeingajuror.«S'^e2^v0/. Reeve*s English Law^
p. 446* The general principles herein stated, show how particu-
larly cautious the law is, that jurors should, in all cases be free
from all impressions and influence, and not liable to be suspected.
In confirmation of this doctrine, I will refer your honours to
Care's English Liberties^ p. 245. a work of very considerable
merit. He states here the great benefits of the trial by jury;
that ^^ no man's life shall be touched for any crime whatsoever
till found guilty on two trials ; that no person shall suffer death
but by the verdicts of twice twelve men against him, or two
juries: one to find the bill or charge to be true, and the other
on the merits, to decide on full and legal proof, adduced on
both sides, all of which jurors must be honest, substantial, im-
partiaLmen." In page 248. he tells us what he means by an im-
partial man: ^^that he ought to be lekst suspicious, that is, to
be indifferent as he stands unsworn ;" that his mind should be
free from every cause of suspicion. In page 249. the author is
still more explicit. Among other qualities, he says, ^^ that jurors
must httfree of and from all manner of affections^ relations and
prejudices.^'* This is a general proposition extending to all cases
' 388
whatsoever, civil as well as criminal ; and if a man to be a pro-
per juror, must be divested of all affection for, and all relation-
ship to, the parties in a civil* case, how much more essentisd is
it that he should be in this situation in a case of life and death f
He must be also '' free from all prejudices," and come into
court in that situation ; that all his impressions are to be re-
ceived from legal evidence, delivered in open court, under the
sanction of an oath. His, mind must be totsiUy indi^erent in
every respect. As to the idea of a person charged being guilty
or innocent, it is one of the most sacred as well as humane max-
ims of the law, that it presumes every man to be innocent, till
an impression by the evidence is made on the minds of the
jurors to remove that presumption. I do not understand ' this
quartering and halving of prejudices, and partialities. It is not
sufficient that one' man should have only a quarter of the prie-
possession of another ; or that this man should only have one
half, or three fifths, or four sevenths of the prejudice of that;
but the law requires, that he shall not be biassed at all; that he
shall be perfectly impartial. The constitution has secured t©
us a privilege so sacred, that no law, nor this court of justice
ean take it from us) Sir, so jealous were the citizens, of the
United States of their rights, that they were dissatisfied with
the constitution in its original form, because it did not expressly
provide, that there should be a trial of every offence *' btf an
impartial jury. ^^ They therefore chose to have it secured by the
constitution, so that there should be no possibility of being de-
prived of an ^^ impartial Jury 'triaP^ The eighth amendment of
the constitution provides, that ^^ in all criminal prosecutions the
accused shall enjoy the right to a speedy and public trial by
an impartial jury of the state and district wherein the crime
shall have been committed."
This provision in the constitution, which secures this sacred
right, is bindifig on every judge, sitting on the trial of every
criminal. It forbids him to force upon him any juror that is
not perfectly indifferent. Gentlemen may say, that we -must
t^ke such men or have no trial at all. Gentlemen do not un-
derstand the subject correctly. They take it for granted, that
colonel Burr must be tried at all events, and hung, if an impar-
tial jury cannot be had! But I contend, that if an impartial jury
cannot be found to trv him, he cannot be tried at all: because
the constitution says, that he " shall be tried by an impartial
jury." But I do not believe what has been said, that an impar-
tial jury cannot be found in Virginia! I have no doubt, that
many impartial juries can be found in Virginia. The plea of
necessity of trial insisted on by the gentlemen is not founded
on fact. I can see no such necessity as to render it compulsory
©n the court to try him in any event, whether an impartial jury
389
can be obtained or not: because the coiistitutioii oh the contrary
declares, that no person shall be tried till he can be tried ^^ by
an impartial jury.*' But let us see what has been done in such
cases in that country from which we have derived our system
of laws. It is not thought necessary there, t^at a man shall be
tried by a partial jury, rather than that he should not be tried
at all. 3^ Mac Nolly ^ p» 667* a trial was put off on an aiBdavit,
that the public mind was so prejudiced by recent publications,
as to prevent a fair trial: because those publications had so poi-
soned the public mind, that a fair trial by an impartial jury
could not be obtained. To the same effect, and in the same
page is the case of the Xing' v. the Dean of St. Asaph^ and the
case of the King v. Robinson^ Brooks^ and others, where the
court thought it correct to decide, that the trial should be post-
poned till another term, lest certain recent publications, giving
an imperfect statement of the evidence, should influence the
public mind. If such be the humanity of the law, that it requires
that jurymen shall be selected from the public, wbo are
without bias, and persons were deemed improper jurymen in
that case, on account of a trifling and temporary bias produced
by such publications, how much stronger is the objection
against a man being a juryman, who has had a bias on his
mind for years and declared that bias? In that case, there was
propriety in putting off the trial, because of the impossibility
of selecting a proper jury at that time, out of that public whose
minds had been poisoned by the publications.
On the present occasion let us examine the situation of the
gendemen called to serve as a jury. They are to determine on
the guilt or innocence of the accused, arising from, and depend-
ing on certain transactions in the western countr)^ Do they
come hither with a bias, or do they come perfectly indifferent
as to the innocence or criminality of colonel Burr? The crime
consists in intention and act. The intention constitutes the most
important part of the crime. The actof itself may be innocent;
but treasonable views or designs annex guilt to it. These gen-
tlemen say, *' We are perfectly satisfied as to the treasonable in-
tentions, designs and piu^oses of the accused." To have be-
lieved that his purposes were immoral or dangerous, would
sufiice to exclude them from serving on the jury, because
the court is to give a nafhe to these crimes ;- but when
they go so far as to assert, that his designs were treasonable,
the objection against them is stronger. When they come forward
with a full conviction on their minds, that he has been engaged
in practices dangerous to the community, do they come forward ^
with impartial unbiassed minds? Their minds are already half'
made up, and that half the most material part. Twenty or thirty
men on Blannerhasset's island, and eight or ten of them amed.
390
may have been perfectly innocent, as if they came together with
an intention to shoot game^or for anv other law-ful and innocent
purpose. The witnesses may tell them " We have not a thought,
that he has committed treason, or that his mind had treasona«
ble designs; we know of noevidence to that effect." But what do
these gendemen say? That they have come to hear witnesses
prove such and such acts, for they have already settled the
intention in their own minds to be treasonable. What do the
constitution, and common reason, and common justice require?
Certainly that a juryman must be free from impressions both
,as to the intention of the accused, and as to the act. The inten-
tion constitutes the most important part of the crime ; and their '
minds ought to be as free from impressions as to the intention
as they ought to be as to the act* But it may be said, that they do
not consider, that he did the act at Blannerhasset's island; but
your honour does know, that it has been said, and it will be
again said, that if the act be done at the persuasion of colonel
Burr, it must be considered as committed by him* Let me fa-
miliarize this case with the common case of burglary, which is
the crime of breaking and entering a house in the night time
with an intention to steal. Suppose a person is charged with
the crime of burglary, and a juryman called to act on his trial »
saysv that he has his mind perfectly made up that the person
indicted intended to steal; but, that he is not sure that he got
into the house. Then it is proved that he did enter the house,
and the only question is, with what intent he did enter the
house ? (because he may have gone in with a mind perfectly
innocent, without intending to take any thing.) Could such a
juryman be truly said to be impartial? Most certainly he could
not. When a man is indicted for burglary, the juror to try him
must be as free from the; belief that he intended to commit bur-
glary, as that he went into the house. He must be free from
every impression when he comes to be sworn. These observa-
tions I have made to show, that on principles of common law
and justice, every juryman in every case, especially in crimmal
cases, o.ught to be without any prejudice. How can they he said to
be free from prejudice who say^ that they believe that colonpl
Burr had treasonable designs? Do they not come with minds
ready to listen to whatever may confirm his guilt? and will they
not listen with great reluctance to arguments used to drive away
their prejudices from their minds? It is to be lamented, that the
public mind is in the state which gendemen have described, but
it certainly is not so to the extent which is represented. I do not
consider the forty-eight gentlemen, who have been summoned,
as an accurate specimen of the people of Virginia. To the honour ,
of this populous state, I will say, that I believe that a great many
impartial juries might be selected, and I should think it strange
391
if one out of a hundred had imbibed prejadicea. It implies
some degree of malice in any man« judge or juryman^ to suffer
his mind to be thus poisoned against a person accused, when
the law presumes his innocence. How came these impressions
to be on the public mind? Did we busy ourselves to mislead or
influence it? Was not the Alexandria Expositor and other pa*
pers, under the influence of our rulers at Washington, constantly
occupied in throwing out dark hints on this subject, long before
the proclamation of the president appeared? Have not great
pains been taken by inflammatory publications to impress the
minds of the people with a belief of his guilt? Those who have
done it have to answer for it: and if thev have created such a
prejudice, that colonel Burr cannot be rightly tried, they alone
are to blame. I am sure, that the respectable gentleman on the
other side, (though I do not dharge him with having done so
designedly,) has contributed to increase this prejudice. Has he
not frequently declared himself satisfied of the guilt of colonel
Burr? The zeal which he has manifested in the prosecution
was well calculated to create prepossessions, as he must be pre-
sumed to be well acquainted with the evidence against him*
When gentlemen, who have set their hearts on the success of
the prosecution declare, that they have no doubt of his guilt,
other people will be misled by their declarations, and conclude
that he is guilty. I submit the case to the court, and have no doubt
those jurymen will be deemed improper to serve on this jury,
because the constitution requires, that the mind of a juror shall
be as free from bias, as if he had never heard any thing of the
cause before. Can the gentlemen conscientiously say^ that they
stand indifferent? Can the court say so? But if they be excluded
from, serving, it is not the court which says, that they shall not
be sworn on this Jury, but the constitution of our country
which prescribes, tnat every person accused "shall be tried hy
an impartial jur}%"
Mr. BoTTs observed, that every crime consisted of a great
many constituent parts; and that the question was, when a crime
was analysed, and a juryman confessed, that he had made up his
mind on a number of those component parts, and said, that there
were two or three of those parts out of a multitude upon which
he had not committed himself, could such a man be regarded as
impartial in the subject he is to investigate ? Is he, said Mr.
Botts, without bias on the question ? Is he free from prejudice i
The man who has made up his mind on part of the crime, is not
without a bias and some degree of predetermination. Wtiat por-
tion of the crime the intention may make, cannot be exactly
computed; but it is, at least, an important feature of it. Fix on
twelve jurors who have made up their minds as to the intention,
and you deprive us of half of our defence. We have a right to
392
be tried by a jury, uaprejudiced, as to every part of iktt crifne.
Colonel Burr has a right to insist, that he is not guilty either of
the intention, or of the act; and if there should be complete ei^i-
dence of the one, yet it will not suffice without full proof of the
other* If you fix on twelve jurors, who have made up their minds
as to the intention, and grove an act to them, they may find a
verdict of guilty; when twelve jurors, who had not njade up their
minds as to tlie intention, might be perfecdy satisfied, that no
crime had been committed, although an act were proved to them;
because, without an intention, there can be no guilt. With what
face could colonel Burr's counsel stand before a jury, predeter-
mined as to the intention, and urge on their minds an innocent
intent \ With what face could we stand befor'e a jury, who bad
made up their nnnds as to the act, and insist, that no act was
committed? It is of no sort of consequence, what descrintion of in*
tention should be associated with the act, nor what act is to be as-
sociated with the intention; it is sufficient that the intention is an
ingredient of the crime* Yesterday, when we took an exception
to a juror because he said, that the accused ought to suffer punish-
ment, he was rejected, because his meaning might have been,
and probjibly was, that the accused deserved death, if he ought
to be punished at all. Could we offer any argument to the gende-
man, who had expressed this sentiment, to convince him that'
the prisoner ought not to suffer any punishment? There \ is no
kind of question; but the only inquiry with him, would have been,
what kind of suffering he ought to be subjected to ? We should
have been precluded from investigating, with any rational expec-
tation of success, the general principles of innocence. When the
public mind is so infected with rancorous prejudice, it is neces-
sary to select a jury entirely unbiassed; for he might as well be
condemned at once, without a trial, as to be tried by a jury pre-
possessed against him.
Colonel Burr said, that he rose to narrow, and not to extencl,
the argument; not to add any thing more, but to throw out of
the discussion, what had been accidentallyand irregularly intro-
duced. The question, said Mr. Burr, is not whether great pre-
judices exist in the public mind, or what (produced them, but
whether these jurymen ought or ought not to be regarded as m-
partial? I sincerely hoped, that this point would not have been
intr6duced. Ceitain analogies had been taken from the crime of
treason to other crimes. I wish the discussion of these analogies,
at present, to be omitted; for they may hereafter, though only
discussed in a collateral manner, be construed into opinions. The
inquiry is, whether in civil or criminal cases, a juryman who has
made up his mind on part of the suMect matter in controversy,
ought to be considered as impartial ? It is evident, however, that
no man can be considered as impartial, who has made up his
393
mind as to the intention* Suppose the case of slaying a man; the
act of killing may be differently construed. It may be justifiable,
excusable, or clergiable; or it may be murder* Suppose on the
trial of the party accused of the murder, that several jurymen
come forward and say, ^ We have no doubt of the murderous in^
tent of the prisoner, but we do not know, whether he killed the
deceased or not;" would such jurymen be considered as impar-
tial, or be permitted to.be sworn to try him ? Would not the in-
tention in that case, constitute the principal part of the offence ?
But I hope that these public impressions, and analogies from
treason, will not be drawn again into this discussion.
Mr. Mac Rae. — It was never my wish, in any period of all
the various discussions which have taken place before the court,
in this case, to travel out of the way, for the purpose of making
any observations calculated to defend a government, which in
my opinion requires no defence, or to say any thing to wound
the feelings of the prisoner. It has been invariably my wish to
confine myself to those points only which were under considera-
tion. I have most studiously and constantly avoided making an^
remarks to wound the feelings or to excite the resentment of the
opposite counsel. Frequent as have been the occasions, when I
'was tempted to deviate from this course, and to follow the example
set before me, I carefully avoided availing myself of it, except
oh one occasion, when the nature of the case was such, that I
could not perform my duty without following the example, and
repelling an unmerited and unprovoked attack. I will so far re-
spect the admonition of the court, that I will not comment upon
it, but will pursue the course that it may think proper, and con-
fine myself to the subject under consideration. But I must, at
the same time, be permitted to remark, that I shall not for ever
do this, if the admonition of the court, reiterated over and over
again, will not be regarded by the gentlemen on ^he other side.
If they make undeserved attacks, I will retort them with the
force with which they ought to be retorted, on the quarter from
which they come. This I will do in every case, but more espe-
cially in cases of this description. It will be unnecessary to state
what my feelings and what my wishes in this case are. But per*
haps it may be a duty, which in some degree I owe to myself,
after considering the quarter from whence the attack came, and
the manner in which it was made, to declare to this court, to
this people, and to the God of my being, that I have never felt
that inhuman, that infamous, and worse than diabolical disposi-
tion, to wish that the blood of the prisoner, or of any other fel-
low being, should be shed. That man is a stranger to me, who
thinks that I have such a heart and disposition. I wish that the
Vol. I. 3D
394 ,
prisoned miai^ have a fair trial,' before an unprejudiced jury. Ida
* not wish that a single man should be impaneled on it, who is not
impartial. If there be a single individual on this panel, who is
not, within the precise meaning of the constitution, impartial, and
fit to decide between the United States and Aaron Burr, I pray
the court to reject him. I would unite, with the counsel of the
accused, for the sake of the community and posterity, in praying,
not for the sake of justice to him only, but to every person, who
may be in his situation in future, that such jurymen may be ex-
cluded from serving on this jury. But if nothing said by them-
sfelves, or by the witnesses called on to show their incompetency,
shall satisfy the court, that they are unfit to be jurors, I trust, that
as they ought, they will be admitted by the court
It was unnecessary to read the authorities, which the gentle-
man addtlced; the principles therein stated, are not controverted;
but we deny their application to the case now* before the court
If any of those gentlemen whose case is now before the court,
be partial or biassed, with respect to this cause, or have really an
ill will to the party accused, then their case comes within the ob-
jection. Is there one of these jurymen who feels an ill will
against Aaron Burr ? Does any of them entertain a personal
prejudice against him ? Is there one of them who says, that hh
mind has received a bias, on the question, whether he be guilty
of treason or not ? There is nothing which goes to justify the
opinioa, that they have a setded bias, on the question submitted
to the court; which is .that sort of prejudice, which the law re-
cognises as a valid objection against the competency of a juiy-
man. It is true, that most of them say, that they have formed an
opinion as to his intentions; but the question is, whether he have
committed treason or not ? And they have received no informa-
tion to enable them to form any opinion at all on this question.
Indeed, if I mistake not, some of them have gone so far as to
declare their opinion to be, that the prisoner had never commit-
ted an overt act. Now what is the argument of gentlemen on
this point ? It is this; that this crime is made up of several in-
gredients, as intention and act; and that having formed an opi-
nion on any one of these component parts, disqualifies a man for
ajuror, as much as if he had formed his opinion on the whde.
This does not appear to me to be sufficient to produce the dis-
qualification contended for. They must go infinitely beyond this
point: as that they believe that Aaron Burr had formed treason-
able intentions; in connexion with individuals, who had commit-
ted an overt act. Does any of these gentlemen say, that his opi-
nicm extended so far ? Those intentions may have related to
other acts thata those charged in the indictment, to acts commit-
395
ted out of the district, in some other state than Virginia^ Accordr
iog to my best recollection af their answers, the treason of which
they spoke, related to acts, mtended to have been perpetrated not
in' Virginia, but in a different &tate, (as Tennessee or Kentucky)
and whid), therefore, are not now before the court. Some of
these gentlemen show, that diey have adverted to this distinction,
because they have referred to die opinion of one of the judges
now on the bench, formerly pronounced on this point. It has been
stated froin the bench, that these dangerous designs, may have
been entertained, but that to constitute treason, they must have
been matured into acts. If it be not a bias in diis court, if such
a prejudice do' not exist 'xn the minds of the judges, why should
it exist in the minds of the jury ? They may have heard the opi-
nion of the court, that various criminal projects may have been
revolved in the minds of the accused, but that this was not suf-
ficient to constitute treason, without the commission of an overt
act; and paying respect to that opinion, they may have formed an
opinion themselves, that there were treasonable intentions, but
they may have considered the rest of the opinion of the court,
that an act and an intention joined were necessary to constitute
treason, and that designs may have been formed by a person
who could not be charged with any actual offence. With respect
to the question, whether the accused have conceived intentions,
which have been matured into treason by open acts, all of them
have declared, on that point, that they do not think that an overt
act has been committed. Suppose men, that having heard the
opinion delivere'd by the court, they have, in fact, adverted to
the distinction, that the formation of designs in the mind, with-
out the commission of an overt act, will not constitute or amoimt
to treason, will they not find a verdict of acquittal, if the neces-
sary overt acts be not legally proved before them ? If they de-
clare that they have no £Q will ar personal hatred against him,
will the mere expression of an opinion, that he had entertained
treasonable designs, disqualiiy diem from acting as jurors f We
wish, sir, that he may have a fair trial, that he may be tried by
persons as capable of trying him impartially, as if they had ne-
ver heard of die question now before the court. In short, fay
such a jury as the consdtudon <^ the United States has secured.
I trust it will never be said, that any of us wiAed to deprive
him of any privilege to which he is jusdy endtled. But \i these
jurymen will declare, that they have formed no opinion on the
actual commission of the crime, that they are unprejudiced and
have no ill will against the accused, it doe^ aj^ar to me, and I
trust that it will also appear to the court, that they are compe-
tent to serve on the jury, who are to try ^e accused.
Mr. Hat. — ^The opposite counsel reminded the court, with
a frequency that surprised me, that they were entitled to aja
V
396
impartial jury. Nothing is more true. By the constitution of
the United States, by the principles of common law, common
sense and common justice, the accused has a right to be tried
by an impartial jury.
But a question occurs, about which he has not been pleased
to say one single word. Who is an impartial juror f This is a
question, which I conceive, has already been determined by the
law. I wonder that the gentleman's extensive learning has not
' enabled him to give a correct exposition of it. I cannot sub-
scribe to his doctrine on this point. Impartial they may be
said to be, who entertain the common sentiments and feelings
of a great majority of the people, and who are taken from the
mass of the community. According to my judgment, such a
jury may be said to be impartial. Who shall say that it is not
an impartial jury? Will this court undertake to pronounce its
opinion, that the majority of this district are unfit for jurors,
and not to be trusted to decide on plain facts ; or on the true
construction of the circumstances and transactions in the west,
within the meaning of this part of the constitution ? I believe
the court would be very unwilling to say so of all the people of
this district. It would be to pronounce a libel on the state. The
majority would very truly return the conipliment, by saying,
tha.t the opinion was one which ought not to have been given,
and by a person not competent to give it. *' You, who censure
us in this manner, show the prejudices by which you are
yourselves actuated." What say these jurymen? That they
have attended to newspaper publications, which have gfven
them information on a subject, which has excited universal
attention. Every man in the community has formed some
opinion on it. I will venture to say, that there is not a man in
Virginia, however humble or obscure his situation, or supine
his disposition ; or however much occupied in business, who
has not taken some opinion or impression on this subject,
and communicated it to others. But these things have been
innocently done, without any sentiment of ill will to the ac-
cused. The great majority of the people have received im-
pressions of those transactions from newspaper publications,
without any prejudice against, or even knowledg^ of the ac-
cused. Is it reasonable then to suppose, that the majority of
the people, without any personal ill will against the accused,
without even the least personal knowledge of him, are by these
general and slight impressions, rendered incapable of deciding
fairly and impartially? Can it be reasonable, that the accused
should have it in his power, to object tathe great majority of
the people, as partial and incompetent, on such slight and tri-
vial grounds as these? What is that impartiality which the law
397
requires in a juror? It is a disposition of mind to hear th<^
evidence on both sides, and decide thereon according to the
immutable principles of natural reason and justice. To exclude
from serving on his jury, such an immense majority of the
people, on such slender grounds, would probably secure im-
punity to the accused. There may perchance be some igno«
rant and obscure individual, some solitary hermit, shut up in
the hollow of a tree, or in an inaccessible cavern, secluded n*om
all human concerns, who has received no impression on this
subject, because the history of these transactions has never
penetrated to his solitude. But those who have intercourse
with their fellow citizens, must have heard, in common with
the rest of the community, the many reports of a deep laid
plot and conspiracy against the peace and union of these states ;
that the accused had formed some great ambitious scheme
for his own personal aggrandisement, to accomplish which, he
felt no hesitation in hazarding, no remorse in producing, all
the horrors of a civil war. We are divided into parties who
have different opinions on political subjects. I do not say, that
they are exactly arranged, or united to a man, as to this ques-
tion; but I know that different sides have been taken: that
every man in this community has taken his side, and formed an
opinion either favourable or unfavourable on the subject. But
still the great majority of the people stand on ground of per-
fect neutrality, as to the actual guilt of Burr and his associates.
The impression which they may have received from reports,
and newspaper publications, will vanish like air, as soon as
they hear the evidence, on which they will be sworn to decide.
I think this is the language of common sense, and that it must
convince the court, however it may be disregarded by the gen-
tleman who began the arguments on this point.
He has produced some authorities from Reeves and Mac
Nalli/y which do not bear on the subject in the least degree:
but I shall cite two that do apply to this case. The first was
a decision in the case of Callender, of which however, I did
not then, nor do I yet, approve. I do not think that in Callen-
der^s case judge Chase pronounced the law correctly. I do
not see, any difference between forming an opinion^ and form-'
zng and expressing an opinion. A juryman ought to be exclud-
ed from serving on the jury, if he have formed an opinion^
though he may not have communicated it to any person. It is
Hit formation^ and not the expression of his opinion, that indis-
poses him to attend to the evidence. However it was not my
business then, nor is it now, to settle the law; but I thought it
then settled. The question put to the jurymeii, was, " Have you
formed and delivered an opinion on the subject matter of this
S9S
ipdictment''' There was lathing said as to men's impressionB
in reUtioo to the acts of the accused, or their indulg^g prejudi<»
ces against him. There was not a man among the jury who tried
him, who had not the strongest prejudice against him, for his
improper conduct; and very justly. It was pronoimced to be the
bw, that it was a libel. I never heard it controverted before
these remarks; but that is not the' question now, but a question
which is general, indefinite, and vague; a nice metaphysical dis-
quisition. How ba: a man's mind, by impressions, founded on
mere reports, is rendered incompetent to decide impartially on
legal evidence? The question ought to be decided by the court,
whether a jur)^man be in that state of neutrality between the
United States and a prisoner, which will enable him to decide
impartially. According to CaUeruier^^ case^ it was .sufficient to
esudblish die competency of a juryman, if he had not formed and
expressed an opinion on the subject matter of the indictment;
and, according to that decision, all these gendemen are admis-
sible, because none of them have formied, much less formed and
eq[>ressed such an opinion. In 2 Hawkins^' chap. 43. sect. 29.
on the subject of challenges, it is stated to be law, ^^that it hath
been adjudged to be no good cause of challenge, that, the juror
hath found others guilty on the same indictment; for the indict-
ment is in judgment of law, severally against each defendant; for
every one must be convicted by particular evidence against him-
self;" and in the 28rA sectiojiy he says, that ^^ it had been allow-
ed to be a good cause of challenge, on the part of the prisoner, that
ajuror has declared his opinion before hand, that the party is
guilty or will be hanged or the like; yet it hath been adjudgedy
that if it shall appear that thejurcr made such declaration from
his knowkdge of the catisCy and not out of any ill will to the par*
tt/y it is no cause of challenge.^ Here it is decided, that if a
juryman say, that the party accused will be hanged, or is guzUy
not of the intendon, but of the acty yet if he made this declaration
from his own knowledge of the cause, and not from ill will to
the prisoner, he is a proper juror. But these gendemen have
not declared as much; they have not declared dieir belief that
the accused is guilty of the act^ but have merely stated as the
result of their reflecdon on the transactions in the western coun-
try, that he intended to commit the act. According to the au-
thority of this case, therefore, these gendemen are competent
jurymen. I do not say that this is law positively, but I find it
here written, and it appears to me to be founded in good sense.
According to the doctrine in the other section just read, seve-
ral men may be comprehended in the same indictment; all
of whom may be tried separatelv; and the same juror who has
found a verdict against one of tnem, is competent to try ano-
ther on the same indictment. His former veidict is no cause of
399
c!ludleage. But the evideiice which is admiaaible agtinst one,
may be so against the other* To have abeady decided on that
evidence, is td declare that die party is guiky of the offence, both
as to intention and act: and yet this circumstance of having pro*
nounced a verdict on the same testhnony,does not furnish grounds
of chaUenge against him. Many more cases might be produced,
but these are sufficient to show, that these are proper jurymen,
if they be not under the influence of malice or til wiU against the
accused, whatever general impressions their minds may have
received. I admit, that if any of them had made up his mind,
that the accused was guilty of treason, it would be a good cause
of challenge; but that is not the case with any of tfiem. Mn
Martin has made a quotation from Mac NaUy^ to show that the
court would postpone a trial, because die public mind had been
improperly excited by recent inflammatory publications, touching
the cause depending before it* I will only observe, that if this
were a motion to postpone the trial, this argument might supply,
if the fiKts of such publications existed; but have they manifested
any disposition or wish to obtain a po6^)oneif ent of the trial till
another terra? Why then do they urge such an argument, while
they fail to move for a postponement? They wish to avail them-
selves of a principle, without performing the act, which would
justify its application* But another observation of Mr. Martin
may deserve particular notice; that it would be proper to post-
pone the trial, till a fair and impartial jury could be had*
Here Mr* Martin and Mr* Hay differed as to the precise
import of the terms which he had used, and Mr* Hat proceeded;
He stated, that the community was divided into parties; tiiat
there wtfs an immense preponderance on one side; but that both
parties had ascribed certain designs to Mr* Burr, and had taken
certain impressions; . that these were only the common sentiments
and feelings of the country; and that to exclude from the jury
all those who had these sentiments and feelings, would amount
to a declaration, that the great majority of the people oug^ not
to be trusted with a decision, which might possibly be equal to
an acquittal*
Mr. Wirt. — It is much to be wished in this case, and in every
case, that a fury could be found of tiiose pure ^naterials which
Mr* Martin has desired* He seems to expect, that in ever)*
case, and more especially in die important case which now occu-
pies the attention of the court, the jury should come without any
impression, with minds as pure as the unsoiled snow on Dianas
lap. But is this practicable? Does the experience of the world
justify the hope, that such a jury can be found? The case cannot
exist, and the law does not require it* The authorities relied on
by Mr. Martin, are elementary and abstract; and are, I con-
ceiv^e, not to be trusted, when a question of practice is to be de-
400
cided by the court* They deal in generals; and when they de^*
scend to particulars, they all express a distinct reference, and
point direcdy to the person of the accused. If these books were
fit to be trusted, and did not their generality exclude them
from familiar use, the language used in the specification is
clearly expressive of enmity or ill will agmnst the accused. I
beg leave to mention another authority to show, that these books
are unfit to be trusted as authority. In Reeves^ it is stated, that
any friendship for, or familiarity with the person accused, is a
proper ground of objection to a juror; but these general phrases
are not sanctioned by practice. For iii Tooke^s Trials an objec-
tion was made to John Thompson as a juror, because an inu-
macy of thirty-four years continuance had subsisted between
him and Mr. Tooke; but the objection was overruled by the
judge. These two cases are contradictory. It is important in
every case, that the principles of law should be fixed. It is im-
portant to the people of every nation, that their rules of action
should not be continually floating on the waves of uncertainty,
but that they should be known and settled, in order that men
should know how to steer dieir course. I trust that they will be
always so in this country. Permit me to advert to a decision in
our own country; the case of Callender. I adduce it for the
sdie purpose of comparing it to the doctrine now in discussion.
When Mr. John Basset, one of the jurymen, was called, he chal-
lenged himseU^ because he had seen and read the book (^The
Prospect before Us)^ for the publicadon of which he was prose-
cuted, and made up his mind, that it was a libel; but he had not
made up his mind as to Callender being the publisher of the
libel. His objection was overruled, and he was sworn on the
jury; though he had made up his opinion, that the publicatioa
was a libel, which I conceive to be the principal point. He only
did not know who was the author. But what is the great ques-
tion of libels in England? Is it who is the author? Is it about
the mere fact of publication, that the brightest tears of eloquence
are shed? The question in every case is, liM or no libeL The
inquiry always is, whether it be a libel or not? The fact of pub-
licadon is a question of a comparatively trivial nature. Then
when Mr. Basset was admitted on the jury, according to the idea
of one of the counsel on the other side, Calender was robbed of
half of his defence as to that juror; for the great question had
been previously setded in his mind. The fact to be ascertained
was unimportant. Apply the principle of this decision in that
case to this case. We will suppose it to be the fact, that these
jurymen may have said, that the assemblage of men on Blan*
nerhasset's island was high treason in the panics composing it;
but they knew not, and this would not prove, that colonel Burr
was there or connected with ik Here the two cases would be
verv similar.
401
These gentlemen would have made up their minds, that the
assemblage was treasonable. John Basset mad^ up his mind, that
the publication was a libel. The great facts would be fixed in the
minds of the Jurors in both cases, and nothing would remain, but
to trace the facts to the party accused. But die present case falls
far short of that. These gentlemen say, that they have taken up
some impressions from newspaper publications, that Burr had trea-
sonable designs; but they have not said, that the assemblage on '
the island was treason, which consists of intention Rad fact; and
if they had said so, they would be good jurymen, according to
Basset's ease. He had made up his mind on the great Jact^ that
the book was a UM; and in this supposed case, these jurymen
would have concluded, that the act of meeting armed, on the
bland, was treason; but as they have not gone so far as Basset,
and he was received as a juror, the court, I presume, will receive
them as jurors. In another point of view, Callender's case was
stronger than this. In that case, there was no possibility of
counteracting the impression that Basset had of the fact, that the
book was a libel. His opinion was formed upon the book itself;
and there was no other evidence to produce, to change that
opinion. But these gentlemen have seen nothing but the state*
ments in the newspapers. They have received no such fixed im-
pressions; their conviction is commensurate with the evidence.
They say, that their conviction has gone as far as the depositions,
which have been published, seemed to justify, but not farther;
that they were willing to hear other evidence, and to retract
their opinions. But Basset's opinion was fixed, and admitted of
no conflicting evidence. If then colonel Burr would be stripped
of one half of his defence by the admission of these gentlemen
on his jury, CaUender was stripped of much more than half of his
defence by the reception of Basset on his.
I said, when I first rose, that the kind of jury which Mr.
Martin contended for, could not exist. Necessity has given the
law in other cases; and whenever that necessity appears, submis-
sion to it must invariably follow. Such a juiy could not exist
unless it had fallen from heaven. But this is not the only case
in which a purely impartial jury could not possibly be obtained,
from the very nature of things. Consider the English rebellions
of the year 1715 and 1745. Recollect when the great national
question between the pretender, and the house of Hanover which
occupied the throne, was so warmly agitated. The people took
up different sidfcs of the question, not only with zeal and ardour,
but even with phrensy. Their gazettes and magazines were
filled with it. Every man in the nation was animated with the
utmost enthusiasm, which carried him beyond the bounds of
Teason and propriety. They not only wrote, but they fought for
it; and that in so little a kingdom, the very clang and din of
Vol. I. 3 E
402
the battle of Culloden was heard in every part of it. Was
this a case in which an impartial jury could have been ex-
pected? Could they find any who had not formed an opinion on
the cause of the pretender, and on the nature of the rebellion?
Every man in the kingdom had made up his mind on the great
facts; yet the rebels of the years 1715 and 1745 were tried, by-
parties who knew these facts, and hanged. Those of the latter
were tried, perhaps, by jurors who had met and fought them on
the plains of Culloden* Do you believe that the question, whe-
ther they believed that the pretender had an intention to seize
the tlmme, was put to those jurors who tried his adherents}
His intenuon, and that of his followers, were facts of public
notoriety. The rule of Mr. Martin is a good rule, as it exists
in the mind of a good man, or perfect philosopher. It is a good
rule for Utopia, or for Arabia Happy, or as a standard of
theoretic perfection. But on those who have human passions, it
is in vain to expect it to operate. Look at the trials in the year
t794 of Tooicj Hardy ^ Thehvally and others. Were the jurors
who tried these men entirely without impressions? Did the
causes of their prosecution produce no excitement? Look at the
trials in Ireland of men who fought at the batde of Wexford*
Were they tried by men who were entirely indifferent; who had
received no impressions firom the great events i^ their country?
Had these created no interest, no feeling? Thus it was in the
case of Hamilton Rowan: men who were at the very focus of
public illumination on that occasion, were to sit on his trial!
Could such men have come into the jury box,. as if they had
never seen the books, nor heard of the causes on which the pro-
secutions were founded; as if they had come from another pla*
net? No such diing could be rationally expected. You will find
that the principle, laid down by Hawkins^ is correct. ^^ That if a
juror have declared before hand, that the party is guilty, or will
be hanged, or the like, and made such declaration itom his know-
ledge of the cause, and not out of any ill will to the party ^ it is
no cause of diallenge." It is justified by the reason and experi*
ence of mankind. Impressions from the public prints, uncon-
nected with any iU.wiU to the accused, cannot therefore be m
cause of challenge.
From the plains of Culloden and Wexford, let us come to our
own country. There have been no batdes in this country latdy;
but there has been a subject which has agitated every part of the
country; in which every citizen must have felt a warm interest.
A man heretofore distinguished, has been charged in all the pub-
lic prints, with a crime so destructive of the peace and happiness
of this country, that he who could peruse these prints for the
last twelve months, with adamantine mdifference; he who could
read the affidavits of generals Eaton and Wilkinson without
403
some emotion, cannot be a man. No man could see these things
without feeling. I put it to your hearts to determine, whether
any man who has a soul, that could grace the bosom of a man,
could do it. There is not that base frigidity in the American
character which is insusceptible of impressions on subjects of
great moment. Look at one of the very jurors whom the ac-
cused has selected. No man acknowledges with more pleasure
than I do, the correct conduct of that gentleman. I have long
known and respected him. No man can be more conscientious*
Yet he declares, that from the statements in the newspapers, he
had some impressions of the views of the accused. Could less
have been expected from any man? This was the source from
whence hid impressions were derived; and not hostility to the
person of the prisoner himself*
In England^ we see from the authority of Hawkins^ that if a
person summoned as a juror, have declared, that the party accu*
sed is guilty, or will be hanged, and made this declaration ^oifi
his kntnuledge of the cause^ and not from ill will to the party y it
is no cause of challenge; and if he have found another man gtdlty
under the same indictment^ it is no cause of challenge. As this is
the law, how can it be a cause of challenge, that these jurymen
have received some impressions from the public prints? It may
perhaps be said, that a juror who had found another man x guilty
imder the same indictment, must have made up his mind on the
whole evidence in the cause; and that therefore he ought not to be
challenged by another party prosecuted in that indictment. No-
thing can be more manifest than the absurdity of this reasoning.
It amounts to this: He is a good juryman, if he have seen and
heard the whole evidence; but if he have only heard some slight
circumstances, a small portion of the evidence, then he cannot
be admitted as a juryman! Because his mind is locked up for
ever by his former verdict, he is a good juror; but a mere fleet-
ing impression disqualifies him entirely! This, surely, is not even
the semblance of an argument Take the other ground men*
tioned by Hawkins j that ^^it is no cause of challenge to a juryman,
that he had declared from his own knowledge, and not from ill
will to the prisoner, that he is guilty, or will be hanged," and
apply it to this case. To have made such a declaration yrom his
own knoxvledge^ means, that he made it on the evidence of his
own senses. As in the case of murder: suppose a juryman, had
by accident, seen the person accused actually commit the mur-
der, but has no ill will against him, he is a good juror; because
it is impossible to change his opinion. But if a gentleman of re-
spectability will say, that he has a slight impression on his
mind from mere reports, or newspaper statements, he is not a
good juror at all. Because a man's mind is locked up against
evidence and argument beyond the possibility of persuasion he
404
18 an impartial juryman: yet he whose mind has only received
a. triyiai impression, and is open to evidence and conviction,
must be rejected as partial and improper. This is the substance
of their argument.
I trust, that whether you take the authority of this court, or
the practice in England into consideration, you will find, that
these gentlemen, having no ill will against the accused, and but
a slight impression relating to the cause, and not to him per-
sonally, ought not to be rejected. They have stated themselves,
that they had but a slight impression on their minds. If the
question therefore depended on the depth of their impressions,
uiese gentlemen could not be excluded. When a man, who has
read some reports in the newspapers, professes himself ready to
hear further evidence, his mind is open to conviction, he is a fair
juror, and cannot be challenged as partial; for as to a slight im-
pression, it was impossible even to hear of treason against their
country, without some emotion. I trust, therefore, that these
gentlemen will be considered as proper jurors.
Mr. WiCKHAM spoke to the following effect. I will endea-
vour to show, that the observations of the gentlemen on the
other side, and their construction of the law, are incorrect.
Their whole arguments rest on the basis of necessity; but the
r^ntleman last up, has placed it in a greater variety of views,
heard him with great pleasure. His eloquence, which is at all
times pleasing, was at this time particularly interesting; but he
used so many tropes, and scattered so many flowers, that he re-
minded me of a Roman epigram on a lady, who was so com-
pletely enveloped in decorations, that she was the smallest part
of herself. It was precisely so with the gentleman's argument.
It was so perfectly ornamented and covered with figures and
graces, that it constituted the least part of itself: and it was only
by lifting a flounce here, and a furbelow there, that you could
discover the argument. What does he state? That from neces-
sity, and the nature of things, there can be no jury obtained,
without^ some impressions. How does he prove it? The gentle-
man has hurried us to England and the battle of Culloden, with
as much ease as if he had waved the wand of a magician, and
told us, that the din of arms was so loud, that it might be heard
six or seven hundred miles! He has compared the judicial de-
cisions in that country, at the period of the rebellion, to the case
now before this court, without having attended to the natural
and manifest distinction between them. It was clear to every
man in England, that there was a rebellion in the country. An
army traversing the country in military force and array: places
taken, and battles fought. Lords Balmerino, Kilmarnock, and
Cromartie, and many other men of distinction, were known to
405
be engaged in the cause of the pretender, aiAconcemed in those
transactions. Every man in the country could reason upon the
case; the basis of his decision was a chain of historical facts,
known and recorded, which could neither be distorted by pre-
judice, nor destroyed by falsehood. How did the courts decide,
that there was a jury to be found in England, which could try the
prisoners impartially? The existence of the rebellion was an his-
torical fact known to every man before the trials; but .whether
the particular individuals accused were actively concerned in it
or not, depended on the evidence against each of them. The
case now before the court would have been precisely similar, if
it had been founded oa historical facts. If it had been established,
that colonel Burr, with twenty or thirty thousand men, and a
number of gun boats had descended the Ohio; that he had taken
New-Orleans, had fought several battles with general Wilkin-
son, and had been brought before this court for trial, the jury
would have to decide, not upon their own prejudices, but on his-
torical facts, and the evidence against each person accused. But
where are the established facts in this case? The president has
declared, that there is no sort of doubt of his guilt. It is not pre-
tended, that he could know the facts himself, and he is liable to the
deception of others. Is his tciori/ to be taken as evidence in a court
of justice, and that adduced not even on oath? But general Wil-
kinson has said so also. But his credibility may be hereafter im-
peached; he is only a witness to prove certain facts; but does he
say, that colonel Burr is guilty of treason? The supreme court has
decided, that his evidence was not relative to the charge of trea-
son. This whole tale then is referred to the affidavit of general
Eaton, an ex parte witness. It rests on that alone; of which I
will say, though we may not be disposed to assert, that it is un-
true, yet that it must be admitted, that his tale is marvellous,
and not reconcilable to itself. Is this accusation then founded
on historical facto? Is it a piece of history that is known to eVery
man in the country? This story, which has excited so much alarm
and interest in every part of the United States, is reduced to the
testimony of a single witness, who tells a most wonderful tale.
How then can he draw a comparison between this case, and that of
the rebellions in England? The gentleman certainly did not consi-
der the cases well, or he would not have thought of such a pa-
rallel. The batde of Culloden, for instance, was a matter of pub-
lic and imiversal notoriety; it was known to every man, woman
and child, in England; and it could have formed no part of the
inquinr, on the trial of the rebels, whether such a batde had
been tought or not?
There is not a single deposition to prove that treason has
been committed. The president's letter, though it confidendy
ascribes guilt to colonel Burr, does not say, that he was guilty
406
of treason. If one of these jurymen be not disqualifi^ by a
preconceived opinion of colonel Burr's treasonable intentions,
the rule will apply to the rvhokjury; and if one of those gen-
tlemen who think he had treasonable designs, can be sworn to
try him, ttvehe of them can. What then would be our situation
as his counsel? Twelve jurors are impaneled, all of whom be-
lieve him guilty of treasonable intentions. The crime of treason
consists pf intention and act. In what attitude should we stand
before such a jury, to vindicate the innocence of colonel Burr's
intentions? What course could we take? Their minds would be
satisfied sdready as to his intentions; it would be in vain to Urge
evidence or authorities, to show that he had no treasonable de-
signs. Would we attempt to make an impression on such mar-
ble? We might as well abandon at once the cause of our client.
The jury would be made of such stubborn and impenetrable ma-
terial, that he would be sure to be sacrificed. As an aggravation
of this evil, it is to be observed, that their belief respecting
colonel Burr's intentions, has an influence and direct operation
on the question, whether an act have been ]>erpetrated or not.
They will listen more attentively to evidence that will confirm,
than to testimony that will contradict it. Suppose there are two
witnesses, one who thinks there was an overt act committed, and
another who thinks there was not; the juryman who has made
up his mind, as to the intentions of the accused, will very pro*
bably believe the testimony which maintains the intention, and
will not believe the man who swears to the fact in opposition to
the intention; because the act is made more probable by the in-
tention, which is the first step towards it : but a juror who had
not believed that the accused had criminal designs, would veiy
probably not believe either of the witnesses, as their testimony
was contradictory, or might believe him who swore that there
was no overt act. I insist, that twelve jurors, with impressions
fixed as to the intentipn, though an honest, could not be an /m-
\ partial^ jury; because the intention has a direct operation, not on
a part only, but on the whole « cause; it bears directly cxi every
point of the cause. TAa^ juror must be more than man, who be*
lievingthe accused guilty as to intention, will be able to stop at
the point of sober investigation, and not permit his judgment to
be influenced by it with respect to the commission of an overt
act. The man whose belief is made up as to the intentions of
colonel Burr, cannot be said to be impartial on any point in the
cause. Let us suppose a very possible case; that six jurors are
impaneled, who say, that they believe he had treasonable inten-
tions, but they know nothing of an overt act; and six more are cal-
led up and sworn, who admit that they have an impression as to
an overt act having been committed, but as to the intention, know-
nothing. Six have taken up one opinion and six another. Their
}
407
opinion on the whole is unfavourable to the prisoner. How could
his counsel address them on either of those points? If they ad-
dress diem on the intention, six of them are adamant on that
point; and if they address them on the other point, it will be in
vain, because six of them are equally obdurate. On either side,
they would meet with prejudice and resistance* It would be like
the case mentioned in Tristram Shandy, of the abbess and nun,
where it was necessaty to pronounce a certain criminal word,
to make their mules move with their carriage; it would, have
been a sin for either of them to utter the entire word, but
they divided it into two parts; one articulated one part and the
other the other, and thus effected their purpose, and avoided all die
sin of the expression. One half of the jury think the intention
existed, the other think the fact was perpetrated^ and by dividing
the transgression between them, and compromising the intention
and act, they may find a verdict of guilty. Those who have
made up their minds as to the design^ will readily concur with
those who think that the overt act is unquestionabk; and diose
who think the overt act notorious^ will require but little persuasion
to believe, that the intent was criminal. But on many occasions^
there is no doubt, but the whole crime consists in the intention;
and the whole inquiry is, whether there were a criminal intent
or not?
I will now proceed to answer the arguments of counsel in
their order. Mr. Mac Rae says, that the standard with respect
to the competency of jurors, depends on whether they have a
personal prejudice or ill will against the accused or not? What
is meant by the y/vord personal f Is it a dislike to the appearance,
the countenance, or matures of a man? If it depended on this,
colonel Burr would stand a better chance than most of his coun-
sel; perhaps than most men. But if you believe him guilty of a
crime, is it not prejudice against him? Is it not prejudice to en-
tertain such a belief against any man? The usual ground of pre*
judice against a man is, that he is guilty of criminal conduct.
But it is said by Mr. Mac Rae, that it would be necessary, in
order to exclude them as jurors, that they should have said, that
they thought colonel Burr had been guilty of treason in connex-
ion with Blannerhasset We have nothing to do with Blanner-
hasset. I'hey are not jomed together in the indictment* The
complaint is not now before the court* Some of these gentle-
men say, that they believe, they intended to take New-Orleans.
It should have been a joint indictment against them: and they
could then know the charge in the indictment, and meet it with
the necessary defence; but there is nothing in it about New-
Orleans, and joint treason with Blannerhasset.
But ** Callender's case is directly in point, where Mr. Basset
was determined to be a proper juryman.'* What was it? Did he
408
pronounce any opinion on the intention of Callender? He said
the book was a libel. That was not an opinion^ but z fact. But did
he say, that Callender was the author or publisher of it? Sup-
pose he had been called on for a definition of sedition. What
would he have said? Did he say, that he had made up his mind,
that Callender was guilty of intending to publish a seditious li-
bel? Callender was defended by several learned counsel of this
bar. Did they attempt to deny that it was a libel? Did Mr.
Randolph, or the other gentlemen, who managed the impeach-
ment of judge Chase, in the senate of the United States deny
that it was a libel? It ought, also, to be recollected, that this very
senate of the United States decided by a majority of eighteen
against sixteen, that the decision of judge Chase, in not rejecting
Mr. Basset as a juror, because he said, that he had made up his
mind from the extracts said to be taken from the book, that it
was a libel, was illegal. Sixteen, out of thirty-four, thought it
correct, and eighteen thought it corrupt*. This was the case, if
I recollect right. I then thought, and still think, the opinion
which he gave, was law. It was palpable and manifest to every
person, that the book was a libel; and the declaration of that fact,
is not like imputing a criminal design to the party accused; and
therefore the admission of Mr. Basset as a juror, though cor-
rect and proper, ought not to be considered as a precedent for
the admission of these gentlemen on this jury. If these gentle-
men came forward and gave a correct definition of treason, they
would be improper jurymen. They ascribe such intentions to the
accused, as may support the charge of treason.
But these jurymen say, that they think they can give a fair
verdict. I mean no reflection on the gentlemen, by saying, that
they may be mistaken. I am confident they have no intentional
prejudice. But what is prejudice? Do not most men believe their
own opinions to be correct? Is it easy for every man to discern and
retract his erroneous opinions? If a man were to go so far as to say,
that he could conquer prejudice, still it ought only to be admitted,
that he believes so: the frailty of human nature, forbids com-
plete confidence in such cases; his belief ought not to be depend*
ed upon, however respectable he may be.
But Mr. Hay has given us a definition of an impartial juryman,
which neither Mr. Martin nor I would ever have thought of.
What was it? That the common sentiments and feelings of a
majority of the people of any country, form the criterion of im-
partiality and truth! Take this position to be correct, let this
uew principle l)e adopted, and the study of the law will be ren-
* This was immediately discovered to be a mistake. The second article of
xhe impeachment was for overruling Mr. Basset's objection. On this articles-
ten senators only voted guilty, and twenty-four not gnilty.
409
dered very easy and short; and to some gentlemen^ very plea-
sant. It would save a great desd of time and trouble. A student,
instead of poring over the black letter in his own doset, and
wearying his faculties for years in search of principles and scien-
tific knowledge, need only go about to barbacues, horse-races,
cock-fighting, and other public meetings and places of amusement,
to learn the common sense of mankind! A lawyer would consult
his law books, but Mr« Hay would go about collecting the sense
of the nation. Mr. Wirt has given us another and a better rulei
to which most men would give the preference. He has told us,
that the principles of law ought to be certain^ and not continually
floating on the ocean of uncertainty. But he is contradicted by
Mr. Hay. He advises <U8 to follow the principles of law, but
Mr. Hay prefers the popular opinion; the sentiments of a mino-
rity of th^ people to be ascertained, I presume, by officers ap-
pointed to collect them in every district..
Mr. Hay denied that he expressed such a sentiment, and in-
sisted, that his words and meaning were misrepresented.
Mr. WicKHAM proceeded. The gentleman did say, that an
impartial juror was one who had the common sentiments of the
mass or m^ority of the people. Compare this sentiment with
diose of Hale, Hume, Robertson, and other eminent writers,
and see how very different they are. I understood him disdncdy,
that impartiality in a juror, depended on his concurrence with
the public sentiments. That is the true meaning of what he
said. I follow it up to its consequences, and if the result be ab-
surd, he is not, for that reason, at liberty to deny his position. Is
every man in the community to be consulted? Is there then to
be an ^^appel nominel^^ as there was in France, when the
French people were asked, '^ Shall Napoleon be emperor of the
French?" The puUic opinion cannot be truly ascertained. I do
not believe that the opinion of the jurymen, Whose case is undef
consideration, is this public opinion which is so much referred
to; but if public opinion, and sentiment, and feeling, were to be
resorted to as the true test of impartiality, what would he do with
the passions of the turbulent, the lawless, and the violent? Has
he any motive for establishing this public opinion as the rule
of justi(;e and fairness? Has he been scattering and fomenting
these popular prejudices, and spreading declarations of the guilt
of the accused all over the country? He has repeatedly dedared,
that he has no doubt of his crime. I hope that there is no con-
nexion between his criterion of impartiality, and his freauent
declarations of colonel Burr's guilt. Mr. Hay M;rees, that if they
attempted to make proselytes, it would justify their rejection.
Several of these jurymen did acknowledge that they had publicly
argued to inculcate a belief of colonel Burr's guilty desi^s, and
Vox. I. 3 F
J
41Q
justified the measures adopted by the govemmeat against him.
On the gentleman's own admission, therefore, they are not pro-
Ecr jurors. I mean no imputation against these gentlemen; they
ad a conviction on their own minds, of his evil designs, and
they wished to communicate it to others: they arc to be re-
spected because they acted under a conviction of the truth. But
this arguiQent proves too much; that if every one of these jury-
men had declared, that colonel Burr was guilty of an act of trea*
son, it would make no difference, but thpy would a// be impar-
tial jurymen; because it happened to agree with the public opi-
nion. It would prove every thing. It might prove, that die
sentiments of ^very man who did not conform to the public
opinion, when it was under a different direction from what it is
at present, were then wrong; and that those who do not now
subscribe to what is called public opinion, are as culpable as
those in the minority were formerly; so that what b right oae
day, may be wrong another.
The gentleman has candidly informed us, that the country is
divided into two classes; and that eVery man has taken his side
of this question. I should hope that the gentleman's position
was not correct, at least not invariably. If it were so, it would
be unfavourable to truth and justice. The majority always pos-
sess sovereign power in the United States; but the majority
change. He who has had the happiness of thinking and acting
formerly with the great majority of the people of the United
States, finds himself now decidedly opposed by such a majority.
The public opinion is continually fluctuating; and what was law
under the administration of John Adams, is not law under the
administration of Thomas Jefferson. What was public opinion
then^ is not public opinion now. In fact, it is impossible to know
what public opinion is. So that, according to the gentleman's
doctrine, the impartiality of a juror, instead of being founded
on correct, immutable, and permanent principles, woidd b« con-
tinually floating on the waves of uncertainty; an evil which is so
much and so justly deprecated by his colleague.
But it is saidy on the authority of Hawkins^ that a man may
be a proper juror to try a person accused, although he knows the
fact on which the prosecution is founded. Does any one of these
gentlemen say, that he knows the fact? Not one of them pre-
tends to such knowledge. What then can be said of an autho-
rity that has no application? It is not necessary to acknowledge
or deny the validity oi this authority.
But the gentleman says, " that it is impracticable, or some*
th'mg approaching an impossibility, tor obtain an impartial jury,
if the objection against these jurymen shall prevail. We deny
this impossibility; we have already obtained four jurors, and
have ao doubt the rest can easily be got, I will say nothing of
411
, t)ie panel beings composed of men, of whom so many had made
up their minds. I have no doubt that it was accidental, and that
the marshal intended to discharge his duty with fidelity and
propriety.
Mr. Wirt says, that these elementary writers, Hale^ Hawkms^
Reevesy and others, are not to be regarded; that they are not al-
ways the test of truth. It may be admitted, that they are not
uniformly so, but it is' certain that they are, and ought to be
generaDy so considered. Some of these elementary authors,
such as Lord Coke^ are of inestimable value.
As to the variance stated by Mr. Wirt, between one of the
elementaiy principles "of Reeves^ and a case determined by chief
justice Eyre^ the case of Home Tooke; a reference to the report
of that trial will shew, that that case had not been accurately
stated to this court. I have too high a respect for Mr. Wirt, to
say, that he has wilfully nusrepreaentedtht case; but he has cer-
tainly misunderstood the opinion of the court. Thonipson, the
juryman, was not in court* He had exercised the discretion of
absenting himself; and the Excuse made for him was, that he
had been too long ai;Kl too intimately acquainted with the priso-
ner. Was it a question, whether he were to be received as a juror
or not? Was it a question put to the prisoner in court, ** Do you
Uke this man or not?** It was not. The chief justice said, that "it
was no excuse.** No excuse for what? Not from serving on the
jury, but for not appearing at all in court. The expression of
chief justice Eyre, was very mild, in answer to the apology made
for the absence of the witness.
Mr. WiiLT here interrupted Mr. Wickham, and said, that he
would submit it to any candid mind, which of them gave the
correct interpretation of the passage. He read it and made some
comments on it.
After some observations by both gentlemen, the Chief Jus-
tice aaid, that be had no doubt, that each of the gentlemen had
stated, what was the conviction of his own mind; but that be
thou^t it immaterial to the question now in discussion, whidi
of them was correct.
Mr. Wickham. — I shall miake one single remark. We came
here to try colonel Burr on the law and the evidence, and hot by
the public opinion. The life of no man would be secure, if he
were to be tried, not according to the known rules and prin-
ciples of law, but the caprice and levity of what is deemed pub-
lic opinion. A trial by a prejudiced jury would be nothing but a
mockery. What was the meaning of the provision in the constitu-
tion, but to protect persons accused from the unjust violence of
popular opinion? Was not the security of innocence against unjust
persecution, the object of the amendment of the constitution?
^
1
\
412
Was it notkaown to theframers of our coiistitution, who had the
volume of human nature before them, that the time would at
length arrive, when some individual would be held up as a mark
to public indignation, and sacrificed as a victim to popular phren- ,
sy, and political jealousy? Was it not to prevent this, that the
constitution, originally forbade the legislature to change the law
of treason, by fixing it within precise and well defined limits?
Was it not for this cause, that a subsequent amendment was in«
troduced, declaring, that ^^ in all criminal prosecutionsj the occu-
aed shall enjoy the right to a speedy and public trial by an impar-
tial jury ?" I contend, that all these salutary precaiuions have
been taken to guard against the pernicious effects of this public
opinion, and that diese ^ndemen being prejudiced against the
accused, cannot be considered as impartial within the meaning of
the constitution.
Mr. Randolph, at the request of the court, read judge
Chase's answer to the second article of the impeachment against
htm, whidi arraigns his decision in the case of Basset. See ap*
pendix to the Trial ofju^e Chase ^ pages 19, 20, and 21.
Mr. Handolfh then observed, that he had not intended to
say any thing on the subject now discussed, because he expected,
that objections would have been made to particular individuals
only ; but that lie had since seen, that a most serious blow was me-
ditated at the whole system of jury-trial. For, said Mr. Randolph,
whether accident, or Heaven have pven us this boon, it is our
duty to preserve pure and perfect, and transmit unimpaired to
posterity, this only palladium against oppression. Vain will be
all this parade about the trial by jury, if a judge will calmly sit
on the bench, and connive at its violation. If the courts do nof
defend this sacred right, can it be said that any man's life is
safe? The trial by jury is not a beneficial reality, but a mere
fiction of law. Away with jusdce^ away with courts: uH me
noC that I am safe in my own habitation, if a doctrine lUce this'
btt to prevail. It is a mockery sir, to talk of the benefits of the
trial by jury, if men whose minds are impressed with preju- /
dices agsunst a person accused, shall decide his fate! Can they
be impartial, who on a charge consisting of several points, have
made up their minds against him on all, except a little fragment?
Would it be conformable to the equal administration of justice,
to force sucli a jury on him?
Analogies have been stated between other crimes and the
charge now before the court. Other gentlemen have quoted the
; .cases of murder and burglary. To these I shall add the crime of
uttering false money, knowing it to be false. If a man brought
forward as a juror on the trial of a person charged with this of-
fence, were to state, that he knew not whether the accused pas-
413
aed.the money or not, but that he was certain^ he must have
known it to be fidse, would he not be rejected as an incompe*
tentjurorf
But we are told^ on the audiority <rf Hawkins^ chap* 43. see*
28. that by the hiw of Eng^d, it has been adjudged, that *^ if
a juror has declared befiore hand, that the party is guilty, or will
be hanged) or the like^Jt is a. good cause of ch^enge; but if the
jurcNT made this dedaradoii feom his knowledge of the cause,
and not out of any ill will to the party, it is no eause of chal-
lenge)'' and in sees. 29b ^ that it iiatfa been adjudged to be no
good cause of challenge, that die juror hath found others guilty
on the iame indictment."
Sir, does not tins doctrine strike your mind with astonish-
ment? Not if you advert to the reference made in support of it*
He has taken a posterior doctrine in preference to an anterior;
so that it would seem, that the latter had been a revocation of the
former*. But examine tt» What does he refer to? To the year
books in the time of Henry die /th, when liberty had not been
established in Eng^bnd* This verv Hawkins^ in whose bloody
doctrine confidence is now plaSeed, instead of advocating the
more liberal doctrines of his own day, on the subject of juries,
refers to the reign of the Tudors, when not a spark of liberty
existed. Were he correct in his assertion, that this was the law
of England, what influence oug^t it to have on the practice in
this country; where the ternits of the constitution are so explicit
and imperative, that the accused shaU enjoy the right to a speedy
and public trial by an impartial jury f Will our courts subscribe
to his inferences? He had advanced a contrary doctrine in a pre-
ceding section. Will you say that he shall be justified in sup-
porting and drawing contradictory principles and conclusions? If
he maintain positions which are perfectiy inconsistent, ought
they not to be tried by a critical examination of the authorities
to which he refers? and if the court find that his assertions are
not fairly deducible from the authors relied on, will they not put,
him asi^^.and declare thsd: be has no authority on this point? If
the gentleman who quoted him, had looked at the 27th section
of the same chapter, he would have found all the doctrines on
which he commented so fully, entirely destroyed. He there says,
that ** this exception against a juror, that he hath found an in-
dictment against the party for the same cause, hath been adjudged
good; not only upon the trial of such indictment, but also upon
the trial of another indictment or action, wherein the same mat-
ter is either in question, or happens to be material, though not
directiy in issue." So that wherever it is the same question, on
which he decided in a former indictment, or happens to be a
material point, he is to be excluded. Is it not all-important,
what the intention is? Is it not a material point? According to
414
^ia section, if.it iae a material pdnX, he is to be excluded as a
juror, because he had made up his mind before on the same sub-
{'ect. It is not merely that if he decided on die whote, but if he
lave only decided a material poi$U of due same eaose, heis inca-
pacitated from serving as a juroi^.
Mr. Wickham has anticipated me, in showing the eflB^st of
different jurors acting on a conviction oL diflFerent pafts of the
guih; that one juror having formed his opinion on one pointy
and anothe^ on another) they may compromise, till by mutual
con^lacency and acquiescence, diey make the accused the vie*
tim, by a verdict of condemnation..
I will make one observation on the case of Hotne Tbolir, to
shew that Thompson did not attend the trial, and that the con-
struction which gentlemen put on it, is nicorrect. If Thompson
had been present, the law applying to die case, was different from
what they contend it to be. It is said, that a friendship or ind-
macy with a party in a suit, is not a cause of exception to a wit-
ness, though it always is to a juror* Some books say, that if a
juror be returned by a party, he is disqualified {k>m serving.
The law with respect to the admission or exclusion of a jury-
man, must vary according to the circumstances^ and die nature
of the influence, which a-f arty in a cause has over his mind* .
They suppose the question before- die judge to have been, ^ %all
he be excused from serving as a juror or not?*' It was not so. It
was, whether he should be excused for non-attendance? A mere
acquaintance with another for thirty-four years, does not exempt
a man from being on a jury to try that other; but if the intimacy
atid friendship be so great, as to create an influence over him, he
would be rejected of course.
I shall not detain the court any longer, but sfaaH conclude with
a hope, that you will preserve the purity of jury-trial from viola-
tion; that you will take more than common pains to preserve it
free and unfettered. I appeal to the volume of human nature; I
appeal to the human heart. I could appeal to Mri Hay's great
tribunal itself^ to determine, whether fliere ever were a-^an who
could dispassionately and impahiaUy try a cause, ^tsk half of
which he had already prejudged?
Mr. Martin then observed, that in Tooke^s case, no chal*
lenge was stated to have been made to Thompson the juror, by
either the king or the prisoner; and of course Jthe question could
4iot have occurred, whether he should be excused from serving
on the jury.
The Chief Justice then delivered the fc^wing opinion.
The great value of the trial by jury, certainly consists, in its fiur-
ness and impartiaKty. Those who most prize the institution,
415
Kize it because k fumtsbefta tribunal, which may be expected to
uninfluenced, by any undue bias of the mind*
I have alwajiv conceived, and still conceive, an impartial jury •
as required by the common law, and as secured by the censtitu-
tion,.mu8t be composed of men, wbo will fairly hear the testimo-
ny which may be offered to them, and bring in their verdict,
according to diat testimony, and according to the law arising on
it. This is not to be expected, certainly the law does hot expect
it, where the jurors, beforer they hear die testimony, have delibe-
rately formed and delivered an opinion,. that the person whom
they are to try, is guilty or innocent of the charge alleged
against him.
The jury should enter upon the trial, with minds open to
those impressions, which the testimony and the law of the case
ought to make, not with those preconceived opinions, which
will resist those impressions*
All the |Mt>visions of the law are calculated to obtain this end.
Why is it that the most distant relative of a party cannot serve
upon hb jury? Certainly the single circumstance of relationship,
taken in itself, unconnected with its consequences, would furnish
no objecticm. The real reason of the rule is, that the law sus*
pects the relative of piotiality; suspects his mind to be under a
bias, which will prevent his fairly hearing and fairly deciding on
the testimony which may be offered to him. The end to be oh-
tsupied is an impartial jury; to secure this end, a man is prohi'^
bited from serving on it, whose connexion with a party, is such
as to induce a suspicion of partiality. The relationship may be
remote; the person may never have seen the party; he may de-
clare that he feels no prejudice in the case, and yet the law cau-
tioudy incapacitates him from serving on the jury; because it
suspects prejudice; because in general, persons in a similar situa-
tion, would feel prejudice.
It would be strange if the law were chargeable with the
inconsistency of thus carefully protecting the end from being de*
feated by particular means, and leaving it to be defeated by
other means. It would be strange if the law would be so soli-
ckous to secure a fair trial, as to exclude a distant unknown rela-
tive from the j^ry, and yet be totally reoardless of those in whose
minds feelings existed, much more unfavourable to an impartial
decision of the case. ^
It is adnutted, that where there are strong personal prejudices,
the person entertiuning them Is. incapacitated as a juror; but it |s
denied that fixed opinions respecting his guOt constitute a similar
incapacii^* '
. Why do personal prejudices constatute a just cause of chal-
lenge? Siolely because die individual who b under their influ-
ence, is presumed to have a bias on his mind, which will prevent
^ 416
an impartial decision of the case, according to ^e testimony*
He may declare that notwithstanding these prejudices, he is de^
termined to listen to the evidence, and be governed by it; but
the law will not trust him.
Is there less reason to suspect him who has prejudged the
case, and has deliberately formed and delivered an' opinion upon
it? Such a person may believe that he will be regulated by testi-
mony, but the law suspect him, and certainly not widiout rea-
son. He will listen with more favour to that testimony which
confirms, than to that which would change his opinion: it is not
to be expected that he will weigh evidence or argument as fairly
as a man whose judgment is not made up in the case*
It is for this reason that a juror who has once rendered a ver-
dict in a case, or who has been sworn on a jury which lias been
divided, cannot again be sworn in die same case. He is not sus-
pected of personal prejudices, but he has formed and delivered an
opinion, and is therefore deemed unfit to be a juror in the cause.
Were it possible to obtain a jury without any prepossessions
whatever, respecting the guilt or innocence of the accused, it
would be extremely desirable to obtain such a jtuy; but this is
perhaps impossible, and therefore will not be required, llie
opinion which has been avowed by the court, b, that light im-
pressions which may fairly be supposed to yield to the testimony
that may be offered ; which may leave the mind open to a fair
consideration of that testimony, constitute no sufficient objec-
tion to a juror; but that those strong and deep impressions,
which will close the mind against the testimony that may be
oiFered in opposition to them ; which will combat that testimony
and resist its force, do constitute a sufficient objection to him.
Those who try the impartiality of a juror, ought to test him by
this rule. They ought to hear the statement made by himself or
given by others, and conscientiously determine, according to their
best judgment, whether in general, men under such circumstan*
ces, ought to be considered as capable of hearing fairly, and of
deciding impartially, on the testimony which may be offered to
them ; or as possessing minds in a situation to struggle agwnat
the conviction which mat testimony might be calculated to pro-
duce? The court has considered those who have deUberately
formed and delivered an opinion on the guilt of the prisoner, as
not being in a state of mind fairly to weigh the testimony, and
therefore as being disqualified to serve as jurors in the case.
This much has been said relative to the opinion delivered
yesterday, because the argument of to-day appears to arraign
that opinion, and because it seems closely connected with me
point which is now to be decided.
The question now to be decided, is, whether an opinion formed
and delivered, not upon the full case, but upon an essential part
417
of it, not that the prisoner is absolutely guilty of the whole crim^
diarged in the indictment, but that he is guilty in some of those
great points, which constitute it, do also disqualify a man in the
sense of the law and of the constitution from being an impartial
juror? This question was adjourned yesterday for argument,
and for further consideration.
It would seem to die court, that to say, that any man who had
formed an opinion on any fact conducive to the final decision of
the case, would therefore be considered as disqualiEed from
serving on the jury, would exclude intelligent and observing men,
whose minds were really in a situation to decide upon the whole
case according to the testimony, and would perhaps be applying
the letter of the rule requiring an impartial jury, with a strict-
ness which is not necessary for the preservation of the rule itself.
But if the opinion formed, be on a point so essendal as to go far
towards a decision of the whole case, and to have a real influence
on the verdict to be rendered, the distinction between a person
who has formed such an opinion, and one who has in his mind
decided the whole case, appears too slight to furnish the court
with solid ground for distinguishing between them. The ques-^
tion must always depend, on the strength and nature of the opi-
nion which has been formed*
In the case now under consideration, the court would perhaps
not consider it as a sufficient objection to a juror, that he did
believe, and had said, that the prisoner at a time considerably
anterior to the fact charged in the indictment, entertained trea-
sonable designs against the United States. He may have formed
this opinion and be undecided on the question, whether those
designs were abandoned or prosecuted up to the time when the
indictment charges the overt act to have been committed. On
this point, his mind may be open to the testimony, although it
would be desirable that no juror should have formed and deli*
vered such an opinion, yet the court is inclined to think, it would
not constitute sufficient cause of challenge. But if the juror have
made up and declared the opinion, that to the time when the fact
laid in the indictment is said to have been committed, the priso-
ner was prosecuting the treasonable design with which he is
charged, the court considers the opinion as furnishing just cause
of challenge, and cannot view the juror who has formed and
delivered it as impartial, in the legal and constitutional sense of
that term.
The cases put by way of illustration, appear to the court, to be
strongly applicable to that under consideration. Thej^ are those
of burglary, of homicide, and of passing counterfeit money, know->
ing it to be counterfeit; cases in which the intention and the foct
combine to constitute the crime.
Vol. I. 3G
418
If, in case of homicide, where the fmct of killing was admit-
ted or was doubtful, h juror should have made up and delivered
the opinion, that, though uninformed, relative to the fact of kil*
ling, he was confident as to the malice; he was confident that the
prisoner had deliberately formed the intention of murdering the
deceased, and was prosecuting that intention up to the time of.
his death ; or if on the charge of passing counterfeit bank notes,
knowing them to be counterfeit, the juror had declared, that
though uncertain as to the fact of passing the notes, he was con-
fident that the prisoner knew them to be counterfeit, few would
think such a person sufficiently impartial to try the cause accord-
ing to testimony. The court considers these cases as strikingly
analogous*
It has been insisted, that in Callender^s caae^ an opinion was
given different from that which is now delivered.
I acknowledge, that I had not recollected that case accurately.
I had thought, that JVIn Basset had stated himself to have read
the book charged as a libel, and to have formed the opinion that
the publication was a libeL I find by a reference to the case it-
self, that I was mistaken; that Mr. Basset had not read the book,
and had only said, that if it were such a book as it had been repre-
sented to him, he had no doubt of its being a libeL This was
going no fiirther than Mn Morns has gone, the challenge against
whom has been overruled. Mr. Morris had frequently declar-
ed, that if the allegations against the prisoner were true, he was
guilty*, and Mr. Morris was determined to be an impartial juror.
With respect to the general question, put in CoUtndtr^a case^
the court considers it as the same with the general question put
in this case. It iwas, ** Have you made up and delivered the
opinion, that the prisoner is guilty or innocent of the charge laid
in the indictment?'' That is in substance, ^* Have you made up
and delivered the opinion that the prisoner has been guilty of
publishing a false, wicked, and .malicious libel, which subjects
him to punishment, under the act of congress, on which he is
indicted?" The same question is now substantially put. Ejqila-
natory questions are now put when they are necessary ; and cer-
tainly explanatory questions might have been put in CaUender's
case, had they been necessary.
. Had the case of Mr. Basset even been such as I thought it,
had he read ^^ The Prospect Before Us," and thought it a libel
without deciding who was its author, he would have gone no
further than to have formed an opinion, that certain allegations
were libellous, which b not dissimilar to the opinion, that cer-
tain acts amount to treason. If, for example, a juror had said,
that levying an army for the purpose of subverting the govern-
ment of the United States by force, and arraying that army in a
warlike manner, amounted to treason, no person could suppose
419
him on that account, unfit to serve on the jury. The opinion
would be one in which all must concur; and so was the opinion
that " The Prospect Before Us'* was a libel. Without determin-
mg whether the case put by Hawkins^ b. 2. ch. 43. sec. 28. be
law or not, it is sufficient to observe, that this case is totally dif-
ferent. The opinion which is there declared to constitute no
cause of challenge, is one formed by the juror on his own know-
ledge; in this case, the opinion is formed on report and newspa-
per publications.
The argument drawn from the situation of England during
the rebellions of 1715 and 1745, with respect to certain promi-
nent characters, whose situation made it a matter of universal
notoriety, that they were the objects of the law, is founded en-
tirely on the absolute necessity of the case; and the total and
obvious impossibility of obtaining a jury, whose minds were not
already made up. Where this necessity exists, the rule perhaps
fnust bend to it, but the rule will bend no further than is requir-
ed by actual necessity. The court cannot believe, that at present,
the necessity does exist* The cases bear no resemblance to each
other. There has not been such open notorious war, as to force
conviction on every bosom respecting the fact and the intention.
It is believed, that a jury may be obtained, composed of men,
who, whatever their general impressions may be, have not de-
liberately formed and delivered an opinion, respecting the guilt
or innocence of the accused.
In reflecting on this subject, which I have done very seriously
since the adjournment of yesterday, my mind has been forcibly
impressed by contemplating the question precisely in its reverse.
If, instead of a pane] composed of gentlemen who had almost
unanimously formed and publicly delivered an opinion, that the
prisoner was guilty, the marshal had returned one composed of
persof^, who had openly and publicly maintained his innocence;
who had insisted, that notwithstanding all the testimony in pos-
session of the public, they had no doubt that his designs were-
perfectly innocent; who had been engaged in repeated, open,
and animated altercation to prove him innocent, and that his ob-
jects were entirely opposite to those with which he was charged;
would such men be proper and impartial jurors f I cannot be-
lieve they would be thought so. I am confident I should not
think them so. I cannot declare a juror to be impartial, who has
advanced opinions against the prisoner, which would be cause of
challenge^ if advanced in his favour.
The opinion of the court is, that to have made up and deli-
vered the opinion, that the prisoner entertained the treasonable
designs with which he is charged, and that he retained those
designs, and was prosecuting them when the act charged in the
420
indictment is alleged to have been committed, is good cause of
challenge*
The suspended jurymen were then called. John H, Upshaw
was asked by the court, whether he conceived that the prisoner
had pursaied his treasonable designs to the time charged in the
indictment? Mr. Upshaw answered in the affirmative. And the
Chiet Justice observed, that he was not qualified to serve as
a juryn^m.
J. JBbwe, Miles Selden, 'Lewis Truehart, William Yancey^
Thomas Prosser, Nathaniel Selden, John W. Ellis, Armistead
T. Mason, and Dabney Minor were successively set aside, af-
ter having been further interrogated ; because having formed an
opinion as to the criminal intentions of the accused, they came
within the principle of exclusion just established by the court*
Mr. Hay then moved the court to award a new venire, to
consist of a sufficient number, to secure a certainty of supplying
the deficient jurymen* He thought, and referred to the authori-
ty of HaivkinSj in support of his opinion, that the " taks^^ might
exceed the number of the original paneL He supposed, that one
hundred and fifty would not be too few. Were it not for the ex-
pense, he would move for five hundred: that every man in the
community who had read and believed general Eaton's deposi-
tion, must believe, that the accused had treasonable intentions^
that as so much difficulty had already occurred in obtaining only
four jurors, he was very solicitous that a sufficient number should
be directed to be summoned at once.
Mr» Burr said, that he was sorry that such inferences had
been made ; that he thought a different conclusion ought to be
drawn from the experience already had; that a very great ma-
jority of the forty-eight first summoned, had publicly and fre-
quently declared the most injurious opinions respecting his in-
tentions; but when it should be manifest, that the officer of this
court was really disposed to seek proper jurymen, the number
could easily be completed.
Mr* Wirt hoped, that when insinuations were thrown out
against the marshal of this court, a man of as respectabfe a cha-
racter as any in the state, he might be called into court to jus-
tify himself*
Mr* WicKHAM objected to his panel; that it contained too
many members of assembly, and candidates for public favour
and office; that the marshal should have selected the jury from
those who were less in the habit of expressing their political opi-
nions than those gentlemen ; for that, however respectable they
might be, the frequent and public discussion of their opinions,
had a tendency to create an involuntary bias on their minds*
421
Mr* BoTTS said, that it ought not to be understood, that the
motives of the marshal were to be questioned; that he was a
respectable man, who certainly meant to act faithfully and con-
scientiously.
Mn Wirt appealed to the panel itself, as the best proof of
the intelligence- and integrity of tbose who had been selected;
that they were as respectable men as any in the whole commu-
nity; that it had been announced from the bench itself, that
some abstruse and complicated doctrines of treason, were to be
investigated during the trial; that it was therefore natural, that
the marshal should have looked out for the most enlightened
men, and that the selection should have comprehended some of
those very persons, whom the people had before chosen, for the
management of their public concerns ; but as only four jurors
were obtained out of the forty^eight, such a^^/a/p^" should be
awarded, as would be certainly sufficient to produce the remain-
ing eight jurors.
The Chief Justice stated, that the difficulty of getting ju-
rors, was now in some measure removed, as the opinion of the
court was known ; that the marshal would not summon a man
whose opinions he might have previously understood, although
he ought not to interrogate him on the subject; that he would
have a good reason for not placing on the panely any man, who
should inform him, that his opinions were strongly in conflict
with the test established by the court.
After some desultory conversation, the court awarded a panel
of forty-eight, and adjourned till Thursday next.
Thursday, August 13th, 1807.
As soon as the court met, Mr. Burr observed, that just be-
fore coming into court, he had received a copy of the panel last
awarded ; that it was defective, in not having the places of resi-
dence annexed to the names of the jurors; that he should, per-
haps, require till the day after to-morrow, to examine it, which
was a less time than the law allowed him for that purpose.
Some conversation ensued, respecting the subpcena '^ duces^ tC"
cunij^ when Mr. Hay stated, that he had found general Eaton's
letter, among certain papers, transmitted by Mr. Rodney, and
had filed it with the clerk; that he had not found among them,
general Wilkinson's letter, pf the 21st October, but would seek
r it.
Three of the jury summoned on the second venire, were dis-
charged by the court, viz : General Pegrom, because he was then
necessarily engaged in military business ; in giving the necessary
orders, to the officers of his brigade, to get in readiness, its due
i
422
Sroportion of this state's quota of troops, required by the prest-
ent's proclamation^ pursuant to the act of congress. Mr. Lewis,
because he owned no freehold in the state of Virginia ; and Mr.
I Moncure, on account of his indisposition.
It was understood, that the marshal should summon three
\ substitutes; and that the prisoner should accept them. So that
the venire was still to consist of forty-eight.
The court then a^ourned till Saturday, eleven o'clock.
Satukd AY, August 15th, 1S07.
The court met according to adjournment.
Present, Chief Justice Marshall, Judge Griffin, absent.
The jurymen summoned by the marshal, were severally cal-
led, and answered to their names in the following order, except
seven absentees. .
Jacob Michaux, of Powhattan; William Randolph, of Surry;
John Edmunds, of Sussex; George Minge, of Charles City;
William L. Morton, of Charlotte; Christopher Anthony, of
Goochland; John Darricot, of Hanover; Washington Truehart, '
of Louisa; Martin Smith, of Prince Edward; Benjamin Tate,
of, city of Richmond; Christopher Tomkins, of do.; Benjamin
Branch, of Dinwiddie; Thomas Branch, of Chesterfield; James
Sheppard, of city of Richmond ; Gabriel Ralston, of do. ; Mi-
^ cajah Davis, of Bedford; Reuben Blakey, of Henrico; Miles
Selden, of Sussex; Walter Blunt, of do.; Richard N. Thweatt,
of Petersburg; John Fitzgerald, of Nottoway; Robert M'Kim,
of city of Richmond; Benjamin Graves, of Chesterfield; Wil-
liam M'Kim, of city of Richmond ; Robert Hyde, of do. ; Tho-
mas Miller, of Powhattan; Thomas Branch, of Chesterfield;
Robert Goode, of do. ; Henry Randolph, of do. ; Miles Bott, of
do. ; Henry Bridgewater, of do. ; Edward Hallam, of city of
Richmond; Anderson Barret, of do.; Henry E. Coleman, of
Halifax; Edmund Bailey, of city of Richmond; Holder Hudg-
ins, of Matthews; William H. Hudgins, of do. ; John Price, of
Henrico; Isham Godwin, of do.; William S. Smith, of do.;
George Blakey, of do.; Gray Carrol, of Isle of Wight; Isaac
Medley, of Halifax; Richard Curd, of Henrico; Edward Mun-
ford, of Powhattan; Samuel Allen, of Buckingham; John M.
Sheppard, of Hanover; John Curd, of Goochland. Of whom,
there were seven absent. .
On motion of Mr. Randolph, Mr. Benjamin Tate was ex-
cused from serving on the jury, on account of his bad state of
health. Henry Randolph wished to be discharged, because he
was engaged in collecting the public revenue. The court would
not, however, admit the validity of the excuse..
/
423
Mr. Bi7E& then addressed the court, and observed, that the
panel was now reduced to forty; and as it would be exceedingly
disagreeable for him to exercise the privilege of making peremp-
tory challenges, to which he was entided, he would lay a propo-
sition before the oppisite counsel, which would prevent this ne-
cessit}% and would save one or two hours, that might be other-
wise unpleasantly spent. He would select eight out of the whole
venire, and they might be immediately sworn, and impaneled on
the jury.
The Chief Justice said, that if no objection were made, it
might be done, and that they might be placed at the head of the
panel.
Mr. Hay observed, that there could lie no utility in objecting
to it, as the prisoner could challenge peremptorily, and that he
had no objection to this arrang^ement, as it would be easy for
him to examine the qualifications of the eight who were select-
ed, when they were once known.
William S. Smith, then requested to be excused, on account
of his indisposition.
Mr. Burr observed, that Mr. Smith was one of those whom
he had selected; but he would be sorry to impose such a bur-
den upon any invalid. Mr. Smith was discharged.
When Christopher Anthony was called; he observed to the
court, that he had uttered some expressions since he came to
town, which he had been told, would certainly disqualify him
fix)m serving, according to the rules said to have been laid down
by the couru On being interrogated, as to what words he had
spoken,
Mr. Burr ssud, perhaps the words were used through levity.
Do you think they would be sufficient to warp your judgment?
Answer. No.
Mr. Burr. — Then, sir, you are not disqualified.
Mr. Mac Rae. — State the tenor of those expressions.
Anthony. When I first arrived here, I met with an intimate
friend, to whom I observed, that I had come to town with a
hope of being placed on this jury, and if I were, I would hang
colonel Burr at once without further inquiry.
Mr. Mac Rae.-— Did you say so, knowing that such expres-
sions would disqualify you?
Answer. I did not; for I never expected to be put on this
panel.
Question. Were you serious?
Answer. Far from it. I spoke in the utmost spirit of levity.
Question. Have you been in the habit of reading the new8»
papers ? Answer. I have.
424.
Mr. Ma<: Rap. proceeded tx> make further inquiry of him.
He asked him, whedier he had read the depositions of generals
Wilkinson and Eaton? He answered in the aiErmative. He then
asked him, whether those depositions had made no impression
upon his mind? Hereupon, both colonel Burr and Mr. Mar-
tin, objected to this inquiry as improper.
Mr. Mac Rae contended, that this examination was in vin-
dication of the rights of the United, States, and perfectly proper
and correct, and was no more than had been done repeatedly
by the prisoner.
Mr. Martin. — You have no right to disqualify any juryman
for us.
Chief Justice. — Certainly the counsel for the United States
may challenge for cause.
Mr. Mac Rae. — ^We are entitled to the same rights, which
the opposite counsel have exercised, as to the former venire.
When the jurymen were successively called before the court,
did not the opposite counsel in every case, challenge for cause?
Did not the prisoner make spme general observations, that were
intended for the ears of the jury; in which he spoke of his right
of challenge, and requested every juryman who was conscious
of prejudice, to object to himself? Did they not, in several cases,
without exercising the right of challenge, previously inquire of
the jurymen, whether they had no declarations to make? Did
not the counsel for the prosecution, suggest some doubts about
the propriety of this course? and did not the prisoner reply, that
no juryman ought to lock up in his own bosom, the prejudices
which he had conceived, and that he ought to declare himself?
Did ^ot Mr. Botts frequently interrogate the jur)mien, whether
they had nothing to state? Mr. J. Baker's case will be particu-
larly recollected; for that gentleman positively replied, that he
had no observations to make, until he had been challenged; and
not until this step had been taken, did any declarations tall from
Mr. Baker. We wish to pursue the same course now, that was
adopted on that occasion. We wish to challenge no juryman
for cause, until he have previously made declarations of his
state of mind. The same justice is due to the United States that
was awarded to the prisoner; and they have the same right to
know whether a juryman be as perfectly impartial in relation to
the prosecution, as to the prisoner. As to the jurors themselves,
they would certainly be willing to give all the information in their
power.
,Mr. Hay was willing to take the persons selected; for he en-
tertained no doubt of the integrity of the gentlemen who were
summoned. He was willing to take them, provided they should
425
•
be asked by the bench, whether they were conscious of any cause,
which should disqualify them from serving. If they themselves
were satisfied, he should be also satisfied. No man on this panel
who had definitively made up his mii^d, would conscientiously
think to lay his hand on the book, and solemnly avow himself an
impartial and qualified juryman.
The Chief Justice understood then, that these selected eight,
were to pass without challenge, unless they challenged them-
selves. If the court were required to say, as seemed to be the
wish of the prosecution, that any impressions however slight,
were sufficient cause for challenge, he would ask, where they
could obtain a* jury? The United ^States had precisely the
same rights as the prisoner had, and were entitled to make the
same challenges for good cause. He then addressed those eight
jurymen who were placed at the head of the panel, thus:
^* Gentlemen, if you have made up, and expressed any opi-
nion, either for, or against the accused, you ought to express it."
Mr. Burr. — The law presumes every man to be innocent,
until he have been proved to be guilty. According to the rules of
law, it is therefore the duty of every citizen, who serves on this
jury, to hold himself completely unbiassed ; it is no disqualifica-
tion then, for a man to come forward, and declare, that he be-
lieves me to be innocent.
Chief Justice. — The law certainly presumes every man to
be innocent, till the contrary be proved; but if a juryman give
an opinion in favour of the prisoner, he must be rejected.
When Christopher Anthony was called to the book, he stated,
that he was in court the other day, when the first venire was in-
vestigated; that it would be extremely unpleasant to serve on
the jury; and, that his general opinions had been precisely
the same that had disqualified (as he understood), Several other
gentlemen. Mr. Anthony's objections were overruled.
John M. Sheppard. I too feel myself disqualified for pas-
sing impartially between the United States, and Aaron Burr.
From the documents that I have seen, particularly the deposi-
tions of generals Wilkinson and Eaton, I have believed, and do
still believe, that his intentions were hostile to the peace and
safety of the United States ; in short, that he had intended to
subvert the government of the United States. It would be in-
flicting a wound on my own bosom, to be compelled to serve
under my present impressions. Mr. Sheppard observed, that
considerations of a private nature, had also borne., upon his
mind: for he had a child at home, extremely sick.
Mr. Burr. — Notwithstanding Mr. Sheppard's impressions, I
could fely upon his integrity and impartiality. As to his private
Vol. I. 3 H
426
considerations, I do not M^ish wantonly tP wound bis feelings* %
must request him, therefore, to sit down for a moment, until
we shall ascertain, whether we can make a jur}' without him.
Mr. Hay.— <-Has the court understood the extent of IVtr.
Sheppard's declarations?
Chief Justice.— *If the prisoner's counsel waive the right of
challenge, there is an end of it.
James Sheppard was then called ; who made no further de-
clarations. ^
Reuben Blakey. I have made up no opinions either way, po-
sitively, on this subject.
Doctor John Fitzgerald. It is incumbent on me, to state tQ
the court, that I have formed and delivered an opinion unf$h>
vourable to colonel Burr. My opinion has been founded upon
the depositions of generals Eaton and Wilkinson, and other
newspaper publications ; and it is, that colonel Burr's intentions
were hostile and treasonable against the United States. On which
account, I am very unwilling to serve, lest I should possess that
bias upon my mind, which is unbecoming a juryman. Mr. Fitz«
gendd was requested to sit down for a few moments.
Miles Bott. From the affidavits of generals Wilkinson apd
Eaton, my opinion has been completely made up for several
months past.
Mr. Martin. — I suppose you have only taken up a preju-
dice on the supposition, that the facts stated were true.
Mr. Bott. I have gone as far as to declare,' that colonel Qurr
ought to be hanged.
Mr. Burr.— *Do you think that such declarations would now
influence your judgment? Would not the evidence alter your
opinion?
Answer. Human nature is very frail; I know that the evi-
dence ought, but it might or might not influence me. I have
expressed myself in this manner, perhaps, within a fortnight;
and I do not consider myself a proper juryman.
Mr. Burr. — It will be seen, either that I am under the ne-
cessity of taking men in some degree, prejudiced against me, or
of having another venire. I am unwilling to submit to the fur-
ther delay of other ** taleSj^ and I must therefore encounter the
consequences. I will take Mr. Bott, under the belief that he
will do me justice.
Four jurymen then having been selected, three were sworn.
Mr. C. Anthony affirmed.
When Henry E. Coleman was called, he stated, that be had
conceived and expressed an opinion, that the designs of colonel
Burr were always enveloped in mystery, and inimical to the
United States; and when informed by the public prints, that he
was descending the river with an armed force, he. had felt as
every friend of his country ought to feeL
Mr, Burr.— -If, sir, you have completely prejud^d my case— -
Mr. Coleman. I have not. I have not seen the evidence.
Mr. Burr. — That is enough, sir^ Yoii are ekcted.
Mr. Hat then suggested to the court, the propriety of not
swearing all the jury this day; as it would subject them to the
inconvenience of an unnecessary confinement in their own room
to-morrow, (Sunday). Would it not be better for Mr. Marshall
(the derk), to swear three only out of the remaining four? The
court might then impanel the whole on Monday, and proceed
immediately to business.
Mr. fiuRR had no objections to this measure; but hoped that
the court would enjoin them not to hold any conversations on
the subject of the trial.
John Curd, upon being caUed, stated, diat he had no preju-
dices, for or against the prisoner; but that he was bound in can-
dour, to inform the court, that he was afRicted by a disorder, (a
palpitation of the heart), which was irregular in its attacks, but
was sometimes very sudden and violent, and rendered him en-
tirely incapable of business; and if he were sworn on the jury, it
might interrupt and dolay the progress of the cause. He was
excused*
Isham Godwin had formed and declared a uniform opinion
of colonel Burr's guilt. If he were impaneled, he should be un-
der a strong impression, that colonel Burr was guilty of treason.
Suspended".
Samuel Allen, had, for several months, made up an opinion
unfavoi:^*able to the prisoner. Suspended*
Benjamin Graves had not formed an opinion; and gave a long
history of his domestic and family engagements, to excuse him-
self from serving. He was asked, whether he could not make
some arrangements of this business, between this time and Mon-
day, calculated to remove all the inconvenience of his serving?
Mr. Graves could not positively say.
Mr. Burr then observed, that the two jurors who had been
selected, might be sworn; the other two might be selected on
Monday. And Messrs. Coleman and Graves were accordingly
sworn.
Mr. Burr hoped, that the marshal would direct all the neces-
sary preparations to be made for the accommodation of the jury,
who would be confined to their own chamber after Monday.
428
Colonel Thomas Branch was then excused from serving, be-
cause he was engaged in military business.
The Chief Justice requested the jury and the remaining
membei-8 of the venire, to attend on Monday, at twelve o'clock ;
and enjoined them to hold, in the mean time, no communicadon
on this subject with any person.
Mr. Hay stated, that he was satisfied, from some expressions
which he had heard from Mr. Munford, of Powhatan, at the
moment of his summons, that the prisoner would himself object
to him.
Mr. Burr was satisfied with the attorney's word; and Mr.
Munford was accordingly discharged.
Mr. Burr was sorry to be importunate; but he was under
the necessity of mentioning oncfc more the letter of the 21st
October. He wished to know, whether the attorney had yet
found it amongst his papers, or whether he could point to any
other means of obtaining it.
JMr. Hat had examined two bundles of papers transmitted to
him by Mr. Rodney; but he had not found it. There were other
papers which he had yet to examine. He had, however, a copy
of the original letter.
Mr. Burr.— Where is this copy from? From Washington,
or from general Wilkmson?
Mr. Hay. — It is from general Wilkinson. He has, however,
written it from the original.
Mr. Burr. — I shall not accept of his copy: but I will state
this proposition to the attorney. If he do not find this lettter
by Monday, will he consent that I obtain a subpoena duces tecum f
Mr. Hay— I have no objection. .
Chief Justice.— -I suppose an order may be made to issue
a subpoena duces tecum addressed to the attorney general of the
United States, in case the letter be not found.
Mr. Hay.— I have no objection.
A desultory conversation ensued between Messrs. Hay and
BoTTs, on the arraignment of H. Blannerhassett. Mr. Hay was
averse to interrupting the jury after it had once been impaneled
for the trial of Mr. Burr: he was therefore anxious to have
Blannerhassett immediately arraigned, and if possible, to have
some day fixed for his trial.
Mr. BoTTs did not think it possible for the court to fix on a
particular time for his trial, or for the attorney to furnish any
means for calculating it. Mr. Blannerhassett was not prepared
429
for his trial: but he was then preparing a brief, for the informa-
tion of his counsel, which might enable them to give a definitive
answer on this subject.
»
Mr. Hay was wiUing to grant them ^any accommodation they
might require. At all events, the court would only have occa-
sion to meet one hour sooner on some day, to arrange it.
Mr. BoTTS promised, that he would notify the attorney some
day in the next week, for this purpose.
The court then adjourned till Monday, twelve o'clock.
MoNBAT, August 17th, 1807.
The court met according to adjournment.
Charles Lee, esq. appeared as counsel for the prisoner.
Doctor Bennett, of Mason county, a witness on behalf of the
United States, was called and recognised.
Mr. Hat stated some little difficulty which had occurred be-
tween Mr. Botts and himself. He had furnished the prisoner
with a list of the names of such witnesses, with their places of
residence, as had come to his knowledge. He had likewise pro-
posed, and Mr. Botts had consented, that all such witnesses
should be examined, whose names should be furnished to the
prisoner, before the commencement of the trial. He had fur-
nished the names of three on Saturday, viz. Messrs. Neil,
Goodwin, and Jones; which Mr. Botts did not think ought to be
accepted, because they were not furnished previous to the trial.
For his own part, he did not think that the trial could be said to
have commenced, before the jury were sworn and impaneled;
the prisoner might at any time before the jury were sworn,
move for, and obt^dn a continuance of the cause; if he could sa-
tisfy the court that he was entitled to it.
Mr. Botts said, that he had no doubt Mr. Hay thought that
he had stated facts to the court, relative to their supposed agree-
ment; that however he was mistaken, and he mentioned some
circumstances to convince him that he .was so; but that as there
had been a mistake, he would, as a matter of voluntary favour
and grace, agree to the introduction of those three witnesses.
Mr. Hay solemnly expressed his belief in the accuracy of his
statemeilt: but as he was at liberty to introduce these three wit-
nesses,-he would let the subject rest where it was.
The names of the selected jurors and of the venire, were then
called over. After which, John M. Sheppard, and Richard Curd
were selected to complete the panel, and sworn.
43d
The fbIlo)ving is, therefore^ a complete list of the petit jtir^*
Edward Carrington, Reuben Blakey,
David Lambert, Benjamin Graves,
Richard E. Parker, Miles Bott,
Hugh Mercer, Henry E« Coleman,
Christopher Anthony, John M. Sheppard,
James Sheppard, Richard Curd*
Proclamation then having been made in due form, the priso-
ner standing up, the clerk addressed the jury in the usual form,
and read the indictment in the words following:
VIRGINIA DISTRICT:
In the circuit court of the United States of America^ in and for
the fifth circuity and Virginia district.
The grand inquest of the United States of America, for die
Virginia district, upon their oath, do present, that Aaron Bytrr,
late of the city of New- York, and state of New- York, attorney
at law, being an inhabitant oJF, 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 oy the insti-
gation 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 die 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 compasstngs, imaginations and intentions of
him the said Aaron Burr, he the said Aaron Burr afterwacrdft, tot
wit, on the said tenth day of December, in the year one thousand
eight hundred and six aforesaid, at the said island called Blan-
nerhassett'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 trai-
431
tproudjrtiseinbled aodgadiered together, did fiikely and traito-
rously 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 th$^ day and in the year aforesaid, at the
.island aforesaid, commonly caJled Blannerhassett's island, in the
county aforesaid of Wood, within the Virginia district and the
jurisdiction of thi^ court, in pursuance of such their traitorous
mtentions and purposes aforesaid, he the said Aaron Burr with
the said persons so as albresaid, traitorously assembled and ar*
med and arrayed in manner aforesaid, most wickedly, maliciously
and traitorously did ordain, prepare and levy war against the
said United S^tes, 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 said United States iq 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 pre*
sent, 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 de»
vising and intending the peace and tranquillity of the said United
States to disturb; and to stir, move and excite insurrection, rebeU
lion and war against the said United States; on the elevendi dajr
of December, in the year of our Lord one thousand eight hun»
dred 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, insur«
rection and rebellion against the said United States; and io
order to fulfil and bring to effect the said traitorous corn-
passings, 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 plac^ 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 in«
Siest aforesaid, to a great number, to wit, to the number of
irty persons and upwards, armed and arrayed in a warlike man-
i
432
ner, that is to say, ^ith guns, swords and dirks, and otBer war-
like weapons, as well oflFensive as defensive, being then and there
unlawfully, maliciously and traitorously assembled and gathered
together, did fakely and traitorously assepable and join, them-
selves 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 pur-
suance 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 arranged in manner afore-
said, most wickedly, maliciously and traitorously did ordain,
prepare ^nd levy war against the said United States; and further
to fulfil and carry into effect the said traitorous compassings, ima-
ginations and intentions of him the said Aaron Burr, against the
said United States, and to carry on the war thus levied as afore-
said against the said United States, the said Aaron Burr, with
the multitude last mentioned, at the island aforesaid, in the sadd
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, ofiensive and defensive,
and did proceed fTt>m the said island down the river Ohio in the
county aforesaid, within the Virginia district and within the juris-
diction 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 terri-
tory of Orleans, belonging to the United States, contrary to the
duty of liheir 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.
Indorsed'-f'^ A true bill— John Randolph."
A Copy. Teste,
William Marshall, Clerk,
* .-
After the indictment was read, Mr. Hay requested that the
jury should be furnished with implements necessary, to enable
them 'to take notes on the evidence, and also on the arguments
if they should think proper; that as the cause was important,
and would require all their attention, it would be proper to af-
ford them this assistance. This was accordingly done.
433
Mr. Hat then opened the case in Uie following speech:
May it please the court, and you gendemen of the jury: sla
the preliminary stages of the prosecution in which we are now
^iig^cl, many observations were made extremely derogatory
to the character of the government under which we liv^, and
injurious to the feelings of die counsel concerned in the prosecu-
tion. Among other things, gendemen of the jury, it was said,
that we had indulged an intemperate zeal agamst the prisoner,
which transgressed all the limits of moderation and humanity;
that we were anxious to convict him even if innocent, and to
deprive him of those means of defence which justice and la^
direct* I do not know, gendemen of the jury, whether you
heard this charge, or if you did, whether it made any impres-
sion on your minds; but if it did, it is my duty to efface that
impression. But how, gendemen? By professions of modera^
lion, candour, liberality and humanity? professions easily made
and as easily forgotten! No. I will prove, gendemen, diat this
charge is unjust, by the course which I shall pursue in the very
management of this prosecution. We come now to a serious
and interesting crisis in this inquiry; on the result of which the
life of a man, and of a fellow citizen, who onse stood high in
the estimation of his country, must certainly depend. It is al-
leged, that his life is forfeited to the offended justice and violated
laws of his country. It is my duty to support that allegation:
but, gendemen of the jury, if I know myself if I can venture to
express what my own feelings dictate, I shall support that alle-
gation only, by focts which I believe to be true, and by arguments
which have already produced my own convicdon.
The prisoner at the bar, is charged with treason in levying war
against the United States* To this charge, he has pleaded not guil-
ty. It is your high and solemn duty to decide whether the charge
be true or not; and you have sworn to decide it according to the
evidence which shall be laid before you. If you attend to the obli-
gation and the words of your oath, any adnK>nitions from me,
with respect to the course which you ought to pursue, will be en-
tirely superfluous. If you decide according to the evidence, you
will divest your minds of every bias, of all political prepossessions
produced by extraneous statements and lumours which you may
have seen and heard. You will enter upon the case with impartial
attention, and a firm determination to do justice between the U.
States and the prisoner. But, gentlemen, if, after that patient inves-
tigation of the evidence,which the importance of the case requires,
and which I am sure you will bestow, you be not satisfied of the
guilt of the accused, it is your duty to say, that he is not guilty.
This, gentlemen of the jury, is the language of the law, of hu-
434
manity and of common sense. If you doubt on the subject, and
cannot bring your minds to a positive determination, that he is
guilty, you must declare him to be innocent. But gendemen of
the jury, there is one distinction made sometimes by jurymen,
to which I will for a single moment call your attention, which
seems to me to be a distinction without a difference, and
founded in wickedness and folly. It is this : that they were
satisfied as individuals that the prisoner was guilty; but yet,
that they were not satisfied as jurymen. This appears to me
to be a miserable fallacy. A juryman may entertain a belief,
founded on what he has heard out of doors, which would not
be warranted by the legal evidence before him in ceurt, on
which alone he ought to decide; but if the belief once exist in
his mind, from the evidence, that the prisoner has committed
the crime alleged, he is then guilty of treachery to his God,
to his country, and to himself, if he do not pronounce a ver-
dict dictated by that belief.
This indictment contains two counts : one for levying war
against the United States, at Blannerhassett's island, in the
county of Wood. The other contains precisely the same
charge, but goes on with this addition, that in order to levy it
more eflPectually, he descended the Ohio and Mississippi, with
an armed force, for the purpose of talcing New-Orleans. If
either charge be supported by evidence, it will be your duty to
find a verdict against him.
In Great-Britain, there are no less than ten different species
of treason; at least that was the number when Blackstone
wrote, and it is possible that the number may have been in-
creased since. ' But in <his country, where the principle is es-
tablished in the constitution, there are only two descriptions
of treason; and the number being fixed in the constitution it-
self, can never be increased by the legislature, however im-
portant and necessary it should be, in their opinion, that the
number should be augmented. By the 3d section of the 3d ar-
ticle 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 any thing, as the offence charged in the indict-
ment 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 confes-
sion in open court." The offence being thus constitutionally
defined, the only Question which presents itself to your view,
at this stage of the inquiry, is. What shall constitute an overt
act oflcvying war against the United States? TrcascJh consists
k
435
in levying war against the United States : the question then
is. What is, in the law, an overt act of ^^ levying war^' against
the United States? It is obvious, that the interval between the
first movements towards a conspiracy, and actual hostilities,
or a battle fought, is immense. There may be a conspiracy to
^ levy war;" but this is not treason* Individuals may meet to-
gether and traitorously determine to make dispositions to bring
lorces into the field, and levy war against their country; this is
a conspiracy, but not treason. The conspirators may go a step
further; they may not only project a plan for ^^ levying war,"
but they may inlist troops for the purpose of prosecuting their
traitorous designs; but this is not an overt act. It hath been
decided by the supreme court of the tJnited States, that the
persons concerned in this conspiracy, may yet take one step
. furth6r, and be on the safe side of the line, which separates con-
spiracy from treason. It has been adjudged that the individuals
engaged in the treason, may proceed to a place of rendezvous.
But gentlemen, common sense and principles founded on con-
siderations of national safety certainly require, that che crime
of treason should be completed, before the actual commission
of hostilities against the government* If force must be employ-
ed, before treason shall be said to be perpetrated, what is the
consequence? Why, that the traitor will so take his st«ps, as not
to strike a blow, till he be in such an attitude, as to be able to
bid defiance to the government, and laugh at your definitions
of treason. If he be a man of common understanding, he will
not hazard a blow, till his arrangements be so complete, that
the blow shall be fatal. It will then be a matter of very little
consequence to him, what may be the definition of the crime
which he has thus committed. What then is the point at which
a treasonable conspiracy shall be said to be matured into trea-
son? What shall be said to be an overt act of treason in this
country? The answer is this, gentlemen of the jury, that an as-
semblage of men convened for tlie purpose of effecting by force
a treasonable design, which force is intended to be employed
before their dispersion, is treasonable; and the persons engaged
in it are traitors. The answer which I have thus given, is not
literally that which is furnished by the decision of the supreme
court of the United States; but it is substantially the same, and
is given in conformity to what I understand to be the spirit of
that decision. This is precisely the question which was fully
discussed before the supreme court of the United States; and
as the opinion of that court, on this question, wsis pronounced
after great deliberation, no other judicial tribunal within the
United States ought to support a doctrine contrary to the prin-
ciples of that decision; and that opinion was, that a bare asse^«
436
blage of men, met to carry into forcible execution, before their
separation, a treasonable design, was ah overt act of levying
War against ttie United Stafes. I refer to the opinion delivered
by the chief justice, in the case of Bdllntan and Swartwout,
on the 21st of February, 1807; in which the following word*
occur. ** It is not the intention of the feourt to say, that no in-
dividual can be guilty of this crime, who has not appeared in
arms against his country. On the contrary, if war be actually
levied, that is, "(/*fl body of men be actually assembled for the
purpose of effecting byforce^ a treasonable purpose^ all those who
perform any partj however minute^ or however remote from the
scene of action^ and who are actually leagued in the general con*
spiracy^are to be considered as traitors: but there must be an
actual assembling of men^ to constitute a levying of war?"* If
therefore war be levied in this manner, if a number of men
collect together for the purpose of effecting a treasonable par-
pose, all are traitors. The construction which I have thus given,
comes within the words and meaning of the decision of the su-
preme court, pronounced by yourself. The same idea is express-
ed in perhaps ten or fifteen other parts of this decision : ^^ To
complete the crime of levying war against the United States,
there must be an actual assemblage of men, for the purpose of
executing a treasonable design. There is the utmost precision
of language in every part of this judicial sentence. Again :
" A design to overturn the government of the United States
at New-Orleans, by force, would have been unquestionably a
design, which, if carried into execution, would have been trea-
son; and the assemblage of a body ofmen^for the purpose of car-
rying it into execution^ would amount to levying war against the
United^iates; but no conspiracy, for this object, no inlisting of
men to effect it, would be an actual levying of war." If then the
accused and his associates, had met together for the purpose
of effecting by force, a dtssolution of the government of the
United States, at New-Orleans, though no force had been u^ed,
or batde fought, to accomplish it, they would have been guilty
of treason. Again, gentlemen, the same idea occurs in these
other passages : ^^ It cannot be necessary that the whole army
should be assembled, and that the various parts which are to
compose it, should be combined, but it is necessary that there
should be an actual assemblage." " The meeting of particular
bodies of men, and their marching from places of partial to
places of general rendezvous, would be such an assemblage."
'*It would certunly be an overt act ofle vying war." I think there-
fore, gentlemen, that I may with confidence say, that I am
warranted in the construction which I have given, by an ex-
press and solemn adjudication of the supreme judicial tribunal
of this country.
43Y
Perhftps, gentlemen of the juiy, in opening this cause, I may
Uke more time than you think necesftary, or than I myself
strictly speaking, may think necessary; but justice to the ac«
cused requires, that I should explicitly commmiicate the ground
and principles on which the ptK>secuti'on is meant t)o be main-
tained, that bis counsel mav prepare for his defence^ I must so*
licit youir attention, while f ^ate for your considerations those
reasons which have induced me, tn giving this exposition of the
words ^^ lei^ying war^ to omit two circumstandes, boA of
which may oe deemed by the counsel for the prisoner, to form
essential 'ptirts in the definition of treason. In the definition
which I have just examined, no notiee is taken of arms or mi-
litary weapons; nor have I stated, that any actual force or ho8'
iility has been employed, for the purpose of effecting the trea-
sonable designs; because I think neither of them essential, ac-
cording to the constitution and laws of this country.
On the first point I shall offer but a few remarks. But before
satisfying you of the legal propriety of the omission, permit me
to examine the question on principles of common sense; for it
must be admitted, that in legal discussion, we do not always
carry common sense along with us, from beginning to end. Lqt
His then consider this case, not as it would be presented to us by
lawyers and judges, but by the sound principles of common
sense and nationai policy. I say that it is not necessary that the
conspirators thus assemtiled, should be armed, to make them
traitors; but that their treason may be complete, though they
have not a single gun, nor even a sword, in the whole transac-
tion. Let us suppose a case: There has been a time, when ten
or fifteen thousand stand of arms were deposited under the
roof of this capitol: suppose that four or five thousand un-
iLrmed men, should meet together, within a few miles of this
city, with a deliberate, preconcerted design, to march to the
capitol, take possession of the public arms, disperse the legisla-
ture, and usurp all the powers of the government : suppose ten
thousand men unarmed should come within a few miles of this
city, where they knew they could get arms, for the purpose of
carrying into effect their treasonable designs : let us suppose,
%vhat is not unreasonable to suppose, that the infantry and ca-
valry of this city, should gird on their armour, and resolve, as
good honest citizens and brave soldiers, to disperse these con-
spirators, before they carried their treasonable purposes into
effect: they arm, they march, and these conspirators, apprised
of their approach, and conscious of their own guilt, disperse
and fly in every direction. I ask whether they would not be
traitors? They had assembled and marched for the pui*pose of
sub\'erting the goverfllnent of their countr\',but before they got
'438
possession of the arms which it was their intention to seize and
turn against their country, they were dispersed and effected their
' escape. Could any man say, that these men thus assembled,
were not, to all intents and purposes, traitors to their country?
Or, gentlemen, suppose that a number of men should assemble
on Blannerhassett's island, in the county of Wood : suppose,
what I do not believe was the fact, that they have no arms: they
descend the Ohio and Mississippi, with an intention to take
New-Orleans and plunder it, and divide the union. They cal-
culate on meeting their leader at the moutii of Cumberland
river, and when at Baton Rouge, to obtain arms on the river*
Their numbers increase as they go on^ and we are t<Jd, that
when they arrive there, they will get arms by the aid of the
Spanish minister. Would the simple circumstance of their be-
ing unarmed, lessen their guiltf Would it not be an absurdity
and a violation of common sense, to say, that the moment be-
fore they got possession of arms, they were not traitors; but
that the instant they put their hands on the muskets they be*
came traitors? It appears to my mind that the description of
treason given by the supreme court, was correct, when in one
passage it is silent as to the necessity of possessing arms to
constitute treason; and in another part, if I am not greatly
mistaken, it has expressly disclaimed it. If, gentlemen, this
point were not to be sq determined, what would be the result?
Why this, that the conspirators would take care never to touch
arms, till they were ready to strike a blow. Their arrangements
would be made in such a manner, that they would have milita-
ry weapons placed within their reach, but they would not lay
their hands on them till their organization were complete.
It is not essential therefore, on principles of common sense
or national policy, that they should have arms before they could
' be said to have committed an overt act of treason. And what
says the law? In the case, gentlemen of the jury, decided by
the supreme court, you find that there is not a single syllable
said, from beginning to end, with respect to the necessity of
arms being in the hands of the persons assembled in order to
perpetrate the crime of treason; and in the trial of Fries^p. 19r.
one of the judges of the supreme court, (Judge Chase) embra-
ces this opinion; he says, ^^ That the court are of opinion, that
military weapons, (as guns and swords mentioned in the indict-
ment) are not necessary to make such insurrection^ or risinjr^
amount to levying war; because numbers may supply the want
of military weapons, and other instruments may effect the in-
tended mischief. The legal giult of levying war may be incurred ^
without the use of military weapons^ or military array*^ It is re-
markable too, that this very doctrine is^mitted by the coun-
439
%e\ of the accused, (Mr. DaUas, p. 108). I do not state it as
authority, but it affords a strong presumpdve argument, that the
law was against him; for the counsel of a prisoner never makes
a concession, unless the law be extremely clear against him.
In Great Britain, there is a statute which passed many years
ago, in the 25th year of the reign of Edwani the Sd, in which
treason is described in the verj' identical words of our constitU"
thn, in the 3d section of the 3^ article. This statute makes
^^ levying war" against the king, to be treason. When, therefore,
the framers of our constitution, many of whom were lawyers of
distinguished talents, defined ^^ treason" in the very words by
which it had been defined many years ago in that country, and
which had been so often the subject of discussion and adjudica*
tion, it is to be fairly presumed, that they used those words in
the same sense which has been annexed to them by the judges
in Great Britain. An observation of a judge of the court of
the Unified States on this subject, who is now no more, but was
very respectable, (judge Iredell) amply confirms this remark. In
Fries^s Trials p. 167* that able judge says, ^^Now, I must con-
fess, as these able and learned framers of our constitution, bor-
rowed the act in terms, from the British statute alone, an auth6-
rity with which they were familiar, that they certaiiily at least
meant, that the Englbh authorities and definition of those terms
should be much respected." The only purpose for which I have
made the reference to the British laws, b, to shew that the deci-
sion of the supreme court on this subject, in the case' of Boiiman
and Swartwouty is not an innovation, not a new doctrine, but is
an exact counter-part of, and taken from, the decisions of the
English judges. To prove this, I refer to Foster's Crown Law^
p. 208. where speaking of being armed and arrayed in a warlike
manner, he says that ^^ the merits of the case have never turned
singly on any of those circumstances." ^^ In the cases of Demaree
and Purchase^ which are the last printed cases that have come
in judgment, on the point of constructive levying war, Ihere was
nothing given in evidence of the usual pageantry of war; no
miUtary weapons^ no banners or drums^ nor any regtdar consul^
tation^ previous to the risipg: and yet the want of those circum*
stances, weighed nothing with the court; though the prisoner's
counsel insisted much on that matter. The number of the insur^
gents supplied the want of military weapons, &c. The true
criterion therefore, in all these cases is, quo animo, did the parties
assemble? For if the assembly be on some private quarrel, or to
take revenge of particular persons," then it is not treason. But
if the cause of the assembly be an object in which the nation
itself is concerned, as taking possession of New-Orleans, the key
of the western world, then according to common sense, the opi-
nion of the English judges, or of the supreme court, it is treason.
440
The opinion of judge Foster, is quoted in East^s Crown Lcno^vaL
Up. 67. He concurs in the opinion of judge Foster, and thinks,
that arms and militar)' array are not essential to constitute treason*
I have thought it n^ duty to enter into this tedious exposition
of the law on this point, though it did not a^ear to me to be
absolutely necessary; because our own courts have decided this
question, in language too plain to be misunderstood by mortal
man. Another circumstance which perhaps rendered this dis-
cussion unnecessary, is thiis ; that the persons assembled on Blan-
nerhassett^s island, were actually armed for offensive, as well as
defensive purposes.
I have thus endeavoured to satisfy you gendemen, that I was
correct, in omitting in the definition of treason, that they were
armed or in military array. I submit to you gendemen, bow far
I have succeeded in justifying the propriety of this omission.
I stated to you a second omission, that the persons assembled
are not stated to have employed any actual force, or conmiitted
any hostilities. I contend that treason may be committed, though
no batde be fought, and though no act of violence or force
whatsoever be done.
I trust, that I have shewn, that the treason is completed the
very instant that they assemble together with a treasonable de-
sign. It will perhaps be said on the other side, (diough I can
hardly persuade myself that it will), that arms must be usedy
th9t force must be employ edy before war shall be said to be levied.
If they should contend, that the conspiratox-s must have arms,
and must employ force, before they can incur the guilt of trea-
son, observe the embarrassment in which their doctrine will in-
volve them. If ten thousand men were to assemble together and
march to the city of Washington, for the express purpose of
sending the president to Monticello, turning congress out of
doors, taking possession of the capitol, and usurping the powers
of the government, they would not be guilty of treason; because
' they had'not yet struck a blow. They advance and proceed ; they
meet no opposition; the members of the government disperse
through fear; and yet this is not treason! I should suppose, that
it would be acknowledged to be usurpation, and that the persons
who had thus assembled and proceeded to the capital of the
imion, with a determined intention of subverting the government,
were traitors. No violence has been used, no opposition has
been encountered, and they effected their object, because the ter-
ror and dismay inspired by their numbers, rendered resistance
impossible; yet they are not traitors! The doctrine that makes
force, or the actual exertion of arms, an essential ingredient in
the composition of treason, is, in my estimation, the most dange-
rous and most fatal that can be conceived. It is the very doc-
trine which traitors themselves, assembled together, for the 'pur-
441
pose of devising laws for their own security, would be most dis-
posed to recognise. For if they were not traitors till they struck
a blow, they would have nothing else to do, but to be on their
guard, and never to lift their arm till the blow should take full
effect. The doctrine for which I contend, is completely and
unequivocally confirmed by the decision of the supreme court of
the United States. There is not a single word in it, from which
it can be reasonably inferred, that, in order to commit treason,
actual hostility or force must be employed.
I do not know whether the counsel for the accused, will take
shelter under some expressions used by the judges in the case
ofFries^p* 197. and Lcandidly admit, that there are some ex*
pressions used by judge Chase, from which it may be inferred,
that force must be used, to complete the crime of treason. If
they should think proper to rely on those expressions, to prove
that force is necessary, I have only to remark^ that it is but the
opinion of a single judge, or of the judges of a subordinate court,
and cannot be opposed to the decision of the supreme court.
But this opinion cannot be considered as authority, for two rea-
sons. First, it will be recollected, that the opinion on that point,
isjcxtrajudicial; by which I mean to say, that it was not siicha
^int, as was necessary to be settled in the case then before the
court. He was speaking on a subject not immediately before
him, and which he decided only incidentally. The question be-
fore him, was not, whether force did enter into the composi-
tion of treason; for in the case of Fries^ there was no sort of
doubt, that every kind of force was used. It was a case of an ac-
tual opposition to the laws of the United States; and nothing is
considered as an authority, but a decision of the court, on the
very point which brings the question before it; the opinion was
therefore extrajudicial.
But 2dly, the opinion delivered by judge Chase, will be found
on an accurate inspection, not to be consistent with itself; for, in
some parts of it, he contends for the doctrine which I now main-
tain, and expresses himself in very different language from those
relied on. I do not say this by way of detracting from the in-
tellectual powers of the judge ; but such is the infirmity of hu-
man nature, that it is difficult for the ablest man to be always
consistent in argument. In his definition of treason, in the same
HtsCy p. 196. he says, that ^^ any insurrection or rising of any
body of people, within the United States, to attain or effect, by
force or violence, any object of a great public nature, or of pub*
lie and general (or national) concern, is a levying of war againsc
the United States, within the contemplation and construction of
the constitution." Thus excluding from his definition, the two
circumstances which I have omitted in mine; military weapons,
and the actual employment of force. In the next page, he ex*
Vol. I. 3 K
{
442
pressly states, that military weapons, &ۥ are not essential in the
consummation of treason ; and yet in the course of the same
charge, and m the same page, he seems to think, tha^ some force
must be employed, before the crime can be legally complete* In
the former page, he lays down the doctrine for which I contend ;
which is the very same that was delivered in the case ofBollmcai
and Swariwout; that is, that an assemblage of men for the pur*
pose before described, is a " levying of war." After stating this
in terms as precise as any in the English language, he says in the
next page (197), that ^ some actual force or violence must be
used, in pursuance of such design to levy war; but that it is al-
together immaterial whether the force used be sufficient to ef-
fectuate the object; any force connected with the intention, will
constitute the crime of levying war;" and however other parts
of this opinion may be reconciled to each other, that part where
he says, that the persons assembled must use some force^ is in-
compatible with another part, where he declares, that anij insur*
rection or rising of any body of people^ to attain or effect by
force, any object of a great ^^ public nature, &c. is a levying of
war," &c. In the one, some actual force is requisite ; in the
other, only an insurrection or rising of a body of the people^ for
the purpose of effecting their object by force, is deemed suffi-
cient. I stated to you before, gentlemen, that the opinion, that
they must have arms, is inconsistent with the principles of na-
tional policy, and opposed to the opinion of the supreme court.
It is only a mere dictum of judge Chase, in a case not neces-
sary to be decided. The truth is, that he did not express him-
self on this subject, with the precision which he would have dis-
played, had the question before him, been what it was before
the supreme court, and what it is here. In 2dDaIlas*s Reports^
p. 335, judge Patterson lays down the law on this subject, in
exact conformity to the opinion of the supreme court; and does
not think warlike weapons necessary to constitute an act of treason.
Let me also refer to the argument of Mr. Lewis, who appeared
as counsel in the defence of Fries, with as much zeal and pro-
fessional ability, as any man could have done. I do not know
him, but he is said to be a man of great ability and legal erudi-
tion. He would make no concession injurious to his client; and
yet, in his elaborate argument, he says not one word about the
employment of force, or the actual commission of hostilities. If
they assemble without the employment of force, but for the pur-
pose of effecting a treasonable design before their separation^
the^ are traitors. Such is the law as defined by the supreme
court, and admitted by a most able and zealous defender of a
person prosecuted for treason.
These opinions and decisions are in conformity to the most
respectable authorities and adjudications on criminal laW^, in
443
England. Treasons in that populous country are generally ac«
companird by force ; but that the actual Use of force, where the
traitorous design of an assemblage of men is clearly proved, ia
not necessary, is, in my judgment, indisputably certain. Foster ^
lap. 211. says, that ^^all insurrections of a public and genend
concern, which in judgment of law are intended against the king,
to dethrone or imprison him, to oblige him to alter his measures
of goverment, or to remove evil counsellors, &c. amount to
levying war within the statute, whether with the pomp and open
circumstances of war or noJ*^ The words here used, " levying
war," are the very words adopted in the constitution of the Uni"
ted States* In page 218. he is still more explicit; ^^ An as-
sembly armed and arrayed in a warlike manner, for any trea«
sonable purpose, is ^^ bellum levatuMy^ though not ^^ bellum percus*
sum:^^ war levied, though not struck. See, also, East's Crown
LaWy p. 67. before referred to. After stating the same words, he
adds, ^ inlisting and marching are sujicient overt acts^ without
coming to an actual engagement; in the same manner as cruising
under an enemy's commission, though no act of express hosti-
lity be proved, is an adtierence to the king's enemies.*' It shews,
that according to the exposition of the law in England, it is not
necessary that force should be employed before the act of treason
shall be said to be completed. But whether I be correct in my
exposition of the English law or not, is perfectly immaterial; be-
cause in our own country, the judges of the supreme court have
placed this point beyond the reach of controversy; and I hope
you are perfectly disposed to respect that opinion, which was in
fact pronounced by yourself.
If, according to the decision of the supreme court, neither
arms nor force be essential to constitute treason, I will ask, whe-
ther an assemblage of men on Blanrierhassett's island, convened
with a traitorous design, to be executed before their separation,
were not treason against the United States?
You will be told, gentlemen, that certainty in criminal law is
important, and, in that part which relates to treason, essential to
public liberty. Perhaps you will be reminded of an observation
of a celebrated writer, that uncertainty on this single point, is
sufficient to convert a republican into a despotic government.
This observation, though made by Montesquieu, is not admitted
to be applicable to the government of this country, dependent as
it is on the people; nor to our people, informed as they are of
their rights. But suppose it to be so, it does not apply to the sub-
ject now under your consideration. The answer is as conclusive as
it is obvious, that by the decision of the supreme court, the law is
rendered certain. The decision of that court has pointed out to
the people of the United States, the line beyond which they can-
not go, without subjecting themselves to the consequences of the
444
comtnissioii of treason* The court has said that conspiracy Id levy
war is not treason ; that inlisting of men is not treason ; that
marching from a place of partial, to a place of general rendezvous
is not treason: but that an assemblage of men c<mvened to eilec*
tuate forcibly a traitorous intent, is traitorous; and all concerned
in it are traitors. Every man may know the situation in which
he stands, and at what point to stop, if he wish to avoid the
imputation and the guilt of treason. Tou will probably be told^
also, of the danger of constructive treasons. It may be observed^
that in Great Britain, this doctrine has produced much oppres-
sion; and you may be asked, why we should be exempted from
the same evils in this country? Blacistonej in voL 4. of his Com--
mentaries^ p. 75. describes constructive treason thus : ^ to raise,
by forced and arbitrary constructions, offences into the crime
and punishment of treason, which never were suspected to be
such;** of this, some terrible examples exist in the eariier periods
of English history, when the people were ignorant, and the judges
entirely dependent on the king.
It is admitted, that the doctrine which shall let in treasons, not
defined by the constitution, by mere arbitrary constructions, in-
fluence or analogy, as in England formerly, ought not to be coun-
tenanced. But it will not be said, that there is in this country,
any danger to be apprehended on this subject ; where the go-
vernment depends so much on the will of the people, and the
Eeople know so well their rights, and how to support them. I
elieve no danger from this consideration, is ever to be expe-
rienced here. It may serve as a topic of declamation, but the
apprehension of real mischief from this source, is absolutely
visionary.
But this is not a question arising on constructive treason, but
on the constitution. The inquiry is, what is the meaning of the
words used in the constitution? It is the business, no doubt, of
the court to construe what is meant by the words *^ levying
war." These words do not present to the mind, a precise and
distinct idea, like the words ^^ murdering a man^^ or ^* stealing a
horse J*^ If the question, what is ** levying war?" were propound-
ed distinctly and separately to every individual composing this
assemblage, very tew, even of the most intelligent among
them, would have the temerity to answer, without great hesita-
tion and doubt. The answer would be variant; perhaps as many
opinions as men. Necessity therefore requires, that the courte
should ascertain the construction of these words. It is their du^
to do so. It is a task they have undertaken, when they became
judges, and they have performed that task, by giving a reason-
able construction of the meaning of the words used in the con-
stitution, as descriptive of treason. This will not be called a con-
structive treason. It would be absurd to apply that term to it;
445 ,
because it is absoliiCdy necessary to define the offence. On this
point, permit me to refer to the opinion of judge Peters, on
FrietPs Trials p. 206, 7* ^^ The doctrine of constructive- treason^
has produced much real mischief in another country ; and it has
been for an age, the subject of discussion, among lawyers, other
public speakers, and political writers. The greater part of the
objections to it, are totally irrelevant here. The subject of them
is unknown, and may it ever remain so in this country. I mean
Uie compassing the death of the king. It wjU be found, that
the British judges, since the days of political darkness and bi*
gotry have passed away, are to be found among the most aUe
and decided opposers of the abuses of this doctrine. They do
not follow decisions apd doctrines rooted in bad times^ because
tfaey find them in their law books. On the contrary, on a fair
investigation, it will be proved, that those contrary to justice,
reason and law, are rejected. It is not fair and sound reasoning,
to argue against the necessity and indispensable use of construc-
tion, from the abuses it has produced. What b there among the
best of human' (and I wish I could not add divine) systems,
which has not been perverted and abused? That there must be
some defined sense and interpretative exposition^ made of the
terms ^ levying war^ and when and in what circumstances it is
levied^ againat the United States^ cannot be denied. The able
counsel in this case, who has said the most on this subject, and
travelled the farthest into the gloomy, dark, and tyrannical pe-
riods of the British history, and jurisprudence, for melancholy
and disgusung proofs of atrocious abuses, and even crimes,
committed under colour of law, has unavoidably himself fur-
nished bIso proofs of the necessity we are under, of some con-
structive or interpretative expositions. He at first confined these
expositions to three cases. Now, if there be a necessity of one^
it^hews, that without suppkmentary interpretation^ the law would
be a mere dead letter : aware of the dangerous lengths to which
the abuses of construction have been carried, courts and juries
should be cautious in their decisions; but not so much alarmed
about abuses^ as to refrain from the proper and necessary use of
interpretation." It is true, gentlemen, that there was a time,
when the courts admitted any thing to be treason, which the
king of that country wished to be treason: acts in themselves
innocent, and which had no relation to treason, were construed
to be treason; as coining money, where the party accused, had
no idea of the commission of treason, but merely to perform the
act of coining. Surely, gentlemen will not say, that constructive
treason has been introduced into this country, because the judges
are obliged to interpret this part of the constitution. If, gentle-
men of the jury, the law thus established by^he supreme court,
shall be said to be a constructive treason, the inference is^ that
446
the judges ought to give no opinion on the meaning of the con-
stitution on this subject; which would be absurd; for it is their
solemn duty to construe the constitution and laws of the gene-
ral government. Another inconvenience^ that would result from
the inability of the judges to expound the constitution, is, that
the law would be perfectly uncertain, on the most interestine
of all legal subjects; which would be a most grievious mischief,
as juries \^ould be under the necessity of taking upon them-
selves, the correct exposition of the law, or it must be conced-
ed that the opinion of the supreme • court is erroneous. The
latter, I presume, is a position, which the counsel for the pri-
soner will hardly undertake to support.
If, however, they do undertake to shew, that the opinion of
the court is incorrect, and that the crime of treason cannot be
committed in this case; that, an assemblage of men with a
traitorous design is not sufficient, but that actual force must be
employed, and hostilities commenced before the treason is
complete; the constitution is a dead letter: No man can be pro-
nounced to be a traitor, till, by striking a blow, he be, or con-
ceives himself to be, beyond the reach of the law, or have over-
thrown your government. ' *
Perhaps it will be said that the decision of the supreme court is
not correctly understood or stated by me. I may be incorrect in my
exposition of it, but the language of the court is as definite and
perspicuous, as any that can be conceived. If we do not under-
stand it correctly, it is in vain to look into reported cases for
evidence of the law, or to inquire what the law is. In every
part of its judicial opinion, the ideas which it has express-
ed are perfectly consistent; and you will not find, from begin-
ning to end, a sentence, or even a word, which implies, that
any thing more is necessary for the completion of treason,. than
an assembly of men, convened for the purpose of executing a
traitorous design.
I should therefore take it for granted, that the law is as I
have stated it to be, and that the overt act of treason was com-
plete, if there were an assemblage of men on Blannerhassett's
island, in the county of Wood, whether they were armed or
not, and whether they used force or not. It is incumbent on
those who prosecute, to shew, 1st, That there was a treasonable
design; and 2d, That there was an assemblage of men, for the
purpose of eifectuating that design. It will be proved to you,
gentlemen of the jur} , that the design of the prisoner, was not
only to wage war against the Spanish provinces, but to take
possession of the city of New-Orleans, as preparatory to that
design; to detach the people of that country from this, and es-
tablish an independent government there, and to dismember the
447
tinion, separate the western firom the eastern states, making the
Allegany mountains the boundary line. You will perceive from
th|e evidence, that he intended to take possession of New-Or-
leans, to excite the people there to insurrection, and totake advan-
tage of the hostile sentiments, which prevailed to the west of
the Allegany againsfthe Spaniards. If either of these be prov-
ed; if it be established that his design was to separate the states;
or after seizing New-Orleans, to invade the Spanish provin-
ces^ he is guilty of treason. If in fact, it be proved, that he in-
tended to take New-Orleans at all, he is completely guilty of
treason; whether he designed to take possession of the whole
or of apart, he is equally guilty of treason. It would be absurd,
to suppose, that a man who had revolved in his mind, a scheme
so gigantic as this, would communicate it to many persons.
But he did disclose it to a few; and fortunately for our coun-
try, he was mistaken in his opinion of those persons in whom
he confided; and the evidences of his design have. been dis-
closed to our government. I am warranted in saying, gisntle-
men of the jury, that evidence the most positive and direct,
and circumstances numerous and conclusive, will prove to your
satisfaction, that the intentions of the accused were precisely
such as I have mentioned.
For the purpose of accomplishing these great designs; of es-
tablishing an empire in the west, of which New-Orleans was to
be the capital, and the accused was to be the chief, he made
two long visits to the western country. He went to Ohio, Ten-
nessee and Kentucky, in fact to all the western world, and tra-
velled in various directions, till he went finally to New-Orleans.
Wherever he went, he spoke disrespectfully of the government
of his country, with a view to facilitate the consummation of
his own designs. He represented it as destitute of energy to
support or defend our national rights againstforeign enemies,and
of , spirit to maintain our national character. He uniformly said,
that we had no character either at home or abroad. To those
in whom he confided, he asserted, that all the men of property
' and influence were dissatisfied with its arrangements, because
they were not in the proper situation to which they were en*
titled^ that with five hundred men he could effect a revolution
by which he could send the president to M onticello, intimi-
date congress, and take the government of the United States
into his own hands; that the people of the United States had
so little knowledge of their rights, and so little disposition to
maintain them, that they would meanly and tamely acquiesce in
this shameful usurpation. This is the very language of the pri-
soner, about the government and people; representing the one
as totally destitute of all energy and talents, and the other of
, 448
all patriotism and virtue* But he confined this language to th0
people of the east; he spoke a different language to the people
of the west. He told them, that they were in a state of colonial
dependence on those of the Atlantic states^ and annually paid
millons to the government of the United States, for which they"
derived no benefit whatever; for which they received no pro*
tection, no return* The people on the other side of the Allega-
ny were'toldi that a separation was necessary and would un-
questionably take place; that it was not likely to take effect by
die operation of natural, of moral and political causes, but as
determined by a particular chain of events; that the destiny of
the republic was fixed, and that this revolution would be ac*
complished in less than two years. I thank God that this pre-
diction has not been fulfilled^ and I hope our posterity to the
latest generation will thank God that it has not been fulfilled be-
fore their time! Such was the language of the accused; such
the sentiments which he avowed, and the doctrines which he
endeavoured to propagate* He said every thing to dissatisfy
them with their brethre i of the east, though all this time he
pretended that his objects were of a purely agricultural nature*
Nor did he confine himself to conversation with intelligent
men only; there were writings published that came from the
pen of the person who is indicted, as connected with him, cal-
culated to scatter disaffection among the people and pi'epare
them for his plans.
To accomplish these plans, in the summer and fall of 1806,
men were actually inlisted, boats were built on the waters of
the Ohio, provisions purchased to an enormous amount, and
arms and ammunition provided, as if the object was meant to be
carried into effect in a foreign nation; and as if some hostile
expedition were on foot* Some of these men, about 40 in number,
assembled with arms, on Blannerhassett's island, in order to de-
scend the river* Burr was not there then; he had been there
only a short time before, and intended to return, but was warn-
ed not to return; but his absence at the time when the people
assembled is totally immaterial. A man may ^^ ievy war**
against his country, when not present. A man may ^^ levy war*''
against a country, though three thousand miles distant* This
we may probably have an experience of in the course of a very
few months. But this principle has been sufficiendy established
by the decision of the supreme cou|t. " If war be actually le-
vied, all those who perform any part, however minute, or hoW'
ever remote from the scene of action^ and who are actually
leagued in the general conspiracy, are to be considered as
traitors."
These troops on the island, seeing the country alarmed, and
apprehending that they would be attacked by the militia of
449
Wood county, made a precipitate retreat by night, in compa-
ny with lilannerhassett, and went down the Ohio to the mouth
of Cumberland river, where the accused joined them and took
the command. By this time their numbers increased to about
one hundred. These men under the command of Burr and Blan«
nerhassett, descended the Mississippi to Bayou Pierre, a point
not far from Natchez. It was here, gentlemen of the jury, that
he first learned that all his schemes would be frustrated by the
exertions of the commander in chief; that his letter in cypher
had been communicated to the president; and it was here that
in the first moment of sdrprize, he expressed to another per-
son his astonbhment and indignation, at being Tas he said) thus
betrayed. Finding that the commander in chief, had baffled all
his schemes, by communicating his letter to the president, he
entered' into a kind of capitulation with Cowles Meade, was
bound to appear before a tribunal at Natchez, from whence, it
is said, he came oif without leave of the court, in violation of
his recognisance, and in his flight was taken by Perkins.
It will be proved to you, by express and direct evidence,
that a settlement of lands on the Washita, was merelv a cover
to conceal the real design^ which was to separate the union,
take possession of NewOrleans, and attack the Spanish pro-
vinces. But the utmost mystery and circumspection prevailed
on this subject. To the world at large, and to those with whom
he had not tampered, the object was held up to be, the set-
tlement of lands up the Red river. To some, intimations were
dropped, of an approaching rupture with Spain, against whose
provinces the expedition was intended, and the conquest of
Mexico was alluded to; his language varied according to the
character of the man with whom he conversed. To a few oply
his real design was developed; but to all he said that there was
a great scheme in view. All were told, that the design was just
and honorable; known and approved by the government; in
which the cooperation of the army was to be expected; in
which great wealth was to be acquired, and that it would be
developed as soon as the proper time for the disclosure arriv-
ed. The time, however, never did arrive. At Blannerhassett's
island, they were told, that it was not the time, but that when
they came to the mouth of Cumberland, they should be inform-
ed. When there, some of them, whose intentions were really
honest, who were not disposed to violate the laws of their coun-
try, and who were induced to join him by the expectation of
acquiring wealth, by laudable and honorable enterprise, were
anxious and endeavoured to know, what was the real design:
but circumstances, they were told, were such, that it could not
yet be communicated. Ignorant people were led away from
Vol. I. 3 h
450
their homes, und^r a belief that they would be speedily in-
formed of the whole project. The information was promised,
but never imparted. The consequence was, that when Mr. Burr
was apprehended, they were left to find the way back to their
own homes, by any means in their power.
Chimerical as this project was^ there was only one single
thing wanting to its accomplishment; the cooperation of the
commander in chief, and of the American army. If general
Wilkinson had acted as some have represented, if he had.act*
ed the part of a traitor instead of performing the character of
a patriot, I ask what would have been the situation of this
country at this moment? There would have been a civil war ra-
ging in the west; and the people of the United States, united
as they are, by interest, by sympathy and blood, would have
been involved in a sanguinary contest with one another; while
our eastern coasts would have been insulted and ravaged by an
insolent and rapacious foe, in consequence of their knowledge of
our divided situation* From this calamity in the west, we have
be'^.n protected by the vigilance and integrity of the command-
er in chief. I care not how my declaration may be considered;
but I will venture to assert, that from the adoption of the fede-
ral constitution, till this time, no man has rendered more es-
sential service to th^ people and government of the United
States, than general Wilkinson has done, by counteracting and
defeating this project. Yet, for this service, eminent and im-
portant as it is, he has been as much censured, abused, and ca-
lumniated, as if he had joined in it.
It is not for me to anticipate the defence which will be made
for the accused, but I presume I may speak of the defence
which he has made. He stated himself, while under examina-
tion, that his scheme was peaceful and agricultural. If this
ground shall be again taken, it will be extremely easy to satis-
fy you, by a variety of circumstances, that this was not the
scheme contemplated by those engaged in that expedition. I
intend hereafter, if necessary, to enter into an enumeration of
those circumstances, but at present 1 feel myself too much ex-
hausted to dejtail them. ^
I have observed, that you would enter upon this inquiry with
candour and patience, and I must hope too with firmness. You
will contemplate and decide this question, on the same princi-
ples, under the same laws, and in the same manner, as if the
question were betwec^n the United States and the most ignorant
and deluded of those concerned in the scheme. It is true, that
the prisoner has been vice-president of the United States; he
has been the second in office in the government of this country,
and perhaps the second in the confidence and aifection of the
451
people; and that he possesses talents and energies, which at the
approaching crisis, might have been employed most honorably
for himself, and most usefully for his country : but these cir-
cumstances rather aggravate than extetiuate his guilt, if he be
guilty. In other countries, a discrimination majr be made be-
tween different classes of the community; it is not often that
the laws of society operate upon men of this stamp in those
countries. Lord George Gordon, the miserable fanatic, who
marched at the head of the rioters in London in the year 1781,
was discharged, while eighteen or nineteen of his poor delud-
ed followers paid the forfeit of their offences, and were pun-
ished for his crimes. I call upon you, gendemen of the jury,
to disregard all such distinctions in this land of liberty, equali-
ty and justice; and to view this case, in the same light in which
you would regard it, if any other man in thQ community were
brought before you. I call on you to do justice and to decide
the cause according to the evidence which will be produced
before you.
After Mr. Hay concluded, some desultory observations
were made by the counsel on both sides, with respect to the ac-
commodation of the jury, and the times of meeting and adjourn-
ing the court, during the trial. Some arrangements were pro-
posed for the jury; that they were to occupy convenient rooms
in the.capitol at night, and in the recess of the coprt; that for
the sake of exercise, they might walk out in a body or se-
parately, if accompanied by the marshal or one of his deputies;
that they might send.or receive letters, if shewn to the marshal:
but that all letters should be laid before the court, which should v
appear to relate to the trial, and be designedly Bent to influence
their verdict. These arrangements were not adopted at this **
time, but their consideration postponed, all parties being de-
sirous to accommodate the jury as much as 'possible, consist-
ently with the necessity of keeping them together, secure from
intrusion.
On the question, how long the court ought to be occupied
every day during the trial, colonel Burr expressed a wish, that
the court, should for the sake of expediting business, meet at as
early and adjourn at as late an hour as possible. He referred
to trials in England, where the courts sat twelve and sixteen
hours every day; and proposed that the court should sit tenor
twelve hours each day. This was opposed as too long, fa-
tiguing and oppressive in such warm weather.
I
The Chief Justice said, that the court had no wish on the
subject, but was willing to consult the convenience of the gen-
tlemen of the bar, and the accommodation of the jury.
452
It was then proposed^ that the court should meet at nine
oVlock m the morning, and sit till four in the afternoon; this
was finally determined.
Mr. Hay proceeded then to the examination of the witnesses
summoned on the part of the United States; general Wil-
liam Eaton was sworn, when
«^ Colonel Burr rose and objected to this order of examining
the witi^esses. He said Mn Hay had not stated the nature of Mr.
Eaton's testimony; but he presumed that it related to certain con*
versations said to have happened at Washington; adding^ that
,the propriety of admitting any other testimony, depended on
the previous proof of an overt act.
Mr. Hay. — Our object is to prove by him, what is contain*
ed in his deposition, which has been published.
Mr. BoTTs, Mr. Wickham and Mr. Martin, then called
on them to prove (what they said the court had already deter-
mined to be the proper course of proceeding) an overt act.
They presumed that, if the decision of this court were to be
respected, gentlemen should call on the witnesses to prove facts
before declarations. But if gentlemen did not admit that this
point had been already sufficiently determined by the court, it
would be their duty to go into a recapitulation of the ailments,
and quotation^ of the authorities heretofore referred to, unless
the court would say, that the question had been already deci-
ded. Their object was to save xhe time of the court; they
knew that there had been a great deal of war in the newspapers:
but they also knew from actual experience and positive know-
ledge, that there had been no war in fact in this country;
and knowing that there has been in fact no war, are we, (they
asked), to be entertained by this and that idle story; to waste
several weeks at great expence and trouble; detain from their
homes, the court, counsel and jury, and keep the prisoner in a
very unpleasant situation; and all for no useful purpose, in the
discussion of points entirely irrelevant to the question in issue?
Shall we be told in justification of this great waste of time, and
this immense trouble, that they mistook the law and the testi-
mony; that they expected to prove an overt act, but were dis-
appointed?
They further contended, that the material fact on which all the
merits of the controversy depended ought first to be proved in
every case; that it. w^ould be irregular, irrational and illegal to
admit corroborative testimony, before proof was adduced of the
principal fact, which it was intended to confirm. They admitted
that it was usual, in most criminal prosecutions, to call on the pro-
secutor to begin his proof in support of either point, fact or inten-
453
tion, as he might deem proper; but, they said, there were tw«
reasons for this practice. First, every prosecutor, learned in crimi- '
nal law^began with proving the fact on which principally the charge
was founded. Or, aiecondly, the fact was known to be susceptible
of clear proof, and therefore, there was an acquiescence on the part
of the accused with respect to the commission of that fact. As in
the case of a prosecution for murder: the fact of killing ought
certainly to be first proved; but it is generally so well known to
have been committed by the accused, that there is no question
made on that point; and the defence arises from the motives or
inducement to the perpetmtion of the act whether justifiable or
^3u:usable. In such a case, it would be ridiculous to inquire
into the causes or circumstances of the killing, till the death
were proved; but in all other cases of a similar nature^ where
the fundamental fact was denied, it must be proved before
any confirmatory proof should be admitted. And wherever a
- prosecutor, from inadvertence, want of experience, or any other
cause, began at the wrong end of the prosecution, and the accu-
sed himself did not see cause to acquiesce, he had a right to
apply to the court, to require proof of the principal fact^ They
argued with great ingenuity and at considersible length in support
of this principle; that the court ought not to admit corroborative
testimony, in anticipation of the principal fact, to corroborate
which, it is sought to be introduced. They referred to the former
decision of the court, relative to this same point, on the motion
to hold colonel Burr to bail in a greater sum of money, than had
been at first required, and insisted that the order of evidence wais
part of the law of evidence; that the court was to. judge of the
competency of testimony, and had a right to stop any evidence
which it deemed immaterial; that it was of no avail to prove
intentions or designs before an overt act^ an open deed of rvar^
had been established; that, as in a writ of ejectment, it would be
ridiculous to bepn with proving the* boundaries before the title
was proved, so, it was improper to begin with the declarations
of colonel Burr, or any conversations, until the overt act were
shewn; that these declarations could only be admitted as confir-
matory evidence; that it would be peculiarly hard on any indi-
vidual, to ransack and expose all the transactions of his whole
life in a court of justice; that nothing was more repugnant to
justice, than to discuss, misrepresent, and torture « every conver-
sation, however innocent, which he had held, and every declara-
tion, however loose and inadvertent, which he had made at any
time, and on any occasion, before it was known, whether any
actua! crime could be proved against him; that if the prose-
cutor would thus proceed to develop the intention only, the
court had a right to stop him, and require the production of evi-
dence, of the act itself. They made many other observations to
454
t
•• «
the same purport. They cited Foster, p. 246* and Judge Iredell's
opmion on Fr'tes^s Trials ]the Caite of Smith and Ogden^ and
Hardifs Case. Their argumenu on this doctrine are consider-
ably condensed ; because it was afterwards, with other points,
very i'uUy and elaborately discussed on the motion made by Mr.
Wkkham, to arrest the evidence*
Mr. Wirt addressed the court on this subject, as follows:
After expressing his regret at the unnecessary waste of so
mnch time, by so many motions and obstacles thrown in the way
of the prosecution, by the accused, he contended, that the oppo-
sition made Do the introduction of this testimony, and to the ar-*'
Mngement of the attorney for the United States, was unprece-
dented ; that from the first foundation of courts to this day, it had
been the practice for the prosecutor to display the evidence in
bis own way; and that it manifested a disrespect to the attorney,
to require a departure A'om it, in this instance. I defy, said
Mr. Wirt, the gentlemen to produce a single example, from
aM the English amhorities, from the whole history of their ju-
risprndenee, where the attorney general., or the counsel for the
crown^ has been arrested in the introduction or arrangement of
the evidence, by the counsel of the defendant, and put on a dif-
ferent course* I defy them to produce a single example, of any
interference with the course adopted by the prosecutor. It de-
pends on himself, who knows the evidence best, to state and ex-
hibit it according to his own judgment. If the whole evidence
be addled, the result will be the same, in whatever manner
it may be arranged; but the chronological order which the attor-
ney was about to pursue, unfolding events as they occurred, is no
less conformable to law and' reason, than sanctioned by uniform
eiEperience* It develops this conspirtacy from its birth to its con-
summation'; unravels the plot from its conception to its denou-
ment, and traces Aaron Burr step by step as he advanced and
became more bold^ nil the act was consummated, by the assem-
blage on Blannerhassett's island. Is not this the lucid' order of
nature and reason? Would you begin to narrate a tale at the end
of it? If you were to write a history of the late revolution, would
you begin at the siege of York? We wish to display the history
of facts as they happened, not only because it is the most lumi-
nous mode of communicating them to the jury, but because it is
our duty to vindicate it as the right of the attorney, as consis-
tent with universal practice in prosecutions, both in our own,
and every other civilized country. Examples of a contrary
practice, might be found in England, if it ever existed; but no
case can be shewn in the courts of Great Britain, where the
counsel for a prisoner has been permitted on a trial, to invert the
order of chronology for his own purposes* I refer the court to
455
the Trial of Hardy ^ pages 95, 96, 9r. Though that case i« not
directly applicable to the case now be£>re thp court, I introduce
it, to shew the independence of the attorney general of England*
in conducting prosecutions, and introducing testimony as he
thinks proper; and to prove th3t the opposition now made to our
evidence, is unusual in that country. He introduced many letters
and papers against Hardy, and dechrati&ns of his associates* Id
p. 95, ^^ Then followed the correspondence between Mr. Hardy
as secretary to the corresponding society, and Mr. Gerald and
Mr. Margarot, two of the delegates at the convention in £din*
burgh; most of these papers weie printed also in the appendix to
the report of the committee of secrecy." They were produced by
a witness of the name of Gumell. These papers being all read
by the officer of the court, Mr. Bowen said, ^^ My lords, we now
propose^ on the part of the crown^ to read the proceedinga of the
convention itaelf^^ To this, Mr- Erskine, for the prisoner, objected;
because, though the society had been formed, the object of its
formation had not yet been heard of by evidence; that if Marga*
rot and Gerald had exceeded the letter and spirit of their in-
structions, the prisoner could not be affected by it; that he was
charged with no act of the .convention at Edinburgh. ^^ He is
charged," said Mr. Erskine,/?* 96, ^^ with having encompassed'
the death of the king; to prove that he had that wicked inten*
tion, the evidence should be clear, and refer to the act itself;
but no act can be given jn evidence^ that does not go to shew^ that
the prisoner had that encompassing in his own heart at the time
the act was committed**^ This shews his conviction, that proof of
the intention may precede that of the acts; p. 97. ^^ I must take
care that the rules of law are preserved inviolate. All that I mean
to say, is, that if Mr. Hardy knew of the. proceedings of this con-
vention in Edinburgh, then my objection falls to the ground in
this respect." The lord president agreed that the evidence pro*
posed, could not be adduced immediately against the prisoner.
He observed, however, that it might be let in.; but that the ap»
plication of it was another thing. At all events, the prisoner
might afterwards object that the delegates had exceeded their
commission, and that objection would be valid so far. Mr.
Bower. ^ Yes, my lord, we mean to shew^ in many instances,
the prisoner'^s subsequent approbation of the proceedings of the
British convention.^^ The lord presidc^nt. " That declaration is
enough to let in the evidence^ the application of it will depend on
what will further appear.'*
Now, sir, how were the proceedings of this convention admit-
ted as evidence i The court decided, that they should be first
read, and applied afterwards by other testimony, to Hardy. Did
the court tell the prosecutor, '^ you shall stop^ till you sheiv a pre--
vious connexion betzveen themy and his subsequent approbation;
456
yott shall not read these proceedings ?'' The attorney told the court
^* I will adduce evidence to lei the testimony in. I will prove his
approbation subsequently.^^ The attorney's declaration^ of his m-
tention to prove the approbation of Hardy, was respected by the
court, and tho^e proceedings were permitted to be read. Now
here was an evident perversion of the rule, for which the gende-
meh contend. For according to it, the subsequent approbation of
Hardy ought to have been proved before the proceedings of the
convention; the admissibility of the latter depended on the proof
of the former. If this approbation could not have been proved
afterwards, the reading of the proceedings would have been ille-
gal and the time employed in it lost. But the court did not stop
the attorney. It told him, on your declaration thaf you will
bring it home to Hardy ^ you may read the evidence now* Yet this
was a direct perversion of the doctrine which gentlemen wish
now to establish. Why should not the same respect be paid to
the declarations of the attorney for the United States in this
case? If you permit us to proceed in the way we propose, we
shall neither violate principle nor waste time. Can there be an
overt act of treason without an intention to commit it? Can any
assemblage, however large, armed or arrayed, however disor*
derly and tumultuous, commit an act of treason without intend*
ing it? and ought not their intention be proved? The rule of law
excludes whatever does not touch the issue ; but the intention
is an important feature in that issue. Every transaction derives
its character principally from the intention. It is the great point
in every case. Yet we are stopped from explaining the intention
by a pretended difficulty; that its premature introduction tends
to fettbr the minds of the jury, as if the proof of the intention
preceding that of the act, did not present an unity of action from
the birth to the consummation of the design. But we are to be
stopped. The objection manifests a want of respect for the at-
torney, as if he knew not, better than any other, the nature and
bearing of the evidence, apd how to unfold it, in the most regu-
lar way. It is improper not only for this reason^ but because
the mode we propose, is the most luminous and correct;* it is
the order of nature itself, as it traces the transactions from be-
ginning to end. We insist on its correctness for another reason ;
because the method they propose, cannot produce a single
good effect. Gentlemen say, that if we prove the overt act first,
we can be permitted to shew the design afterwards. They say
that none is yet proved. Suppose we prove no overt act in the
opinion of the court, how are the jury to be disposed of? Could
you send them out to deliberate or could you discharge them?
If the prosecutor state that he is about to proceed to prove the
intention, can the court say that it does not prove the overt act,
and that therefore they will send the jury out without hearing the
457
evidence respecting the intention? The court has no such powd-
ers. The only power which the court possesses is, not to direct
the order in which the evidence shall be introduced, but tp
instruct them oo the law ; to direct whether the evidence be
competent or incompetent to be laid before the jury: to determine
its weight or sufficiency to prove the overt act is the exclusiv.e
province of the jury. The court cannot withhold from them any
evidence touching the issue. Will the court stop us ? Will the
court or the jury decide on the issue? All the authorities of the
law concur in this, that the whole testimony shall come before the
jury ; that they have a right to hear the whole and decide on it.
The only inquiry now is, as to the order in which it shall be
introduced. We insist that the mode which we propose, is the
most luminous, and most favourable to a complete comprehen-
sion of the subject; and that that which they maintain, is the
most confused and worst calculated to attain that end.
I will refer you to the sentiments delivered by judge Iredell^
on the Trial of Fries^ pages 174, 175: Mr. Lewis having stated
a question, whether the overt act laid in the indictment in a cer-
tain county, must not be proved to the satisfaction of the jury,
both as to fact anfl intention in the same county; or whether tlie
overt act did not include both fact and intention? Judge Iredell
replied, " that he consiidered Foster* s Crown LaWj as settling that
point. When two witnesses are produced, who prove the overt
act laid in the indictment, there might then be evidence from
other counties, respecting the intention. This is the opinion of
judge Foster, and it is my opinion. But there is another thing.
It goes to a point which is inadmissible; it is not for the court to
say^ whether there were a treasonable intention or act as charged
in the indictment; that is for the jury to determine^ we have only
to state the law. We therefore should have no right to give an opi^
nion upon it. Again, if no evidence could regularly be admitted
out of the county, until both die fact and intention were esta-
blished, where the crime is laid, the consequence would' be, that
there ought to be some way of talcing the opinion of the jury,
whether they believed that the crime was committed at Bethle-
hem, before the court could proceed to extraneous testimony!
This cannot be done. A jury must give a verdict on all the evi-
dence collectively: if the evidence he admitted, then the jury is
bound to respect the weight of it; the competency of that evi*
dence is for the court to decide; but the jury must estimate its
weight/^ You cannot stop the prosecutor after he has given a
part of the evidence. The jury must hear the whole, and make
up an opinion on the wholei Neither the court nor the gentle-
men can stop us. If we prove an act in the course of the whole
evidence, it will suffice. If we prove either first, we must go a
Vol. I. 3 M
.458
step beyond that, and prove the other, so as to shew that it is a
complete overt act of treason*
Mr. Botts has referredHo the opinion of judge Iredell, but cer-
tainly it cannot be interpreted in his favour. T||p judge is not
contemplating the order of evidence; he speaks of the evidence
to the jury. The point before him was, not the order of the tvi-
dence, but the propriety or impropriety of its introduction at
all. The inquiry was, whether the prisoner were guihy of levying
war against the United States, at Bethlehem, in Northhampton
county, and whether the evidence supported that charge? and
the judge told the jury, that, if the prisoner went to the place
where the act was committed, with treasonable intentions, the
treason was complete. He investigated nothing but the propriety
of the evidence. Of its order y nothing was said. The court can-
not stop the inquiry. Who^ is to judge of the evidence of the.
overt act? The court? Will the court tell the jury when they arc
satisfied, that the overt act has been proved? When are we to be
stopped? Is the court to decide at what stage of the evidence we
are to be stopped? If the court stop us before we adduce allour
evidence, they usurp the power of deciding on the evidence. Is
this a part of your functions? I think not. The whole evidence
must be laid before the jury; the court taking care not to let in
any but what is legal. The authority quoted by Mr. Botts,
from Foster y 216. has no sort of application to this point.*
The principle of the decision in VaitgharCs cane is not against
us. The indictment against captain Vaughan, was for adhering
to the king's enemies on the high seas; and the overt act laid waa
his cruising on the king's subjects, in a vessel called the ^^ Loyal
Clencarty.^^ The counsel for the prosecution oflfered evidence to
prove, that he had some time before, cut away the custom house
barge, and had gone a cruising in her. This evidence was oppo*
sed by the prisoner's counsel, and rejected by the court; *'^for
were it true^ it is no sort of proof, that the prisoner had cruised
in the Loyal Clencarty, which was the only fact he was then to
answer for." This case only proves, that on a trial on an indict>-
ment for any specific treason, evidence of a' previous intention
to commit a distinct substantive treason, is inadmissible; or in
other words, that the evidence must prove the charge; it being a
principle universally correct, that an offence different from that
which is charged, shall not be proved. It was merely the rejec-
tion of evidence foreign to the point in issue. It only proves that
no evidence of what is a different and distinct substantive treason
of itself, shall be admitted to support any indictment. This doc-
trine ought to have more effect in England than in this country,
since the abuses against which it is intended to secure, might there
be more e:aensively injurious than here: but the same court allow-
ed o^er overt acts to be given inevidence,for the purpose of shew-
459
ingthe intention of the prisoner. It is, indeed, as Foster sa}*s, a
sound and just rule, that all evidence xvtthout the issucy should
be rejected: but how can testimony, shewing the intention of
Aaroti Burr, be said to be without the issue? It goes directly to
prove the treason in the indictment.
The doctrine in Smith and Ogden^ p, 82. explains the danger
of going out of the statement in the indictment, and shews the
necessit}' of preserving the principle, ^^ that the evidence must be
pertinent to the issue." The exhibition of proof of Aaron Burr's
intentions is within the rule established in the English courts,
and the decision in Smith and Ogden,
Mr. Wirt further remarked, that the former decision of this
court on this point, which gentlemen had thought proper to re*
fer to as decisive in their favour, could not be rightly so consi-
dered : that two material circumstances would justify this con-
clusion. First, the court at that time wished to avoid such a
discussion and display of the evidence as might prejudice the
public mind. Second, the court then decided on the law and the
fact, and performed the duties of judge and juror. It might de-
cide when it was proper to stop or proceed; be satisfied with the
testimony already introduced, or require more. But that now the
jury were to decide on the guilt or innocence of the accused, the
court had only to state the law on the different points arising in
the course of the trial.
Mr. Lee in substance contended, that the act, an open deed of
•^avy committed in the full view of the world, on the 10th day
of December, on Blannerhassett's island, if it ever existed, was
susceptible of clear proof; that the time, place and manner of com*
mitting the offence, as laid in the indictment, were material to
be proved; that it was not pretended that the counsel for the pro«
secution, had any right to exhibit proof of any other treason
than diat specified in the indictment; that the effect of the facts
to be proved, must be discussed hereafter, but that the proof of
them, as preliminary to, and the foundation of, other testimony,
was indispensably requisite; diat it was difficult to describe the
absurdity to which the admission of other evidence, before proof
of the acts authorising that admission, would lead; that it would
be almost as inconsistent and improper, as to attempt to make
the effect precede its cause, or according to the vulgar phraseo-
logy,'to ppt the cart before the horse; that it would be changing
the rules of law; that a gredt deal of time might be occupied in
adducing a great deal of testimony, to charge a man accused of
murder, with malignant intentions, when the person said to be
murdered, was actually alive; or of arson, when the bouse alleged
to be burnt was standing; that the act existed, or it did not. If
it existed, it ought to be immediately proved: if it did not exist,
460
they ought magnanimously to yield, as they could not produce
that testimony' which might render ajl other evidence applicable.
Mr. Lee further dilated with great force and ingenuity ; but
for the reasons before mentioned, his arguments •are necessarily
condensed.
Mr. Martik spoke to the following effect:
I shall take the liberty of adding a few observations, to what
has been already said. ,
The great question is, whether the prosecutors must not prove
an overt act in the first instance, before any other evidence can
be introduced? We contend that they must, and that law and
reason support us. They admit that colonel Burr must be proved
to have committed one or more overt acts; and that the court
and jury must be satisfied, that these acts were committed with
a treasonable design; that he levied war against the United
States, with intent to destroy the constitution and government
thereof. This is the true construction of the words " levying
Ti^ar." There can be no " levying war," unless the object and
design be the subversion of the government of the United
States. It is admitted that both these things must be proved,
before he can be found g\iilty.. The questioa which results ne-
cessarily is, which of them is first to be proved? The very elo-
quent and ingenious counsel admit, that it is not of much con-
sequence, in which order these facts are to be established; but
insist on proceeding as they have done, for two reasons; first,
because it is the most correct and usual mode; and secondly,
because it is a mark of disrespect to the attorney of the United
States, to interfere with his arrangement of the evidence. As
to the second cause, which I think proper to answer first, I will
only say, that we cannot conceive, why they should have con-
strued the performance of a professional duty, into a manifesta-
tion of disrespect for the gendeman. We exercbed a right and
discharged a duty to our client, in opposing what we deemed
an illegad proceeding. How then can he consider himself treated
disrespectfully? He certainly has no right to view it in that light*
We had no such intention; and I wil^ say further, that if he
conduct himself with that mildness and decorum, which ever
becomes a public prosecutor, he shall receive from us every
mark of respect. As to the first and principal reason urged by
gentlemen in support of this mode of conducting the prosecution,
that it is the most correct order of proceeding; it might be pro-
per, if it were an indictment for a conspiracy to commit treason,
to proceed in the first instance, to prove the intentions : but in
this prosecution for treason for " levying war^^ I confidently say,
that the most natural order of proceeding, is, to begin with pro-
ving the material act, without which, all other evidence whaiso-
461
ever, would be irrelevant and improper* In Great Britain, a
conspiracy to commit treason is made treason by a particular
statute; that is, ^^ compassing the death of the king," is made
high treason* In that particular instance, the intention, the mere
act of the mind is rendered, what it is in no other case without
an act in pursuance of it, criminal and punishable. In that case,
which is in fact a conspiracy to commit treason, the intention
of the heart, the formation of the design in the mind is the very
crime; and the correct mode of procedure on a trial fpr it,
would be to begin to shew the conspiracy, the number of per-
sons engaged in it, the time when^ and place ivhere^ they did
conspire, and other circumstances connected with the conspiracy:
but this applies only to a prosecution on an indictment for com-
passing the death of the king. In every other case, where a
material act constitutes the crime, the prosecutor must begin by
proving that act, either by positive testimony or strong circum-
stances, to shew that the party accused committed it. In a pro-
secution for treason for ^^ levying war^^ after the cause is opened,
proof of the act should be adduced, as is done in every other
criminal case. On a trial for murder, the act of killing must
first be proved, if not admitted ; in a prosecution for burglary,
the nocturnal breaking into the house must be proved; in lar-
ceny, the taking and carrying away must be proved; and in a pro-
secution for robbery, it is necessary to prove the taking by force
and violence from the person, before any. testimony can be ad-
mitted respecting the felonious intention. The true and natural
order in all prosecutions is to shew first that the principal act
on which the charge depends has been committed.
The gentleman who opened the cause argued it on the princi-
ciples of common sense, which he says is sometimes in discussion
not adhered to by lawyers. Let us examine whether he has him-
self verified this sentiment, and how his doctrine applies to this
case. Does not common sense require, that the act which is the
very foundation of the charge, should be proved in the first in-
stance? Would it not be absurd to go into evidence to shew that
the act was committed with a treasonable intent^ without any testi-
mony to prove that the act was committed at all? Is it rational
to inquire into the design and intention with which an act has
been performed, without proving that it has been performed?
The gentlcAian who spoke so eloquently against our motion,
says, that the jury must judge of the weight of evidence, and
that the court cannot stop the prosecutor in his examination of
witnesses, and command the jury to find such a verdict as it
pleases to require! The general principle is not controverted by
us, but we deny the inferences which he has drawn from it. The
jury are certainly to decide on the weight of evidence, but the
court is to pronounce the law, ourrAa^ in or is not legal evidence*
462
Suppose only one witness were introduced to prove the overt acl;,
and it were candidly declared by the counsel tor the prosecution
that he could prove it by no other witness, would he be pennit*
ted then to proceed to examine the intentions of the party accu-
sed? Would 'it not then be the duty of the court to stop him,
and tell the gentlemen of the jury, that there was no evidence to
convict the accused; that it would be in vain to proceed farther,
since it was admitted, that the constitutional requisition of two
witnesses to pfove the overt act, could not be * complied with?
We do not contend, that the court has a right to tell the jury,
^< you must acqmt the party;'' but it is undoubtedly its duty to
expound and enforce the law, and this is all we want to be djone.
Permit me again, to recilr to the case of a triad for murder*
A great deal of the time of the court might be taken up to prove
malice on the part of the person indicted, when in truth no ad
could be proved, when it did not and could not appear that the
man supposed to have been murdered was actually dead! This
would be a fruitless waste of time* If there be no evidence that
the man is dead, there ought to be no inquiry into the design
inducing the commbsion of the overt act, the act of killing. If
the death, be proved, then the intention and other circumstances
are to be examined, and the jury must decide whether he be
guilty^ or not* This is the natural and legal order of proceedings
in criminal prosecutions. Hardy's case confirms and establishes
the propriety of this mode of proceeding* The first inquiry on
that trial was respecting the act charged in the indictment*
Thus, if A. were indicted for killing B* would the legal order
be to prove, in the first instance, that, long and frequent animosi-
ties had existed between them? The counsel for the prosecu-
tion must first prove, that B. has been killed by some body* If
there be any doubt as to the person who killed him, it must be
proved who did kill him* If it be proved that A. killed B* then,
and not till thep, more evidence is necessary to explain the mo-
tives and circumstances of the killing; because the law presumes
prima facie^ that a man who kills another, does it with malice
prepense, and therefore he must take off by his proof, this pre-
sumption of the law* In the case of larceny, as for instance,
foi* horse stealing, you prove the horse to have been taken from
the owner, and found in possession of the party accused. After
proving the principal fact, you go into evidence of the intention
with which the horse was taken* Does the public prosecutor go
into proof of the felonious intention, before proving that thi^
horse has been taken? So in the case of burglary, is it the natural
order of testimony, to prove that the accused intended to break
and enter into the house, in the night time, to steal or to commit
any other felony? Is it not the most natural order, to prove fit^t,
that he did actually break and enter the house, and then by evi-
463
dende to shew^ that he entered widi no other view than to com-
mit a felony. So on a trial for treason, for importing false or base
foreign coin, knowing it to be such, does the prosecutor^first call
witnesses to prove, that the prisoner knew the coin to be base?
Does he not first prove the importation? Would it not be pre-
posterous to go into proof of his knowledge of its baseness, with«
out proving that he imported it? The same remark applies to a
prosecution for passing false or counterfeit coin, knowing it to
be hhe or counterfeit. Would not the prosecutor first prove, that
he passed it, and then shew by testimony, that he knew it to be
base when he passed it? In both cases, he first proves the prin-
cipal fact, without which all other testimony would be useless;
and then proves the circumstances which shew that the prisoner
must have known the money to be base when, he imported or
passed it. They charge us with having committed treason in
^^ levying rvar^^ against the United States. This charge is too
vague, and must be supported by fiiU testimony according to the
well known principles of the law. Here let me mention, that the
question, whether any other act committed at a time and place
different from those stated in the indictment can be introduced
in evidence on this trial, is a distinct question from that now be-
fore the court; which is merely, what is the proper order of in-
troducing the evidence in support of the indictment?
Let me advert to the case of Hardy. It was an indictment for
compassing the death of the king, which as I have already men-
tioned, is distinguishable from all other cases, in this, that the
intention constitutes the crime. In that case, ^^ what is the natu-
ral and kidd order" of evidence, is expressly laid down. There
were several persons j>rosecuted in the same indictment. It
charged them ^^ First, with a conspiracy to compass or effect the
king's death. Secondly, with endeavouring to effect that object,
by means of an insurrection, or indting the insurrection with
that setded design." The court determined, that the legal order
of proceeding and admitting evidence, after having proved the
existence of the conspiracy, was to prove the connexion of the
person accused with the conspirators; and then to charge him
with the acts of the conspirators; that after proving his con-
nexion with them, he was liable to be charged with any of their
acts. In that case, the intention constituted the crime^ and the
connexion between the conspirators was first prdved, before the
acts of one were admitted to be given in evidence against ano-
ther. But this mode of proceeding, is only admitted in the case
of a conspiracy, or an indictment for imagining and compassing
the king's death. But in an indictment for *^ iem/ing tear," Ae
acts of one person have never been admitted to be given in evi-
dence against another; the overt acts must be proved against
even' individual accused. This distinction has been established
N
464
by a scries of determiiiatians of the mo^t able and correct fudges*
But if the acts of one cannot be charged or given in evidence
against ^lother, much less can his words or declarations. Sir,
the declarations of the party accused are not legal evidence
against him. Here they have brought witnesses, from remote
parts of the union, to prove the declarations of colonel Burr. I
contend, that till an act of war shall have been proved, these
declarations are utterly inadmissible against him. The gentle*
men admit themselves, that they are improper, unless as corro-
borative evidence; because the constitution requires, that the
confession of the person accused shall be in open court, before
a conviction shall follow.' I am- convinced, that all the declara-
tions in the world can only be received as* corroborative evi-
dence of facts proved within the dictrict. I do not wish to en-
large the question, or to waste the time of the court in discus-
sing questions touching acts committed out of the district, or
declarations explanatory of them. If any such evidence should
be offered in the progress of this investigation, the court will of
course stop it.
I agree with the attorney of the United States, in expressing
n^y approbation of some parts of the opinion of judge Iredell, on
the trial of Fries, which applied immediately to the case before
the court. I shall agree, with heart and hand, that no words or
declaration of a person' accused of this crime, ought to be admit-
ted in evidence, unless they are preceded by proof of facts. One
part of his opinion has an immediate application to the question
now before the court, where he says, " that after the overt act
laid in the district is proved by two witnesses^ it is proper to go
into evidence to shew the course of the prisoner's conduct at
other places, and the purpose for which he went to that place
where the treason is laid, and if he went with a treasonable de-
sign, then the act of treason is conclusive." But still this evidence
is improper, till after the overt act is proved. From another part
of the same opinion, which immediately follows, in pages 171 j
172, of that trial, he says, '^ We now come to the confession of
the prisoner, voluntarily made before judge Peters. Hert* is a
point of law relied on by the prisoner's counsel, that no man
should be convicted of treason, but on the evidence of two wit-
nesses, or itfion coTifession in opeii court. This is the provision in
England as well as here, and the meaning is, that no confession
of the prisoner, independent of two witnesses, or without the
facts have been established by two witnesses^ should be sufficient
to convict him: but if two witnesses have proved a fact^ the aQn-
fession of the party may be received by way of confirmation y of
what has before been sworn to. In former days, in England, it
was allowed, that confession out of court, and the proof of the
witnesses should be sufficient to warrant a conviction, fo<^ happily y
465
cur constitution would not admit it^ if an hundred would swear to
11; that danger is wisely avoided. Evidence may sometimes be
given, which may be doubtful, and want corroboration." ^^ But
if the confession of the prisoner go to confirm th« evidence,
tftnvorn to by two witnesses at leasts it may be received P^ He
then adds, what seems to be decisive on this point: ^^^i// unless
it do gv to corroborate other testimony^ I do not think it admis^
sibie. This shews clearly, that the testimony now offered, is not
admissible, as no act has been ytt proved; and that his conduct
at other places, and the intention with which he went to the
place where the imputed treason is laid, is not proper to be ad-
duced in evidence* ^^ Confessions out of court were formerly
admitted ;" *^ but that danger is now wisely avoided.'^ I am sure,
that if we were to go into an inquiry as to the admissibility of
this evidence, the plain words of the constitution ought to sa«
tisfy us at once, that ^ no person shall be convicted of treason,
unless on the testimony of two witnesses to the same overt acty
or on confession in open court.^^ No language can l}e more ex-
plicit. An insuperable objection to this kind of evidence, is, that
acts committed out of the district might be introduced by it.
We have said, that general Eaton's testimony d/)es not relate
to any acts committed any where, but to mere declarations out of
the district. We sincerely wish to avoid any anticipation of his
evidence, but since gend«men will impose it on us, and they ad-
mit it to be similar to his ex parte deposition which has been
already published, it is our duty to insist that the attorney for
the United States, shall produce no evidence .of declarations or
corroborative testimony of any kind, till he shall first prove Aie
material facts which admit of this confirmation. It is neither
reasonable nor constitutional, that acts out of the district should
be giveti in evidence. It might be a mere waste of the time of
the court, jur}', counsel and witnesses, to enter into a long and
elaborate examination and discussion, which would be totally
irrelevant, if no act could be proved. As the relevancy of all
other testimony depends on the proof of the act, every principle
of reason and law requires, that it should be first used as the foun*
dation of the rest.
On the trial of Fries, the first witness who was sworn, was
interrogated as to the act of " levying war;" whether he had
been at Bethlehem, at the time laid iu the indictment? and ">-
whether he had seen the acts committed ? that is, the rescue of
several persons lawfully in tlie custody of the marshal, 2uid other
acts of violence connected with the rescue. Every other witness
was interrogated in like manner; first, as to the acts committed;
and having established the fact, that the accused had committed
the overt act, then other evidence of a corroborative nature was
introduced. In page 37, the examinauon of colonel NichdTs
Vol. I. . 3 N
466
the marshal is atated; and he particularly describes the acts
committed by the prisoner. The testimony now offered woul4
be at present immaterial, because the act of war to which it ap«
plies is not proved. ,
On this point, I beg leave to refer to the sentiments of judge
Foster, in his Cronvn Law^ p. 246, which have been commented
on already. After stating, that on the trial of Vaughan for trea-
son, for adhering to the king's enemies, and cruising in a vessel
called the Ij>yalCiencarty^ the court rejected evidence to prove,
that he had, some time before,- cut away the custom*house barge,
and had gone a cruising in her: he says, that " the rule of reject-
ing all manner of evidence, in criminal prosecutions, that is fo-
reign to the point in issue, is founded on sound sense and com-
mon justice. For no man is bound at the peril of life or liberty,
fortune or reputation, to answer at once and unprepared, for
every action of his life. Few even of the best of men, would
choose to be put to it." Judge Patterson, on an occasion very
much like this, speaks with peculiar force and propriety. On the
trial of William Smith, when the defendant's counsel moved to
postpone the trial on account of the absence of some witnesses
said to be material, " The evidence, ("says he), which is offered
to a court must be pertinent to the issue, or in some proper
manner connected with it. It must relate and be applied to the
particular fact or charge in controversy, so as to constitute a le-
gal ground to support, or a legal ground to resist the prosecu-
tion. For it would be an endless task, and create inextricable
confusion, if parties were suffered to give in evidence to the
jury, whatever self -love or prejudice or whim or a wild imagi-
nation might suggest. This is an idea too extravagant to be en-
tertained by reflecting and candid men; as it would, if car-
ried into practice, quickly prostrate property, civil liberty, and
good government. Law would become a labyrinth, a bottom-
less pit; and courts would be perverted from their original de-
sign, and turned into instruments of injustice and oppression.
A line must be drawn — a line has been drawn on such occasions^
which it becomes the duty of judges to pursue. If there be no
line, any thing and every thing may be given in evidence. Where
shall we stop? What is the rule which we find to be laid down
for our guidance? The evidence must be pertinent to the issue; the
witnesses must be material. If the evidence be not pertinent^ nor
the witnesses material^ the court ought not to receive either ^^
A reason given by other respectable authors, for this doctrine
is, that the jury may be embarrassed and perplexed by evi-
dence not pertinent to the issue; and that the accused would be
unapprized and without notice of the charges to be thus exhi*
bited against him, and consequently unprepared to meet the
467
evidence which he is to resist. He cannot, as Foster says, be
prepared to answer at once for every action of his life. This
objection applies most forcibly in this case, where the compli-
cated evidence of one hundred and thirty-five witnesses is to
be introduced and considered. Notwithstanding the prejudices
and alarm which have been excited in this country, are yoii sure
that they were not all without any cause to justify them? If
colonel Burr's plans were most meritorious, predicated on
principles of an honourable war, and only to be carried on in
the event of his country being engaged in it, and with a view
to the emancipation of millions who are now in bondage, with
a design to take the bonds of slavery off many millions, he
would have merited the applause of the friends of liberty and
of posterity. This I contend was the case; but his friends may
now pray that he may not meet the fate that Washington him-
self would have met, if the revolution had not been establish-
ed. If you should permit the witnesses to go into complicated
tales of schemes and plots of severing the union, resting solely
on the imputed intentions of the accused, (and yet the result of
a long and elaborate inquiry would be, that there was no act of
war,) it would be worse than a mere waste of time, and would
expose, without any possible useful object, the private views
and intentions of the accused; prejudices would be increased;
the intention would be taken for the deed, under the influence
of impressions not to be resisted, when the act itself was incom-
plete. The jury ought not to be troubled with evidence, which
is wholly immaterial till the overt act be proved. I will ask,
whether on principles of common sense, any objection can be
urged against the production of the evidence which we call for,
if it can be produced? What do we ask? Do we ask anything
that will embarrass the prosecution?- Not the slightest incon-
venience can arise from their producing proof of the act, if
there ever were such an act. The witnesses, who know the act,
can be called on, and their testimony will' be distinct from all
the other evidence. What will be their alternative after a so-
lemn argument? If we sustain our position, that the order of
evidence is part of the law of evidence, and that before the in-
tention, the lact itself must be esublished, is it their purpose to
go into evidence of the intention before the act, or knowing it
not to exist, because it is the wish of the court that it should be
otherwise? I cannot suppose this to be their purpose; I have
too good an opinion of the gentlemen, notwithstanding appear-
ances, to suppose, that they intend to do so. But if it be so, the
court will decide without anticipating such conduct; expecting
that if the act exist, they will prove it, or if not, that they will
yield as they ought*
468
The principles of law ai^d of convenience, and the natural
reason of every man, all concur in requiring, that the first part
of the evidence to be proved^ should be the act* If it be first
proved, no inconvenience will result from it. The rules of law
should be general. If this principle of reason and convenience
be departed from in this instance, it may in every other; and
the most manifest and dangerous inconveniences in other cases
(if not in this) must result, if the court will permit gentlemen
to mdulge, what judge Patterson calls ^^ self-love, prejudice or
whim, or the suggestions of a wild imagination."
I will not omit another authority, which may not be directly
applicable to the distinction now before the court; but if applica-
ble, it maintains the same principle^ in directing the order of the
evidence* Ist Easfs Crown Law^ p. 96, 9r. *'*• In this, as in
other casea, founded on conspiracy, the conspiracy or agree-
ment among several, to act in concert together, for a particular
end, must be established by proof, before any evidence can be
given of the acts of any person, not in the presence of the pri-
soner, and this must be gei^erally done by evidence of the par-
ty's own acts, and cannot be colle<:ted from the acts of others,
independent of his own." ^^ When the -connexion between the
parties is once established, of which the court must in the first
instance judge« previous to the admission of any consequential
evidence to affect the prisoner by the acts of others, to which
he was not a party or privy, then whatever is done in pursu-
ance of that conspiracy, by one of the conspirators, though un-
known perhaps to the rest, at the time, is to be considered as
the act of all." This, at least, ascertains that the order oC evi-
dence is part of the law of evidence; and that facts may be im-
portant and material in one part of a prosecution, which, in
another may be entirely inadmissible. As in the case of a con-
spiracy, before you can introduce any testimony against a pri-
soner, of the acts of any other of the conspirators, you must
prove an association between them:* so in this case, before you
are permitted to introduce evidence of the intention being trea-
sonable, you must prove an act of war. Before you speak of a
treasonable intention, you must go on to prove the act which
makes it so. The overt act must be proved by direct evidence,
and confirmed by confirmatory evidence.
Mr. Martin referred to 3 Gilbert^ 816, and to several other
Mthorities, to shew that " when levying war" is the charge
laid in an indictment for treason, tho rule of proceeding is the
same as in murder, larceny and burglary, where the evidence
must rise out of the facts first proved, if not admitted. He again
referred to the case of the King v. Vaughan, who was indicted
for treason in adhering to the king's enemies, by cruising
469
against his subjects^ in the vessel called the Loytd Clencartyy
and whose acts, Mr. Martin said, were proved before any evi-
dence of any other kind: he also cited the case of Demaree
and Purchase, who were indicted for treason, in pulling down
meeting-houses, 8 State Trials^ 219, and the case of the King
V. Messenger and others, for pulling down bawdy-houses, 2
State TriaU^ 585. The first proof adduced in both cases, was
the act of pulling down the houses: in the former case,the overt
act was beginning to pull down aii conventicles or meeting-houses;
and in the latter, beginning to pull down and destroy ail baw^
dy-houses. The universality of the intention, constituted this
crime, which is a species of treason in ^^ levying war.^^ The
design to pull down and destroy all conventicles and all bawdy^
houses^ evidenced by the open deed of beginning to pulTdown
and destroy, was made treason by the statute;^ and although
there could be no treason without this universsd intention, yet
no proof of their intention, or of their declarations on the sub*
ject, was ever attempted to be introduced, till the fact of be*
S'nning to pull down and destroy, was first established. Mr.
[artin insisted, that nothing was more consonant to common
sense, than to prove the act before the ^^ quo animo;'^ that until
the overt act were established, and the time and place of its
commission were fixed, it was impossible for the court or jury
to determine with correctness and propriety, the ^^ quo animo^^
or design wherewith it had been done. He therefore hoped
that the prosecutor would not be permitted to proceed further
till he proved some overt act.
The court then adjourned till to-morrow morning, 9 o'clock*
Tuesday, August 18, 1807.
The court met according to adjournment.
The Chief Justice pronounced the following opinion, on
the question last argued, relative to the order of eviaence.
Although this is precisely the same question relative to the
order of evidence, wihich was decided by this court, on the mo*
tion to commit, yet it is now presented under somewhat dif»
ferent tirJumstances, and may, therefore, not be considered as
determined by the former decision. At that time, no indict-
ment was found, no pleadings existed^ smd there was no stand-
ard, by which the court could determine the relevancy of the
testimony offered, until the fact to which it was to apply,
should be disclosed. There is now an indictment specifying
the charge which is to be proved on the part of the prosecu-
tion, there is an issue made up which presents a point to which
sdl the testimony must apply, and consequendy it is in the pow-
470
erof the court to determine, with some accuracy, on the rele-
vancy of the testimony which mav be offered.
It is contended in support of the motion which has been
made, that, according to the regular order of evidence and the
usage of courts, the existence of the fact on which the charge
depends, ought to be shewn, before any testimony explanato-
r\^, or confirmatory of that fact can be received. Against the
motion, it is contended that the crime alleged in the indictment
consists of two parts; the fact and thejntention: that it is in
the discretion of the attorney for the United States, first to ad-
duce the one or the other; and that no instance has ever occur-
red of the interference of a court with that arrangement which
he has thought proper to make.
As is not unfrequent, the argument on both sides appears to
be, in many respects, correct. It is the most usefxil and appears
to be the natural order of testimony to shew, first, the ex-
istence of the fact respecting which the inquiry is to be
made. It is unquestionably attended with this advantage; there
is a fixed and certain object to which the mind applies with pre-
cision all the testimonv which may be received, and the court
can decide with less difficulty on the relevancy of all the testi-
mony which may be offered: but this arrangement is not clear-
ly shewn, to be established by any fixed rule of evidence, and
no case has been adduced in which it has been forced by the
court, on the counsel for the prosecution.
On one side it has been contended that by requiring the ex-
hibition of the fact in the first instance, a great deal of time
may be saved, since there may be a total failure of proof with
respect to the fact; and this argument has been answered, by
observing, that should there even be such failure, they could
not interpose and arrest the progress of the cause, but must
permit the counsel for the prosecution to proceed with that
testimony which is now offered.
Levying of war, is a fact, which must be decided by the ju-
ry. The court may give general instructions on this, as on every
other question brought before them, but the jury must decide
upon it as compounded of fact and law. Two assemblages of
men not unlike in appearance, possibly may be, the* oA: trea-
sonable and the other innocent. If, therefore, the fact exhibit-
ed to the court and jury, should, in the opinion of the court,
not amount to the act of levying war, the court could not stop
the prosecution; but must permit the counsel for the United
States to proceed to shew the intention of the act, in order to
enable the jury to decide upon the fact, coupled with the intention*
The consumption of time would probably be nearly the
same, whether the counsel for the prosecution commenced
471
I
«
with the fact or the intention, provided those discussions,
which respect the admissibility of evidence would be as much
^ avoided in the one mode as in the other. The principal im«>
portance which viewing the question in this light, would seem
to attach to its decision, is the different impressions which the
fact itself might make, if exhibited at the commencement or
close of the prosecution.
Although human laws punish actions, the human mind spon-
taneously attaches guilt to intentions. The same fact, there-
fore, may be viewed very differendy, where the mind is pre-
pared by a course of testimony, calculated to impress it with a
conviction of the criminal designs of the accused, and where
the fact is stated without such preparation. The overt act may
be such as to influence the opinion, on the testimony after-
wards given, respecting the intention; and the testimony re-
specting the intention, may be such, as to influence the opinion
on the testimony, which may be afterwards given respecting
the overt act.
On the question of consuming time, the argument was placed
' in one point of view by the counsel for the defence, which ex<
cited some doubt. The case was supposed of only one witness
to the overt act, and a declaration that it could be proved by
no other. The court was asked, whether the counsel would Be
permitted then to proceed to examine the intentions of the ac-
cused, and to do worse than waste the time of the court and ju-
ry, by exposing, without a possible object, the private views and
intentioi|3 of any person whatever?
Perhaps in such a case the cause might be arrested; but this
does not appear to warrant the inference that it might be arrest-
ed, because the fact proved by the two witnesses did not appear
to the court, to amount to the act of levying war. In the case
supposed, the declaration of the law is positive, and a point
proper to be referred to the court occurs, which suspends the
right of the jury, to consider the subject, and compels them to
bring in a verdict of not guilty. In such a case, no testimony
could be relevant, and all testimony ought to be excluded. Sup-
pose the counsel for the prosecution should say that he had no
testimony to prove the treasonable intention : that he believed
confidendy the object of the assemblage of nien on Blanner-
hassett's island to be innocent : that it did not amount to the
crime of levying war: surely it would be a wanton and useless
waste of time to proceed with the examination of the overt act.
When such a case occurs, it cannot be doubted that a nolle
prosequi will be entered, or the jury be directed, with the con-
sent of therattorney, to find a verdict of not guilty.
It has been trulv stated, that the crime alleged in the in-
472
dictment, consists of the fact and of the intention with which
that fact was committed. The testimony disclosing both the
fact and the intention must be relevant. The court finds no ex-
press rule stating the order in which the attorney is to adduce
relevant testimony, nor any case in which a court has inter«>
fered with the arrangement he has made. No alteration of that
arrangement therefore will now be directed.
But it is proper to add, that the intention which is consider-
ed as relevant in this stage of the inquiry is the intention which
composes a part of the crime, the intention with which the overt
act itself was committed; not a general evil disposition, or an
intention to commit a distinct fact. This specie^ of testimony,
if admissible at all, is received as corroborative or confirmatory
testimony. It does not itself prove the intention with which the
act was performed, but it renders other testimony probable
which goes to that intention. It is. explanatory of, or assistant
to, that other testimony. Now it is essentially repugnant to the
usages of courts, and to the declarations of the books by whose
authority such testimony is received, that corroborative or con-
firmatory testimony should precede that which it is to corrobo-
rate or confirm. Until the introductory testimony be given, that
which is merely corroborative is not relevant, and of conse-
quence, if objected to, cannot be admitted without violating the
best settled rules of evidence.
This position may be illustrated by a direct application to
the testimony of general Eaton. So far as his testimony relates
to the fact charged in the indictment, so far as it relates to levy-
ing war on Blannerhassett's island, so far as it relates to a de-
sign to seize on New-Orleans, or to separate by force, the west-
em 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 treason-
able design, it is a design to commit a distinct act of treason,
and is therefore not relevant to the present indictment. It can
onlV) by shewing a general evil intention, render it more pro-
bable that the intention in the particular case was evil. It is
merely additional or corroborative testimony, and therefore, if
admissible at any time, is only admissible according to rules
and principles which the court must respect, after hearing that
which it is to confirm.
The counsel will perceive how many questions respecting
the relevancy of testimony, the arrangement proposed on the
pdrt of the prosecution will most probably produce. He is how-
ever at liberty to proceed according to his own judgment, and
the court feels itself bound to exclude such testimony only, as at
the time of its being offered, does not appear to be relevant..
473
General William Eaton was then calted to give his evidehce.
He inquired, whether he might be permitted to have a recur-
rence to his -notes?
Chiet Justice. — ^Were they written by yourself?
Mr. Eaton. They were taken and copied by me from others,
which are at my lodgings.
Mr. Burr's counsel objected, unless he had the original noteii.
Mr. WiCKHAM. — At what time were they taken?
Mr. Eaton. At different times.
Mr. BuRR.«-What is the nature of them?
Answer. They are nothing but memoranda taken from notes,-
which I made of the conversations between you and myself, dt
the times when they passed.
The court decided, that they were not admissible.
Mr. Eaton. May I ask one further indulc;ence from the court?
I have been long before the public. Much stricture and some
severity have passed upon me. May I, in stating my evidence,
be permitted to make some explanation about the motives of my
own conduct?
Chief Justice. — Perhaps it would be more correct for the'
court to decide upon the propriety of the explanation, when the
particular case occurs. Some cases may require it ; and if any
objection be made to your explanation, then the cOurt will decide
upon it.
Mr. Eaton. Concerning any overt act, which goes to prove
Aaron Burr. guilty of treason, I know nothing.
Mr. Hat.-— I wish you to state to the court and jury, the dif-
ferent conversations you have had with the prisoner.
Mr. Eaton. Concerning certain transactions which are said
to have happened at Bl^nerhassett's island, or any agency
which Aaron Burr may be supposed to have had in them, I know
nothing. But concerning colonel Burr's expressions of treaso*
nable intentions, I know much, and it is to these, that my evi-
dence relates.
Mr. Martin.— *I know nothow far the court's opinion extends.
Chief Justice. — It is this ; that any proof of intention form-^
ed before the act itself, if relevant to the act, may be admit-
ted. One witness may prove the intention at one time, and ano^
ther may prove it at another; so as to prove the continuance of
the Intention throughout the whole transaction ; and therefore the
proof of very remote intentions may be relevant to this particu-
lar act.
Mr. Martik. — I trust, that when he speaks of a treasonable
intention not applicable to this act, the court will stop him.
Vol. I. 3 O
V
474
Mr. WicKi^AM. — if I understand Ae opinion of the court
correctly, it relates to treason charged to be committed in Vir-
ginia, and evidence of acts out of it, is inadmissible.
Chiet Justice. — The intention -to commit this crime, to
erect an empire in the west, and seize New-Orleans, may be
shewn by subsequent events to have been continued; and facts
out of the district may be proved, after the evert act^ as corro-
borative testimony.
Mr. Eaton. During the winter of 1805, 6, (I cannot be po-
sitive as to the distinct point of time; yet, during that winter),
at the city of Washington, Aaron Burr signified to me, that he
was organizing .a military expiedition to be moved against the
Spanish provinces, on the south western frontiers of the United
States: I understood under the authority of the general govern-
ment. From our existinj^ controversies with Spain, and from
the tenor of the president s communications to both houses of
congress, a conclusion was naturally drawn, that war with that
power was inevitable. I had Just then returned from the coast
of Africa, and having been for many years employed on your
frontier, or a coast more barbarous and obscure, I was ignorant
of the estimation in which colonel Burr was held by his country.
The distinguished rank he held in societ)*, and the Strong marks
of confidence which he had received from his fellow citizens,
did not permit me to doubt of his patriotism. As a military
character, I had been made- acquainted with none within the
United States, under whose direction a soldier might with grea-
ter securitv confide his honour than colonel Burr. In case of
my country's being involved in a war, I should have thought it
my duty to obey so honourable a call, as was proposed to me.
Under impressions like these, I did engage to embark myself in
the enterprise, and pledged myself to colonel Burr's confidence.
At several interviews, it appeared to be his intention to convince
me by ttlaps and other documents, of the feasibility of penetrat-*
ing to Mexico. At length, from certain indistinct expressions
and innuendoes, I admitted a suspicion, that colonel Burr had
other projects. He used strong expressions of reproach against
the administration of the government: accused them of want of
character, want -of energy, and want of gratitude. He seemed
desirous df irritating my resentment by dilating on certain inju-
rious strictures I had received on the floor of congress, on ac-
count of certain transactions on the coast of Tripoli; and also
on the delays in adjusting my accounts for advances of money
on account of the United Sta^tes ; and talked of pointing out to
me modes of honourable indemnity. I will not conceal here,
that colonel Burr had good reasons for supposing me disaffected
towards the government : I had indeed suffered much, from de-
475
lays in adjusting my accounts for cash advanced to the govern-
ment, whilst I Was consul at Tunis, and for the expense of sup-
porting the war with Tripoli. I had but a short time before been
compelled ingloriously to strike the flag of my countr}% on the
ramparts of a defeated enemy, where it had flown for forty-five
days. I had been compelled to abandon my comrades in war,
on the fields where they had fought our battles. I had seen cash
oflered to the half vanquished chief of Tripoli, (as he had him-
self acknowledged), as the consideration of pacification.
Mr. WicKHAM. — By whom ?
Answer. By our negotiator, when as yet no exertion had
been made by our naval squadron to coerce that enemy. I had
seen the conduct of the author of .these blemishes on our then
proud national character, if not commended — ^not censured; whilst
my own inadequate efforts to support that character were at-
tempted to be thrown into shade. To feelings naturally arising
out of circumstances like these, I did give strong expression.
Here I beg leave to observe, in justice to myself, that however
strong those expressions, however harsh the language I employed,
•thev would not justify the inference, that I was preparing to dip
my sabre in the blood of my countr}'men; much less of their
children, which I believe would have been the case, had this
conspiracy been carried int^o effect.
Mr. Martin objected to this language.
I listened to colonel Burros mode of indenmity; and as I had
by this time begun to suspect, that the military expedition he had.
on foot was unlawful, I permitted him to believe myself resigned
to his influence, that I might understand the extent and motive
of his arrangements. Colonel Burr now laid open his project of
revolutionizing the territory west of the Allegany; establishing
an independent empire there; New-Orleans to be the capital,
and he himself to be the chief; organizing a military force on
the waters of the Mississippi, and carrying conquest to Mexico.
After much conversation, which I do not particularly recollect,
respecting the feasibility of the project, as was natural, I stated
impediments to his operations; such as the republican habits of
the citizens of that country, their attachment to the present ad-
ministration of the government, the want of funds, the opposi-
tion he would experience from the regular army of the United
States, stationed on that frontier; and the resistance to be ex-
pected from Miranda, in case he should succeed in republicani-
zing the Mexicans. Colonel Burr appeared to have no difficulty
in removing these obstacles. He staled to me, that he had in
person, .(I think the preceding season), made a tour through
that couiKtry; that he had secured to his interests and attached
476
to his person, (I do not recollect the exact expression, but the
meaning, and I believe, the words were), the most distinguished
citizens of Tennessee, Kentucky, and the territory of Orleans; that
he had inexhaustible resources and funds; that the army of the
United States would act with him; that it would be reinforced
by ten or twelve thousand men from the above mentioned states
and territor}'; that he had powerful agents in the Spanish terri-
tor>% and " as for Miranda," said Mr. Burr, facetiously, ** we
must hang Miranda." In the course of several conversations on
this subject, he proposed to give me a distinguished command
in his army; I understood him to say, the second command. Iv
asked him who would command in chief. He said, general Wil-
kinson. I observed, that it was singular, he should count upon
general Wilkinson: the distinguished command and high trust
he held under government, as the commander in chief of our
army, and as governor of a province, he would not be apt to put
at hazard for any prospect of precarious aggrandisement. Colonel
Burr stated, that general Wilkinson balanced in the confidence
of his country; that it was doubtful whether he would much
longer retain the distinction and confidence he now enjoyed;
and that he was prepared to secure to himself a permanency. I '
asked colonel Burr, if he knew general Wilkinson. He said,
yes; and echoed the question. I told him that twelve years
ago I was at the same time a captain in the wing of the legion
of the United States, which general Wilkinson commanded, his
acting brigade-major, and aid-de-camp; and that- 1 thought I
knew him well. He asked me, what I knew of general Wilkin-
sonf I said, I knew general Wilkinson would act as lieutenant
to no man in existence. " You are in an error," said Mr. Burr,
** Wilkinson will act as lieutenant to me." From the tenor of
much conversation on this subject, I was prevailed on to believe^
that the plan of revolution nieditated by colonel Burr, and com-
municated to me, had been conceited with general Wilkinson,
and would have his cooperation; for colonel Burr repeatedly,
and very confidently expressed his belief, that the influence of
general Wilkinson with his army, the promise of double pay and
rations, the ambition of his officers, and the prospect of plunder
and military achievements, would bring the army generally into
the measure. I pass over here, a conversation which took place
between colonel Burr and. myself, respecting a central revolution,
as it is decided to be irrelevant, by the opinion of the bench.
Mr. Hay. — ^You allude to a revolution for overthrowing the
government at Washington, and of revolutionizing the eastern-
states. -
I was passing over that, to come down to the period when I
supposed he had relinquished that design, and adhered to the
project of revolutionizing the west.
V.
477
Mr. WicKHAM. — ^What project do you mean?
Answer. A central general revolution. I was thoroughly
convinced myself, that such a project was already so far or«
ganized, as to be dangerous, and that it would require an ef-
fort to suppress it. For in addition id positive assurances that
colonel Burr had of assistance and cooperation, he said, that
the vast extent of territory of the United States, west of the
Allegany mountains, which offered to adventurers with a view
on the mines of Mexico, would bring volunteers to his stand-
ard from all quarters of the union. The situation which these
communications, and the impressions they made upon me,
placed me in, was peculiarly delicate. I had no overt act to
produce against colonel Burr. He had given me nothing upon
paper; nor did I know of any person in the vicinity, who had
received similar communications, and whose testimony might
support mine. He had mentioned to me no person as principal-
ly and decidedly engaged with him, but general Wilkinson; a
Mr. Alston, who, I afterwards learned, was his son-in-law;
and a Mr. Ephraim Kibby, who I learnt was late a captain of
rangers in Wayne's army. Of general Wilkinson, Burr said
much, as I have stated: of Mr. Alston, very little, but enough
to satisfy me that he was engaged in the project; and of Kibby,
he said, that he was brigade major in the vicinity of Cincin-
nati (whether Cincinnati in Ohio or in Kentucky, I know not,)
who had much influence with the militia, and had already en-
gaged the majority of the brigade to which he belonged, who
were ready to march at Mr. Burr's signal. Mr. Bdrr talked of
this revolution as a matter of right, inherent in the people, and
constitutional; a revolution which would rather be advan-
tageous than detrimental to the Atlantic states; a revolution
which must eventually take place; and for the operation of
which,the present crisis was peculiarly favourable. He said there
was no energy to be dreaded in the general government, and
his conversations denoted a confidence, that his arrangements
were so well made, that he should meet with no opposition at
New-Orleans; for the army and chief citizens of that place
were now ready to receive him. On the solitary ground upon
which I stood, I was at a loss l)ow to conduct myself, though
at no loss as respected my duty. I durst not place my lonely
testimony in the balance against the weight of colonel Burr's
character; for by turning the tables upon me, which I thought
any man, capable of such a project, was very capable of doing,
I should sink under the weight. I resolved therefore with my-
self, to obtain the removal of Mr. Burr from this country, in a
way honorable to him; and on this I did consult him, without
his knowing my motive. Accordingly^ I waited on (he presiw
478
dent of the United States, and after a desultory conversation^
in which I aimed to jlraw his view to the westward, I took the
liberty of suggesting to the president, that I thought colonel
Burr ought to be removed from the country, because I con-
sidered him dangerous in it. The president asked where we
should send him? Other places niight have been mentioned,
but I believe that Paris, London and Madrid, were the places
which were particularly named. The president, without posi-
tive expression (in such a matter of delicacy) signified that the
trust was too important, and expressed something like a doubt
about the integrity of Mr. Burr. I frankly told die president,
that perhaps no person had stronger grounds to suspect that in-
tegrity than I had; but that I believed his pride of ambition
had so predominated over his other passions, that when placed
on an eminence, and put on his honor, a respect to himself
would secure his fidelity. I perceived that the subject was dis«
agreeable to the president, and to bring him to my point in the
shortest mode, and iat the same time, point to the danger, I
«aid to him that I expected, that we should in eighteen months
have an insurrection, if not a revolution, on the waters of the
Mississippi. The president said he had too much confidence
in the information, the integrity, and attachment to the union
of the citizens of that country, to admit any apprehensions of
$hat kind. The circumstance of no interrogatories being made
to me, I thought imposed silence upon me at that time and
place. Here, sir, I beg indulgence to declare my motives for
recommending that gentleman to a foreign mission at that
time; and in the solemnity with which I stand here, I declare
that colonel Burr was neutral in my feelings; that it was through
no attachment to him that I made that suggestion, but to avert
a great national calamity which I saw approaching; to arrest a
tempest which seemed lowering in the west; and to divert into
a channel of usefulness those consummate talents, which were
to mount " the whirlwind and direct the storm." These, and
these only, were my reasons for making that recommendation.
About the time of my having waited on the president, or a
little before, (£ cannot however be positive whether before or
aft^r) I determined at all events to have some evidence of the
integrity of my intentions, and to fortify myself by the advice
of two gentlemen, members of the house of representatives,
whose friendship and confidence I had the honor long to re*
tain, and in whose wisdom and integrity, I had the utmost
faith and reliance. I am at liberty to give their names if re-
quired. I do not distinctly recollect, but 1 believe, that I had a
conversation with a senator on the subject* developed to them
all Mr* Burros plans^ They did not seem much alarmed.
47d
Mr. Martiiv objected to the wittiess fttnting any of the ob-
servations of other persons to' himself.
After some desultory conversation between the counsel on
both sides, the chief justice said, that though more time was
wasted by stopping the witness, than by letting him tell his sto-
ry in his own way, yet if it were required, he must be stopped
when he gave improper testimony. He then told the witness,
^^You are at liberty to vindicate yourself, but declarations of
other gendemen are hot to be mentioned, because tliaet cer-
tainly would be improper.''
Mr* Eaton. I did ask indulgence of the court to make such
explanations, because perversions of my conduct were before
the public: but I waive this indulgence; contented with meet*
ing these perversions at some other time and place.
Chief Justice. — You have used that indulgence*
Mr. Eaton. Little more passed between colonel Burr and
myself^ relevant to this inquiry, while I remained at Washings
ton, though I could perceive symptoms of distrust in him co«
wards me, he was solicitous to engage me in his western plans.
I returned to Massachusetts, to my own concerns, and
thought no more of colonel Burr, or his projects, or revolu-
tions until in October last, a letter was put into my hands at
Brumfield, from Mr. Belknap, of Marietta, to T. £. Danielsoa,
of Brumfield, stating that Mr. Burr had contracted for boats
which were i)uilding on the Ohio*
Mr. Burr. — Have you that letter?
Mr. Eaton. No.
Mr. Burr. — It is improper then to state it.
Mr. Hay. — It is immaterial. Mr. Belknap is here.
- Mr. Eaton. As to letters, I have had no correspondence
with colonel Burr. I was about to state, that I had made a com-
munication, through Mr. Granger, to the president of the
United States, stating the views of colonel Burr; and a copy
of the letter from Belknap was transmitted td the department of
state.
Questions by the prosecution*
Mr. Wirt. — Was there any conversation between you and
the prisoner, in which you spoke of the odiuin attached to the
name of usurper?
Mr. Eaton. That conversation was excluded by the opinioti
of the court, as relating to the central project.
Mr. Hay. — Did you mean to state that the honourable indem-
nity propbsed to you by the prisoner was to be inclpded in this
plan?
480
Mr. Eaton. I understood it t6 be included in the perpetual
rank and emolument to be assigned me. In his conversations he
declared that he should erect a permanent government^ of
,i¥hich he was to be the chief; and he repeated it so often that I
could not have misunderstood him.
Cross-questioned*
Mr. Martin. — Do you recollect when you arrived in Wash-
ington?
Mr. Eaton. I ssdd that I did not recollect particularly. But
the principal part of these conversations must have been be-
tween the middle of February and the latter end of March,
1806. I arrived here in the latter end of November, 1805, at
Philadelphia; and in December, went to New-England, and af-
terwards returned; these conversations happened after my re-
turn.
Question* Did you go any remote distance till you came
backf Were you as far as Baltimore? (To these questions no
answers were made, or if made, were not heard.)
Question. Do you recollect any particular conduct b^yoars,
calculated to put an end to colonel Burros importunities?
Answer. Yes. At some of our last interviews, I laid on his
table a paper containing the toast which I had given to the
public, with an intention that he should see it, but I do not
know that he did see it, but I believe it. ^^ The United States:
palsy to the brain that should plot to dismember, and leprosy
to the hand that will not draw to defend our union."
Question. Where was that toast drunk?
Answer. I cannot say. This question was made to me from
authority. It was sent with other toasts I had corrected, to a
paper at Springfield. I laid this paper on colonel Burr's table.
Question. Was it drunk at any distant place? At Philadel-
phia?
Answer. I do not Recollect. I thought at first it was at Phila-
delphia, but on reflection, it could not have been there; but I
had received many hospitalities throughout the union; many of
my toasts were published; and in the hurry of passing and re-
passing, I have completely forgotten.
Mr. Burr. — Do you recollect when you left Washington?
Answer. About the 5th or 6th of April.
Question. Can you not be certain where this toast was
drunk? At Washington^ or at Philadelphia?
481
Answer* I am not certain when or where it was drunk, but I
am certain it was not at Washington, because I gave another
there when called upon.
Question. Did you say, that all these conversations happen-
ed between the middle of February and the last of March?
Answer. No : I did not say so. I said the principal part of
these conversations passed in thatintervaL
Mr. Burr. — Did you say the paper containing that toast was
laid on my table in March?
Answer. I cannot tell; it cannot be material; from that time
ouF intercourse became less frequent; you expressed some so-
licitude to keep me at your house.
Question. You say that this toast was printed at Springfield?
Answer. I did.
Question. Have you in your possession a paper containing
that toast?
Answer. I have not here.
Mr. Martin. — I)id you transmit tb<s toast for publicatio;i,
and to what printer?
Answer. I do not recollect distinctly.
Question. You me'ntioned something about a communica-
tion which you made to the president, through the post master
generaL Look at that paper. Is that your signature?
Answer. It is; and I must give a short account of that paper.
I went to Springfield about twenty-five miles distant from my
place of residence. Mr. Granger was there; I Vent to see him;
on my arrival there, in the evening, I understood that he had
gone out of town to his seat in the country; but that he had
taken notes concerning those transactions. Next morning I
went to his house; he put into my hands notes which l)e had
got from Mr. Ely.
Question. Whom were the notes written by?
Answer. By Mr. Granger; they were subscribed by him if I
have a correct recollection. Mr. Eaton then mentioned that
the notes on the two first pages were drawn up by Mr. Gran-
ger, from conversations which had passed between Mr. Gran<»
ger and Mr. Ely, on certain communications made to Mr. Ely
by Mr. Eaton, respecting colonel Burr's plans; that he had
seen Mr. Ely at Northampton, at the session of the court of
common pleas, at the time when they had first heard of the
building of boats on the Ohio* The notes on the lai^t page, in
Vol. I. 3 P
48$
Mr. Granger's writing« and subscribed by himself, wer^ from
subsequent conversations between him and Mr. Granger.
Question. How many days' travelling U it by the 9tage from
Springfield to Washington?
Answer.^ Not mor^ than five.
Mr. Burr. — You spoke of accounts with the government.
Did you, or the government, demand money?
Answer* They had no demand on me; I demanded money
of them.
Question. Did they state in account a balance against you?
Answer. I expended money for the service of the United
States, when employed as consul at Tunis; an account of which
being presented to the accounting officers of the treasury, they,
I was told, had no legal discretion to settle it. As there was
no law to authorise this adjustment, I did refer to the congress
of 1803, 4. A committee had reported on my claims, favoura-
bly, as I supposed; then my accounts were left; when I went
however to the coast of Barbary, and when I returned after
eighteen months, I renewed my claim to the congress. I found
that new difficulties had occurred to prevent an adjustment.
Leaving out the sums I had advanced, the government had a
considerable balance against me. Some comments were made
by a member from New-York, which I thought derogatory to
my character; but the balance was in my favour. The last ses-
sion of congress left them to the accounting officers to settle ac-
cording to equity. It has been since settled and paid.
Mr. M ARTiN.-^Did not colonel Burr confine hi^ plans to at-
tack the Spanish provinces, for the most considerable part of
the time, to the event of a war with Spain?
Answer. Not for the most considerable part of the time,
but for some time.
Mr. Martin asked him some questions relative to his hav-
ing seen him accompanied by his step-daughter and another
lady and a gentleman, at George-Town and Alexandria, about
the time he had spoken of; and whether he had given the toast
then, when together in the same room?
He admitted that he had seen him when so accompanied,
but was not positive when or where the toast was given.
Mr. Martin. — What balance did you receive?
Answer. That is my concern, sir.
Mr. Burr — What was the balance against you?
Mr. Eaton (to the court). Is that a proper question?
483
Mr.- Burr.-— My object is manifest; I wish to shew the bias
which has existed on the mind of the witness.
Chief Justice saw no objections to the question.
Mr. Eaton. I cannot say to a cent or a dollar : but I have re-
ceived about 10,000 dollars.
Mr. Burr.— When was the money received?
Answer. About March lasc
Question. You mentioned Miranda. Where did you under-
stand he was gone to?
Answer. On the benevolent project of revolutionizing the
Spanish provinces.'
Qu^tion. What part of them?
Answer. Caraccas. I had some reason too to know some-
thing of that project; because I too was invited to join in that.
He too was to have been an emperor; he might have been
troublesome to us; and of course when I asked you what wa(s
to be done with him, you observed, ^ hang him.''
Question. Did you understand, that I was to do all at once;
tb execute the central project too as well as those in t^ west?
Answer. I have no objection to answering that; but it will
be nothing in your favour. When colonel Burr was speaking of
a central revolution, not much was said about his revolution in
the west. Had the other been effected, I doubt much whether
you would have been willing to have separated that part*
Question. You spoke of a command?
Answer. You stated, what I have already mentioned, that
you were assured, from the arrangements which you had
made, that an army would be ready to appear, when you went
to the waters of the western country. I recollect particularly'
the name of Ephraim Kibby, who had been a ranger in genend
Wayne's army. You asked me about his spirit. You gave me
to understand that his brigade was ready to join you, and that
the people also in that country were ready to engage with you
in the enterprise. You spoke of your riflemen, your infantry^
your cavalry. It was with the same view, you mentioned to
me that that man [pointing togeneral Wilkinson, just behind
him] was to have been the first to £ud you; and from the same
views you have perhaps mentioned me.
Mr. Martin objected to the witness interposing his own
opinions in this manner. * '
Mr. Hay. — §ome allowance is to be made for the feelings of
a man of honour.
484
Mr. Eaton, bowing, apologized to the court for the warmth of
his manner.
Mr. Burr. — You spoke of my revolutionizing the western
states. How did you understand that the union was to be sepa-
rated?
Answer. Your principal line was to be drawn by the Allega-
ny mountain. You were persuaded that you had secured to you
the moist considerable citizens of Kentucky and Tennessee; but
' expressed some doubts about Ohio; I weU recollect that on ac*
count of the reason which you gave; that they were too much of
a plodding, industrious people to engage in your enterprise.
Question. How was the business to be effected?
Answer. I understood that your agents were id the western
country; that the army and the commander in chief were ready
to act at your signal; and that these, with the adventurers that
would join you, would compel the states to agree to a separation.
Indeed, you seemed to consider New-Orleans as already yours,
and that from this point you would send expeditions into the
other provinces; make conquests, and consolidate your empire.
Ques^n. Was it after all this that you recommended me to
the present, for an embassy?
Answer. Yes; to remove you, as you were a dangerous mai||
because I thought it the only way to avert a civil war.
Question. Did you communicate this to me, and what did I
say?
Answer. Yes: you seemed to assent to the proposition.
Question. What had become of your command?
Answer. That I had disposed of myself.
y Question. Did you understand that you had given me a defi-
* nite answer?
Answer. No : after yo>i had developed yourself, I determin-
ed to use you, until I got every thing out of you; and on the prin-
ciple that, " when innocence is in danger, to break faith with a
bad man is not fraud, but virtue." '
' Question. Did you think that your proposition, as to ji foreign
embassy, which was so incompatible with my own pbos, would
be received by me with indifference, had I abandoj^ed the pro-
ject? '
Answer. You seemed to me to want some distinguished place:
. iis to the mode, you were indifferent: and you seemed to acqui-
esce in the plan of a foreign embassy
48S
Mr* 'Hat.-*You said that you received about 10,000 dollars
fi:x>in the government, in consequence of a law passed for the pur-
pose. The act of congress did not give you a definitive sum.
Answer. The act of congress gave the accounting officers the
power of setding with me, on equitable principles, under the in-'
spection of the secretary of state; under whose department I
had served, and the setdement was accordingly made. •
Commodore Truxtun was then sworn.
Mr* Hat. — ^Were you present when the court delivered its
opinion?
Answer. I was. I know nothing of overt acts, treasonable
designs or conversations, on the part of colonel Burr.
Here Mr. Hat, the attorney for the United States, seemed
to doubt whether the evidence of the commodore applied to
this charge, and to be indisposed to examine him.
Mr. WiCKHAM then observed, that he*wouldput two ques-
tions to him. 1st, Whether he had not frequent and consider-
able conversations with colonel Burr, concerning the Mexicafti
expedition? 2d, Whether in any of those conversations he
ever heard him say any thing of a treasonable design?
Mr. Hat objected to his examination at this' time, and Mr.
Wickham insisted on it.
Mr. Wirt contended that the attorney had the right to exa-
mine the witness or not, at this time, as he thought proper;
that the court would recollect, that there were two indictments
against the prisoner; the one for high treason, now in discussion
before the court, and the other for a misdemeanor Tunder the
act of congress) for preparing an expedition against tne Spanish
provinces; that the witnesses were summoned promiscuously
to support both charges; that the attorney could not ascertain
what witnesses supported each indictment without inquiring
of themselves^ and what he now asked the witness, ought to be
considered merely as an inquiry to which of the two indict-
ments his evidence related; and that his evidence was deemed
very material on the second indictment, though not on the
first.
Mr. Hat said, that ob reflection he had noMdoubt the testi-
mony of commodore Truxtun would have a Arect bearing on
the subject now before the court,whenconnectedwith the other
evidence in the cause; that it would appear that there was an
intimate connexion between the two projects, the seizure of
New-Orleans and the attack on Mexico; he would therefore
examine him now and propound this question. Have you not
4
r
« 'I
486
had several conversations with the accused concerning the
Mexican expedition?
The commodore proceeded thus: — About the beginning of
the winter 1805 — 6, colonel Burr returned from the western
country to Philadelphia. He frequently, in conversation with
me, mentioned the subject of speculations in western lands,
opening a canal and building a bridge. Those things were not
interesting to me in the least, and I did not pay much atten-
tion to them. Colonel Burr mentioned to me that the govern-
ment was- weak, and he wished me to get the navy of the Unit-
ed States out of my head; that it would dwindle to nothing; and
that he had something to propose to me that was both honoura-
ble and profitable; but I considered this as nothing more than
an interest in his land-speculations. His conversations were
repeated freqtiently. 5ome time in July 1806, he told me that
he wished to see me unwedded from the navy of the United
States, and not to think more of those men at Washington :
that he wished to see or maie me, (I do not recollect which of
those two terms he used) an admiral : that he contemplated an
expedition to Mexico, in the event of a war with Spain,. which
he thought inevitable. He asked me if the Havanna could be
easily taken in the event of a war? I told him that it would reijuire
the cooperation of a naval force. Mr. Burr observed to me,
that, that might be obtained. He asked me if I had any perso-
nal knowledge of Cart)iagena and La Vera Cruz, and what wotild
be the best mode of attacking them by sea and land? I gave him
my opinion very freely. Mr. Burr then asked me, if I would
take the command of a naval expedition? I asked him if the
executive of the United States were privy to, or concerned in
the project? He answered empfuiticaliy that he was not : I ask-
ed that question, because the executive had been charged With
a knowledge of Miranda's expedition : I told Mr. Burr that
I would have nothing to do with it; that Miranda's project had
been intimated to me, but I declined to have any thing to do
with such aifairs. He observed to tne, that in the event of a
war, he intended to establish an hidependent government in
Mexico : that Wilkinson, the army, and many officers of the
navy would join. I told Mr. Burr that I could not see, how
any officer of tl^ United States could join. He said that gene-
ral Wilkinson mid projected the expedition, and he had n^a-
tured it : that many greater men than Wilkinson would join,
and that thousands^to the westward would join.
Question by Mr* Hay. Do you recollect having asked him
whether general Wilkinson had previously engaged in it?
487
-Aiawer. He said yeB,f and many greater men than. Wilkinr
son. • '
Question by Mr. Hay. I will ask you whether at that time,
you were in the service of the United States?
Answer. I was declared not to be.
Mr. Hay. I do not wish to hurt ypur feelings, but merely to
shew to the jury the state you were in.
Commodore Truxtun then proceeded : — Colonel Burr
again wished me to take a part and asked me to write a letter to
general Wilkinson; that he was about to dispatch two couriers
to him. I told him that I had no subject to wrrite about; and
declined writing. Mr. Burr said that several officers would
be pleased at being put under my command. He spoke highly
of lieutenant Jones, and asked me if he had sailed with me? I
told him that he had not, and that I could give him no account
of Mr. Jones, having never seen him to my knowledge. He ob-
served that the expedition could not fail; that the Mexicans
were ripe for revolt; that he was incapable of any thing chi-
merical^ or that would lead his friends into a dilemma. He
sthewed me the draught of a periauger or kind of boat that
plies between Faulus-Hook and New- York, and asked my
opinion of those boats, and whether they were calculated for
the river Mississippi and the waters thereof; and I gave him
my opinion that they were. He asked me whether I could get
a naval constructor to make several copies of the draught? I
told him I would. I spoke to a naval constructor and delivered
it to him, but as he could not finish them as soon as colonel
Burr wished, the draught was returned to him. Mr. Burr
told me that he intended those boats for the conveyance of
agricultural' products to market at New-Orleans, and in the
event of a war, for transports. I knew, and informed him,
that they were not calculated for transports by sea, nor for the
carrying of guns; but having determined to have nothing to do
with the Mexican expedition, I said very little more to. him
about those boats; but I very well recollect what I said to him in
our last conversation towards the end of July. I told him that
there would be no war. He was sanguine there would be war.
He said, however, that if he was disappointed as to the event
of war, he was about to complete a contract for a large quantity
of land on the Washita; that he intended to invite his friends
to settle it; that in one year' he would have a thousand families
of respectable and fashionable' people, and some of them of
considerable property' : that it was a fine country, and that they
would have a charmmg society, ancf in two years he would have^
double the mimber of settlers; and being on the frbntier, he
488
♦
ivould he ready to move whenever a war took place. I have
thus endeavored to relate the substance of the conversattons
which passed between us, as well as I can recollect. Though it
is ver}*^ possible th^t I have not stated them, after such a lapse of
time, o^r^a^m. ^
Question by Mr. Mac Rae. Was it in your first conversa-
tion that he told you, that you should think no more of those
men at Washington?
Answer. It was in several.
Question by the same counsel. Was it not in July, that he
told you, that he wished to see ^*ou unwedded from the navjr
of the United States, and to make you an admiral?
Answer. That conversation happened in July. He wished
to see or make me an admiral; I cannot recollect which.
Question by Mr. Hay. — Did not those conversations take
place, after it was declared, that yqu were no longer in the ser-
vice of the United States?
Answer. They did*
In answer to a question by colonel Carrington, one of the
jury, he again stated, that the latter conversation was in July.
Question by Mr. Martin. — Was it not to the event of a
war with Spain, that these conversations related?
Answer. All his conversations respecting military and naval
subjects, and the Mt^xican expedition, were in the event of a
war with Spain. I told him my opinion was, that there would
be no war, and he seemed to be confident, that there would be
war.
Mr. Mac Rae. — Did he mention general Eaton in any of
those conversations?
^ Answer. He mentioned no person but general Wilkinson smd
Ueirtenant Jones.
' Mr. HAY.-^Had you not expressed your dissatisfaction at the
declaration of your not being in the service of the United States?
Answer. I had. The misunderstanding between the secreta-
ry of the navy of the United States and myself took place in
March 1802.
On cross examination, the commodore further stated, that he
had had several The did not know hOw many) conversations with
Mr. Burr ; and that as well as he could recollect, it was about
the latter end of July, that he informed him, that he was about
concluding a bargain for the Washita lands^ and wished also to
see him unwedded from the navy of the United States. He
489
added, cobnel Burr said, that after the Mexican expedition, he
intended to provide a formidable navy, at the head pf which he
intended to place me: that he intended to establish an indepen-
dent government, and give liberty to an enslaved world. I de-t
clined his propositions to me at first, because the president was
not privy to the project. He asked me the best mode of attack-
ing the Havanna, Carthagena, and La Vera Cruz ; but spoke of
no particular force.
Question by colonel Burr. — Do you not recollect my telling
you of the propriety of private expeditions, undertaken by indi-
viduals in case of war; and that there had been such in the late
war, and that there is no legal restraint on such expeditions?
Mr. Hat objected to this question as improper.
Colonel Burr insisted on its propriety, and that the gentle*
men for the prosecution had set an example far beyond it
Commodore' Truxtun answered: You said that Wilkinson,
the army and many of the officers of the navy would join, and
you spoke highly of lieutenant Jones.
Colonel Burr.— -Had I not frequendy told you, and fot
years, that the government had no serious intention of employ-
ing you, and that you were duped by the Smiths? and do you
not think that I was perfectly correct in that opinion?
Answer. Yes: I know very well I was.
Colonel Burr.— Were we not in terms of intimacy? Was
there any reserve on my part, in our frequent conversations; and
did you ever hear me express any intention or sentiment respect-
ing a division of the union?
Answer. We were very intimate* There seemed to be no re-
serve on your part. I never heard you speak of a division of
the union.
Colonel Burr. — Did I not state to you, that the Mexican
expedition would be very beneficial to this country?
Answer. You did.
Colonel BuRR.-*Had you any serious doubt as to my intea-
tions to setde those lands?
Answer. So far from that, I was astonished at 'the intelli«
gence, of your having different views, contained in newspapers
received m>m the western country, after you went thither#
Question. Would you not have joined in the expedition if
sanctioned by the government?
Answer. I would most readily get out of my bed »^ twelve
Vol. I. 3 Q
490
o^clock at night, to go in defence of my country, at her cHHjagalnst
England^ France^ Spain^ or any other country.
Mr. Hay. — Did the prisoner speak of commercial specula-
tions?
Answer. He said they might be carried on to advantage.
Question. Did he, in his conversations, speak of commercial
establishments, in which he or his friends were to have an ia-
terest?
Answer. He spoke oi setding that couptry, and sending pro-
duce therefrom to different parts of iSe world, Ncw-Orieans
particularly.
Mr. Wirt.— -Did he speak of an independent empire in Mex-
ico having an advantageous connexion with this country?
Answer. I understood him so^
Mr. Mac RA£.-~Did he wish to fill your mind with resent-
ment against the government?
Answer. I was pretty full of it myself, and he joined me im
opinion.
Mr. Wirt. — ^On what subject did Burr wish you to write to
general Wilkinson?
Answer. General Wilkinson and myself were on good terms,
and he wislied me to correspond with him; but I had no sub-
ject for a letter to him, and therefore did not write to him*
Mr. Hay. — ^Suppose we were to have a war with Spain,
would not New-Orleans be a proper place from whence to send
an expedition against the Spanish provinces? Is it not more pro-
per for that purpose, than any other place in the western purls of
the country?
Answer. Certsunly it is; but large ships cannot come up to
New^Orleans; small craft or vessels must take the expedition
down the river. '
Question by Mr. Parker, one of the jury. Did you imder-
st^id for what purpose the couriers spoken of were to be sent by
Mr. Burr to general Wilkinson ?
Answer. I understood from him, that there was an under-
standing between himself and general Wilkinson^ about the
Mexican expedition,
Mr. Parker. Was this expedition only to be in the event of
a w^r with Spain?
Answer. Yes: In aU his conversations widi me, he said that
this expedition was to take place only in the event of a
with Spain.
491
Mr. Parker. Was there no proposition made to you for such
an expedition, whether there was war or not?
Answer. There was not.
Colonel Burr said, that enterprises by individuals, are lawful
and customary in cases of war; and asked, whether there were
not preparations making in Philadelphia now for that purpose.
Answer. Preparations are making at New-York, as to gun
boats and fortifications. The merchants of Liverpool, in expec-
tation of war, build ships for privateers, and if there be no war.
they convert them into Guineamen.
Question by Mr. Mac Rae. — Are not the preparations go.*
ing on openly at New- York? Has any commander been ap-
pomted independent of the government?
Answer. No.
Question by colonel Burr.— Did I not say, that I had never
seen lieutenant Jones?
Answer. I do not recollect that, but you spoke highly of him.
Question by Mc. Hay, — ^When he proposed to make you an
' admiral, did not the thought strike you, how he was to accom-
plish this?
Mr. BoTTs denied that commodore Truxtun had siud that
Mr. Burr had promised to make him an admiral. \
Commodore Truxtun. — Mr. Burr told me he wished to make
or see me one, I do not particularly recollect which was his ex-
pression.
Question by Mr. Hat. — From what quarter of the world was
the expedition by sea to go?
Answer. I do not know. I did not ask him where it was to
go from.
Question by the same. Did you not understand that you were
to command the expedition by sea?
Answer. I declined the offer, and asked no questions parti-
cularly on the subject
Mr. BoTTs.-— Can ships be built secredy in a comer?
Answer. No.
I Peter Taylor was next sworn.
Mr. Hat asked him to state every thing he knew concerning
t the assemblage on Blannerhassett's island.
Mr. BoTTs objected to this mode of examination; and though
i he was willing to accommodate Mr. Hay so far as to let the wit«
i ness tell his story in his own way, yet he would not consent to his
introducing completely illegal tesdmony; he had no objec-
492
don to the witness stating, what colonel Burr had saidj or the
facts which happened on the island, though both were, strictly
speaking, improper evidence: but he would not aeree to his
speaking of the declarations of Mr. and Mrs. Blannerhassett.
Colonel BbRR said he waived the objection at present*
Mr. Hay.— This witness will directly prove the connexion of
Burr with Blannerhassett, and with the assemblage on the island*
Peter Taylor. The first information I had upon this subject,
was from Mrs. Blannerhassett, when Mr. Blannerhassett and Mr.
Alston were gone down the river. The people got much alarmed
concerning this business, and Mrs. Blannerhassett sent me to
Xexington after Mr. Blannerhassett, with a letter to prevent
colonel Burr from coming back with him to the island. I went
to Chilicothe, but I did not find Mr. Blannerhassett there, and I
then went on to Cincinnati. I was directed to call ^i Cincinnati,
at Mr. John Smith's, where I would find Mr. Blannerhassett.
I called at Mr. Smith's store, where I saw his son. I asked if
Mr. Smith was at home, he said yes. I said I wanted to speak
to him. His son went and told him, a man^ wanted to see him.
When Mr. Smith came out, I inquired for colonel Burr and
Blannerhassett, to see whether he could give any account of
them. He allowed he knew nothing of either of them. He al*
lowed I was much mistaken in the place. I said no, this was
the right place: ^' Mr. John Smith, storekeeper, Cincinnati.''
Says I, ^^ don't you recollect a'young man, who came here some
time ago for colonel Burr's top-coat?" [great coat]. I said,
"Sir, I have lived with Mr. Blannerhassett for three years."
When Mr. Smith heard me talk so, he knew me, and took me
up stairs to talk with me. He wanted to know the news up our
way. I told him the people had got alarmed. I told him that
everything was in agitation; that they talked about new setde*
ments of lands, as they told me. He seemed surprised. He
asked what was said about general Wilkinson? I said, I knew
nothing about it. He asked me if I would carry a letter from
him to Blannerhassett? I told him I would carry any thing, so as
it was not too burthensome; so he sat down and wrote a letter.
He asked whether I wished to drink ? for he charged me not to
go to any tavern, lest they should be asking me quesuons. He
gave me liquor and I drank; and then he shewed me a stable,
and told me to go and get my horse fed by the ostler, but
not to go into the tavern. I asked him where I should find
colonel Burr and Blannerhassett? He said, he expected they
were at Lexington. I told him, I supposed at Mr. Jourdan's.
He said, that was the very house. When I got to Lexington,
it was Saturday, about one o'clock. Mr. Jourdan happened to
493
be in the street and knew me. He said, <^ Peter, your old mas-
ter, as you call him, is not in town." But he said, before I asked
him, he expected him eiiher that night or to-morrow early. He
asked me, what news in our partsf and I told him. I asked him,
what I was to do with my horse? He said that he was to be .
put at the livery stable. He then went up stairs, and he opened
a door, . and made a motion with his hand, I suppose to colonel
Burr. I went in, and there was colonel Burr. Colonel Burr
wanted to know the news in our parts. I began to tell him, that
my business was to prevent colonel Burr from going back to
the island.
Question. Did you know colonel Burr at that time?
Answer. I did not. He had been on the island .three times;
but I did not see him. When I told colonel Burr that^ says he,
^^ I am the very man invc^ved in this piece of business ; and you
ought to tell me all you know." I said, ^ if you come up our
way, the people will shoot you." I told him, it was my sincere
opinion, that it was not safe for him to come up our way. I
told him, that I had heard several declare, that they had rather
shoot him than let it alone, if they had a good chance. He
seemed surprised, that they should have such a thing in their
heads. I told him, I could not tell why; and then I told him
about the land-settlement, but the people said all that was a Jib^
tind that he had something else in view. Then colonel Burr
asked me, what letters I had? I said, two; one was from Mrs.
Blannerhassett, and the other from John Smith, of Cincin-
nati. He asked me, if he might open the letter from John
Smith to Blannerhassett, for he expected it was for him? I told
him, I supposed it made no difference between him and Blan-r
nerhassett, and he might. He broke the seal open^ and shewed
me there was a letter inclosed for himself. He asked me about
my wife. I asked him, whether I might not go about the town.
He said I might, and then I went down stairs, and left the
opened letter with him. I then went to Mr. Jourdan, and asked
him, whether I was to stay at his house, or go to a tavcrii? He
said I was to go to a tavern, and he would pay for me. Mr..
Jourdan wished me to go next day to Millersburg, after the
saddle-bags, left there by Mr. Blannerhassett. I told him, I
would, and I did go. I left Mrs. Blannerhassett's letter with
Mr. Jourdan, expecting Blannerhassett to get there before me.
I got back on Monday by one o'clock ; and then Mr. Blanner-
hassett was come and preparing to go home. We started and
came ten miles that night. We stopt at a tavern. I went to see
after the horses, and he went into the house. There were peo-
ple in the house who wanted to know his name. He told them
his name was Tom Jones. He came out and told me, the peo-
494
plein the house had £»ked, and he had told them his name was
Tom Jones, and I must mind and not make no mistake,, but
call him Tom Jones too. So he passed by that name till we got
to tlte Mudlicks. He then told me he was knovm there, and I
must call him by his own name#
. Question. When did these things happen?
Answer.^ All this was in October 1806, 1 believe. He then
began to inquire for young men, that had rifles; good orderly
men^ that would be conformable to order and discipline. He
allowed that colonel Burr and he and a few of his friends, had
bought eight hundred thousand acres of land, and they>wanted
young men to setde it. He said he would give any young man
who would go down the river, one hundred acres ot land, plenty
^^ gi^g ^^^ victuals while going down the river, and three
Vfionths' provisions after they had gpc to the end; every young
man must have his rifle and blanket. I agreed to go myself, if I
could carry my wife and family, but he said he must have further
consultation upon that. When I got home I began to think, and
asked him, what kind of seed we should carry with us? He said
we did not want any, the people had seeds where we were gMng.
Mr. Wirt.— Of what occupation were you on the island?
Answer. A gardener.
Mr. Wirt. — I put this question, that the jury might under-
stand his last observation.
*
I urged that subject to him several times; at last he made a
sudden pause, and said, ^^I will. tell you what, Peter, we are
going to take Mexico; one of the finest and richest places in the
whole nforld.^ He said that colonel Burr would be the king of
Mexico, and Mrs. Alston, daughter of colonel Burr, was to be
the queen of Mexico, whenever colonel Burr died. He said that
colonel Burr had made fortunes for many in his time, but none
for himself; but now he was going to make something for him*
self. He said that he had a great many friends in die Spanish ter«
ritory; no less than two thousand Roman catholic priests were
engaged, and that all their friends too would join, if once he could
get to them; that the Spaniards, like the French, had got dissa-
tisfied with their government, and wanted to swap it. He told-
me that the British also were friends in this piece of business,
and that he should go to £ngland, on this piece of business, for
colonel Burr. He asked me if I would not like to go to England.
I said I should certainly like to see my friends there, but would
wish to go for nothing else. I then asked him what was to be-
come of the men who were going to settle the lands he talked
about? Were they to stop at the Red River, or to go on? He
49S
•aid, <^ O by God, I tell you, Peter, every man dmt will not
conform to order and discipline, I will stab ; youUl see how m
fix them ;" that when he got them far enough down the river,
if they did not conform to order and discipline, he swore by
God he'd stab them. I was astonished: I told him I was no
soldier, and could not fight. He said it made no odds ; he did
not want me to fight; he wanted me to go and live with Mrs.
Blannerhassett and the children, either at Natches, or some
other place, while he went on die expedition. I talked to him
again, and told him the people had got it into their heads, that he
wanted to divide the union. He said colonel Burr and he could
not do it themselves. All diey could do was to tell the pe^le
the consequence of it. He said the people there paid the ffovem-
ment upwards of four hundred thousand dollars a year, apu never
received any benefit from it. He allowed it would be a very fine
thing if they could keep that money among themselves on this
side the mountains, and make locks, and build bridges, and cut
roads. About two weeks after I got home, he sent me to doctor
Bennett's, of Mason county, with a letter. He wanted to know
if doctor Bennett wouUPn't sell him the arms belonging to the
United States, which were in his charge? If he could sell them
and keep himself out of danger, he^d give him a draft upon his
friend in Kentucky for payment: if he could not sett them without
bringing himself into a hobble, he must send him word where they
were kept, and he would come and steal them awc^ in the night.
I delivered the letter. He gave me directions to get it back and
bum it, for it contained high treason. I was not to give the
letter to doctor Bennett, until the doctor promised to deliver it
back, for me to bum it; for that it contained high treason. I did
bum it; the doctor was present.
The doctor read the letter, and said he was unacquainted with
the plot, and couUPn^tjoin in it.
Mr. Hat.— Were you not on the island when the people were
thetc?
Answer. Yes.
Question. When did the boats leave the island?
Answer. It was contemplated to sail on the 6th of Pecember;
but the boats were not ready; they did not come till the 10th,
rSunday.) Mr. Knox and several other men were with him, and
mey sailed on the Wednesday niglit following;
Question. How many boats were there?
Answer. Four,
§
Question. How many men from the boats came ashore^
Answer. About thirtv.
496
Question^ What did the men do,, who did not belong to the
boatsf
Answer. Some were packing meat; and some were packing
other things.
Mr. Mac Rae. — Who went off on Wednesday night?
Answer. Mr. Blannerhassett and Mr. Tyler/ and the whole
of the party.
Question. At what time in the night?
Answer. About one o'clock.
Question. Did all that came down to the island go away?
Answer. All but one, who was sick*
Mr. Hay. — Had they any guns?
Answer. Some of them had: some of the people went a
shooting. But I do not know how many there were.
Mr. J. M. Sheppard (a juryman.) What kind of guns; rifles
or muskets?
Answer. I can't tell whether rifles or muskets. I saw no
pistols but what belonged to Blannerhassett himself.
Question. Was there any powder or lead?
Answer. They had powder and they had lead both; I saw some
powder in a long small barrel, like a chum; but I was so em*
pl6yed I could not notice paiticularly. Some of the men were
engaged in running bullets; but I do not know how many.
Mr. Mac Rae. — ^What induced them to leave the island at
that hour of the night?
Answer. Because they were .informed, that the Kenawa mili-
tia were coming down there.
Question. Did you carry some boxes to the boats?
Answer. I carried half a bushel of candles and some bran-
dy; several boxes were carried, but I knew not what they con-
tained, and a great many things besides, of which I knew no-
thing.
Mr. Hay. — ^Were you on the island, when they went off?
Answer. Yes. They held a council at the foot of the pier, to
determine which was the best way to go. Mr. Blannerhassett
said, that they had better go together; if he went in a canoe, he
would be an easy prey. I said to them, " best stick together;"
and so they determined to stick together. They went off in great
haste.
Question. Why did they go in a body?
497
Answer. I suppose for security.
Cross-questioned.
Mr. WicKHAM.— .You saw general Tupper and Mr, Wood-
bridge diat night?
Answer. Yes.
Question. Was colonel Burr there?
Answer. No. I did not see him.
Question. Did you understand whether he were in that part of
the country at that time?
Answer. I understood not: never saw him on the island.
The court then adjourned till to-morrow.
Wednesday, August 19th, 180/.
The court met, according to adjournment, at the usual hour.
General John Morgan was then sworn, and gave the following
testimony.
Some time in August last, about this time twelvemonth, my
father put a letter into my hands, signed Aaron Burr, in which
he said that himself and colonel Dupiester would dine with him
the following day. My father requested me and my brother to
go and meet colonel Burr; which. we did, about seven miles dis-
tant. After a few words of general conversation, colonel Bun-
observed to me, that the union of the states could not possibly
last; and that a separation of the states must ensue as a natural
consequence, in four or five years. Colonel Burr made many in-
quiries of me, relative to the county of Washington; particular-
ly the state of its militia; its strength, arms, accoutrements, and
the character of its officers. These conversations continued some
time, besides other things, which I cannot recollect, because I
did not expect to be called upon in this way. After travelling
some miles, we met one of my workmen, a well-looking youn^
man. Colonel Burr said, he wished he had ten thousand such fel-
. lows. At my father's table, during dinner, colonel Burr again
observed, that the separation of the union must take place inevit-
ably, in less than five years. Shall I give the answers that were
made?
Mr. Wirt. — Perhaps it may ser%'e to connect your narrative
better.
' I recollect tfiat it was my father who answered him, God for-
bid! Colonel Burr in the course of conversation at the dinner ta-
ble, observed, that with two hundred men, he could drive the
president and congress into the Potowmac; and with four or five
Vol. I. 3 R
498
hundred he could takfe possession of the city of New- York. Af-
ter dinner, he walked with me to my brother's, about one mile
distant; and in the course of the walk, spoke of military men, and
asked me, if either of my brothers had a miUtary turn? He said
he should like to see my brother George at the head of a corps
of grenadiers; he was a fine, stout looking fellow* These cir-
cumstances induced me to speak to my father: I warned him to
beware of colonel Burr, and told him, that in the course of that
night, colonel Burr would attempt to have an interview widf him,
and would make a requisition of my brother Tom, to go with
him; and that I suspected something was going ^n, but what I
did not know. The next morning I rode with colonel Burr to
the town of Washington, about nine or ten miles. We had a good
deal of conversation, principally on militaiy afiairs; on the state
of the militia; the necessity of attending to military discipline.
He told me the effect it had in New-York; that in New- York,
the militia were in good order, which was brought about by the
influence and exertions of a single individual (colonel Swartwout.)
Colonel Burr asked me, if I thought I coukl raise a regitoent in
Washington county; or whether I could raise one with more fa-
cility in New- Jersey.
Mr. Wirt— You have lived in New- Jersey?
Answer. Yes.
At Washington, we took a walk; colonel Burr, colonel Du-
piester and inyself, down the towi^ and I pointed out to him
the house where Mr. Bradford lived, who had been at the head
of the westerp insurrection. He inquired about Mr. Bradford.
(He was at Baton Rouge.) I told him his son was in town, and
colonel Burr expressed a wish to see him. Colonel Burr men-
tioned to me, that he had met with several, who had been con-
cerned in the western insurrection; and particularly a major in
the North- Western Territory (whose name I do not recollect)
who had told him, that if he were ever engaged in another busi-
ness of the kind, he pledged himself it should not end without
bloodshed. He said that he was a fine fellow. It was on th^se
circumstances, that 1 advised my father to apprise the presi-
dent of the United States, that something was going on.
Questioned by the prosecution.
Mr. Hay.— Which way did he go?
Answer- I saw him leave Washington for Wheeling.
Mr. Wirt.— \^(ere the separation of the union and miUtaiy
affairs the predominant subject of his conversations?
Answer. Our conversation was very general and m\±ei
never very long; but these seemed to be the leading subjects. '
N
499
Mn Hat.— Do you recollect any dung he said, about Bra4«
ford's qualifications for conducting such an enterprise?
Answer. I recollect it well* He said that Bradford was very
incompetent to such an undertaking; ai)d that in such a case,
there ought to be the utmost confidence in the leader.
Mr. WiRT.«— At what time in the month of August was this
visit?
Answer. Somewhere between the 20th and 25tlu
Mr. Hay. — Perhaps the date of this letter (from the prison-
er to your father) may shew. This letter is dated on the 21 St.
Mr. Parker (one of the jury.) Did he approve or condemn
that sentiment of the major's which you have quoted.
Answer. I do not recollect;
Question. Did he make any further remarks respecting him?
Answer. He only said that he was a fine fellow, or words to
that effect; that he was very fit for business of that kind.
Cross-examined.
Mr. BuKR. You spoke of a letter from me to your father.
Do you know whether he wrote me, some time before, a letter
of invitation to his bouse?
Answer. Yes : He had written about a year before, to you at
Pittsburg. That letter is yet unsealed, in my brother Tom*«
bureau.
Question by the same. Do you remember that it was com-
municated to me, and that that was the cause of my coming to
visit him?
Answer. Not by myself or my brother, in my hearing.
Question by the same. Do you remember the manner in
which I introduced the subject you allude to. Was it in the
course of a lively conversation? Was there any thing very
serious in it?
Answer. You only mentioned it in a lively or careless
manner.
Question. Did your father communicate to you, next morn-
ing, our ftight's conversation?
Answer. Yes.
Question. Before we rode?
Answer. No.
Question. Do you recollect of my having made several in-
quiries also about the seminaries of learning; and of one that
500
was projected in your neighbourhood, and of my suggesting
the necessity of encouraging it?
Answer- You spoke much too on that subject.
Question. Did I seem to know any thing of Bradford, before
you told me?
Answer. You seemed to know a good deal about the insur-
rection.
Question. Did you not tell me that Bradford was a noisy
fellow?
Answer. I did not* I have no objections to give my opinion
of Mr. Bradford. I mentioned him to you as a mere lawyer.
Question. Did I seem to know that Bradford lived at Wash-
ington, before you mentioned it and pointed out his house?
Answer. You did not seem to know it.
Question. Who were at dinner at your father's?
Answer. My father, mother, wife, sister, colonel Dupiester,
Mr. T. Eweli and my brother Tom.
Colonel Morgan was then sworn, and was proceeding, when
Mr. Burr remonstrated against this kind qf evidence, consist-
ing of conversations and previous declarations. He did not
mean to interrupt the inquiry, but to prevent the time of the
court from being wasted. Some desultory conversation ensued
upon this point, when
The Chief Justice said, that he understood the same-ob-
jections would hereafter apply as well to the consideration as to
the introduction of testimony; that these objections might be
hereafter urged; and that it was impossible for the court to
know the nature of the evidence before it was introduced.
Mr. Hat. — If the gentlemen will only have a little patience,
they will find that other circumstances will come out to prove
the materiality of this testimony, and will also prove the most
' perfect connexion between the different parts of the conspiracy.
This wimess will prove what was the state of the prisoner's mind
in August last.
Mr. Lee. — I hope, then, the jury will distinctly understand,
that they are not to infer from the court's declining to inter*
fere on the present occasion, that every thing which drops from
the witness is to pass without objection, which may be made at
any time.
Colonel Morgan (the father of' the last witness). There has
bc«n a long acquaintance between colonel Burr and myself. He
501
had intnxluced to my notice, two of his nephews, by the name of
, and a third, by the name of Edwards, Pierrep(Hit
Edwards's son. I had received many civilities from colonel
Burr, and had received many civil letters from colonel Burr,
from New- York, in consequence of my civilities to those gen-
tlemen. After these things had passed, I had formed such an at-
tachment to him, that I never should have forgotten it, had not
this late business taken place. About three years ago, colonel
Burr was under considerable and, as I thought, unjust persecu-
tion. I had then a younger son (who is now here) studying law
at Pittsburg. I wished to make him known to colonel Burr, and
in consequence of my friendship for him, and of the great rage
of persecution against him, I invited him in that letter, to come
to see me at Morganza. In all probability, I should have done
the same thing, from the attachment which I had conceived for
him. Colonel Burr, however, had left Pittsburg before my letter
reached it, and it remains now in myson's bureau at Pittsburg.
On the 24th of last August, I received a letter from colonel
Burr, dated at Pittsburg, informing me, that he should dine with
me next day.
Here Mr. Hat handed the letter to colonel Morgan, who said,
that the letter was dated on the 21st, and that he had not for
some time seen it, as he had inclosed it to the president of the
United States, as introductory to his communication to him.
This letter was handed to me by a man who called himself
Count Willie, one p{ his attendants. I believe my son did not call
on me that evening; but next morning I informed him, that from
my great affection for colonel Burr, if I was able, I should cer-
tainly go and meet colonel Burr; and I requested him and his
brother to do it, with a letter of introduction, explanatory of
their names and their intention. What conversation took place
between him and my son I know not. Colonel Burr mentioned
to me in conversation, colonel Dupiester, as one of the first mi-
litary characters of the age. I shall pass over the conversation
and incidents during dinner. After dinner I spoke of our fine
country. I observed, that when J first went there, there was not
a single family between the Allegany mountain and the Ohio ;
and that by and by we should have congress sitting in this
neighbourhood, or at Pittsburg. We were allowed to sport these
things over a glass of wine. ^^ No, never,'* said colonel Burr, ^^for
in less than five years, you will be totally divided from the At-
lantic states." The colonel entered into some arguments to prove,
why it should and must be so. The first reason was, the produce
of the sale of the western lands being carried to the Atlantic
states, and that the people to the west should not be tributary to
tiiem. He said that our taxes were very heavy; and demanded,
502
why we should pay them to the Atlantic parts of the couotxy f
By this time I took an opportunity to observe, God foilnd! I
hoped that no such things would ever happen, at least in my time.
This observation terminated the conversation as to diat particu-
lar point* It then turned upon the weakness and imbecility of
the federal government.
Mr. Wirt. — Who started that subject^
Answer. Colonel Burr started it« I don't recollect sayings
any thing on the subject ; but began to think that all was not
right. He said, that with two hundred men, he could drive con-
gress, with the president at its head, into the river Potowmac;
or that it might be done; and he said with five hundred men, he
could take possession of New* York. He appealed to colonel
Dupiester, if it could not be done : he nodded assent. There
was a reply made to this by one of my sons, that he would be
damned, if they could take our little town of Cannonsburg with
that force. Some short time after this, colonel Burr went out from
the dining room to the passage, and beckoned to my son Tho*
mas. What their conversation was, I cannot say. Soon after, a
walk was proposed to my son's mill, and the company went.
When they returned, one (or both of my sons) came to caution
nie, and said, ^^ You may depend upon it, colonel Burr will this
night open himself to you.. He wants Tom to go with him."
After the usual conversation, colonel Burr went up stairs, and
as I thought to go to bed. Mrs. Morgan was reading to me, (as
is usual, when the family have retired) when about eleven
o'clock, and after I had supposed he had been an hour in bed,
she told me that colonel Burr was coming down, and as she had
heard my son's conversation, she added, " You'll have it now."
Colonel Burr came down with a candle in his hand. Mrs. Mor-
gan immediately retired. The colonel took his seat by roe. He
drew from his pocket a book. I suppose it was a memoran-
dum book. After looking at it, he asked me, if I knew a Mr.
Vigo, of Fort Vincent, a Spaniard. I replied, yes; I knew him;
I had reasons to know him. One was, that I had reasons to
believe that he was deeply involved in the British conspiracy in
1788, as I supposed; the object of which was to separate the
states; and which general Neville and myself had su]^ressed«
I called it a nefarious thing to aim at the division of the states.
I was careful to put great emphasis on the word ^ nefarious.^
Colonel Burr finding what kind of man he had to deal with»
suddenly stopped, thrust into his pocket the book which I saw
had blank leaves in it, and retired to bed. I believe I was pretty
well understood^ The next morning colonel Burr and colonel
Dupiester went off before breakfast, without my eiqiecting it^
in company with my son; and from that time to this, I have not
503
seen him but in this place. I well remember some explanatory
circumstances. My son agreed with me, that I should apprise
the president of our impressions, and point out a mode by which
colonel Burr might be followed step by step.
Mr. Mac Rae. — After your son's observation about the
town of Cannonsburg and the subsequent conversation, did the
prisoner draw any comparison between the people of the eastern
and western country?
Answer. He said, ^^ keep yourself on this side of the moun-
tain, and you'll never be disturbed." By which I understood,
that there was an attempt to be made, to effect a disunion.
There is one more circumstance which I must state to the court.
The Sunday after, the judge of our circuit court dined with me.
I requested him to mention the circumstances to general Neville.,
and invited him to come the following Sunday to dinner, with
judges Tilghman and Roberts, for i had business af the first
importance to communicate. The court being longer engaged
than was expected, they did not dine with me on that day ; but
they did on the following Sunday. These gentlemen wrote a
joint letter to the president, informing him of my communica*
tions to them.
Cross-examined.
Mr. Burr..— What sort of a book was the one I had in my
hand?
Answer. It was a small book like this. [A pocket book.]
Question. Was it bound?
Answer. It was not so large as this ; I do not recollect whe-
ther it was bound, as it would not be very polite in me to take
particular notice of such things, when gentlemen are at my own
house.
Question. When you spoke of a nefarious plan, to what trans-
action did you allude?
Answer. To Vigo's plan, which I conceived was intended to
dissever the union.
Question. Who were present when judge Tilghman saw you?
Answer. General Neville and judge Roberts and my son.
Question. Was there any other from Pittsburg?
Answer. None.
Question. Your conversation at dinner, then, was jocular about
the moving of congress to Pittsburg? Was not part of the con-
versation jocular?
Answer. My nuinner might have been jocular, but not my
meaning.
504
Question* Did you not once live on the Mississippi; or go
to that country with a design to settle there?
Answer. I did^ with the approbation of my country, in order
to taie up and distribute lands to all my countrymen to the
west of the Mississippi*
Question. Did you acquire any lands there?
Answer. I am told I have a right to some lands there.
Question. Where was it that you lived on the Missbsippi?
Answer. At New-Madrid.
Question. On which side of the Mississippi?
Answer. The west.
Question. In the Spanish territories?
Answer. With the approbation of the Spanish government.
Question. How long did you live there?
Answer. About forty days. I went from that place to New-
Orleans, where I detected a British spy.
Question. In what year?
Answer. In 1788.
General Morgan was then called in at the request of the
prisoner.
Mr. Burr. — In what state of mind was your father when
general Neville and judge Tilghman were there?
Answer. He had lately had a fall, which had done him con-
siderable injury.
Question. I mean as to his capacity. Did you not make some
apology to judge Tilghman for the ^tate of his mind?
Answer. I did tell judge Tilghman, that my father ivas old
and infirm; and like other old men, told long stories and was
apt to forget his repetitions.
Mr. Mac Rae. — ^What was the prisoner's reply to your
Answer. When colonel Burr said that with two hundred
men he could drive the president and congress into the Potow-
mac, I must confess that I felt myself hurt, and replied with
some warmth, " I'll be damned, sir, if you could take the lit-
tle town of Cannohsburg with that force." Colonel Burr re-
plied, ^^ Confine yourself to this side of the mountain, and it
is another thing."
505
Question* Do you recollect whether any thing werB said con-
cerning the people on die eastern and western sides of the Al-
legany.
Answer. He answered, ^* Confine yourselves on this side of
the mountain and it is another thing."
^ J'
Mr. Baker objected to this examination by Mr. Mac Rae,
as improper.
Question by Mr. Burr.— Do you recollect that the proba-;
bility of a Spanish war was mentioned?
Answer. It was a general subject of conversation between
colonel Burr and myself.
Thomas Morgan was next sworn: His evidence was as fol-
lows:
On the evening of the 21st of August, my father received a
letter from Pittsburg, by the hands of some person, the signa-
ture of which was Aaron Burr. In that letter the writer com-
municated his intention of dining with my father on ^the fol-
lowing day: he also mentioned that he should take the liberty
of introducing a friend. My father recjuested my brother and
myself to meet him, which we accordingly did. Nothing of im- ^
portance occurred during our ride in my presence. Colonel '^
ISurr rode generally with my brother; colonel JDupiester was
often with myself, and sometimes we were promiscuously to-
gether. Whilst we were at and after dinner, colonel Burr em-
phatically, as I thought, confidently and with great earnest-
ness said, that we (meaning the people of the west) would be
separated'in five years from the Atlantic states; the Allegany
mountain to be the line of division. He said that great numbers
were not necessary to execute great military deeds: all that'
was wantipg was a leader, in whom they could place confi-
dence, and who they believed could carry them through. This
conversation occurred during dinner. He said that with five
hundred men. New- York .could be taken; and that with two
hundred, congress could be driven into the Potowmac river.
To the last observation, my brother, I think, indignandy re-
plied, ^^ By. God! sir, with that force you cannot take our little
towi^f Cannonsburg." Colonel Burr's reply to this observa-
tion <^as, *^ Confine yourself to this side of the mountain, and
I'll not contradict you;'' or words to that eflfiect. Colonel Burr
withdrew from the room where we dined, and on reaching the
door leading into the entry, invited me, by a nod, to go with
him. When we had arrived at the back door of the entry, out
6f hearing of any other person, colonel Burr inquired what my
purauits were. I informed him that I was studying the law.
Vol. I. 3 S .
506
He then said, he was sure I could not find employment for
either body or mind; but he did not further es^plain himself^
He said that there were, or asked, if there were not, a number
of young men in Pittsburg similarly situated. He said that
under our government there was no encouragement for talents;
that John Randolph had declared on the floor of congress^ that
men of talents were dangerous to the government. He asjied
me, how or whether I would like a military expedition or en-
terprise? (I cannot recollect which, but it was some such ex-
pression*) My answer was, ** It would entirely depend upoa
the object or cause for which I was to fight.'* I think previous-
ly, or certainly soon after, he said, '^ I wish you were on your
way with me." After asking colonel Burr concerning a young
man (Mr. Duer) living at New-Orleans, with whom 1 had a
slight acquaintance, he said he was doing well; and he then
spoke of Duer's brother, of whom I knew nothing, who was
also doing well, as a la^vyer, but he had much rather be at. the
head of a military corps. Mr. Morgan then proposed to state
the steps which his father had taken to defeat A. Burr's pro-
jects, when he was stopped by the court.
Cross-examined. . /
Mr. Burr.— -Had you ever spoken to me before?
Answer. Never.
Question. Did you not mention, with some complaints, the
neglect which your education had received?
Answer. No.
Question. Did you not complain about wasting your time?
Answer. I recollect nothing on that subject, but your re-
mark, that I could not surely find employment for either body
or mind.
Mr. Wirt. — Do you recollect your answer to colonel Burr's
observation, that he would like to see you on your way with
him?
Answer. I do not recollect except what I have stated al«
ready. Here our conversation end^d.
Mr. Hay.-« — Do you recollect, when you said that your lik-
ing a military life would depend on the object or catHfc in
which you were engaged, whether any thing more was said bjr
colonel Burr?
Answer. No.
Examination of Jacob AUbright. '
Mr. Hay.— Our object is to prove by his testimony the ac-
tual assemblage of men on Blannerhassett's island^ and it goes
of course to prove directly the overt act.
507
Jacob Allbright. The first I knew of this business was, I was
hired on the island to help to build a kiln for drying com; and
after working some time, Mrs. Blannerhassett told me, that
Air. Blannerhassett and colonel Burr were going to lay in pro«
visions for an afrmy for a year. 1 went to the mill, where I car*
ried the com to be ground after it had been dried. I worked
four weeks on that business in the island. Last fall (or in Sep-
tember) after Blannerhassett had come home (he had been
promising me cash for some time) I stept up to him. He had
no money at the time; but would pay me next day, or soon.
Says he, ^^ Mr. Allbright, you are a Dutchman." But he asked
me first and foremost, whether I would not join with him and
go down the river? I told him, I did not know what th^y were
upon; and he sai^, ^^ Mr. Allbright, we are going to settle a
new country." And I gave him an answer, that I would not
like to leave toy family. He said, he did not want any families
to go along with him. Then he snid to me, ^^ You are a Dutch-
ihan, and a common man; and as the Dutch are apt to be scar-
ed by high men, if you'll go to New-Lancaster, where the
Dutch live, and get'me twenty or thirty to go with us, I will
{five you as many dollars." New-Lancaster was some distance
off. 1 weni home then, and gave him no answer upon that. ' In
a few days after the boats came and landed at the island. The
«now was about two or three inches deep, and I went out a
hunting. I was on the Ohio side; I met two men; I knew they
belonged to the boats, but I wanted to find out; and they ask-
ed me whether I had nbt given my consent to go along with
Blannerhassett down the river? As we got into a conversation
together they named themselves colonel Burr's men, belong-
ing to the boats, landed at the island. When they asked me,
whether I had not cpnsented to go down with Blannerhassett,
I put a question to them. I told them I did not know what
they were about; and one of the gendemen told me, they were
going to take a silver mine from the Spanish* I asked the gen-
tlemen, whether they would not allow, that this would raise war .
wrth America? They replied, no. These were only a few men;
and if they went with a good army, they would give up th#
country and nothing more said about it. I had all this conver-
sation with the two men. These men shewed me what fine ri-
fles they had, going down the river with them. Then I \i(ent tO
the island and Blannerhassett paid me off in Kentucky notes*
People however did'nt like these notes very well, and I went
over to the bank at Kanhawa to change them. I got two of
the notes changed; and one, a ten dollar note, was returned to
my hand, for which 1 wished to get silver from Blannerhassett.
I went to the island the day the proclamation came out. But
508
before I we&t to Blannerhassett's house, I heard he was not at
home, but at Marietta* I went on the Virginia side, where I
met three other men, belonging to the boats, with three cpm-
plete rifles. They made a call upon me, to take them to the
island in my canoe, and I accepted [excepted or refused] to it;
but afterwards I carried the third man, who stood close by my
canoe, over to the island. After being some time on the island,
I went down to the four boats. Blannerhassett was not at home
yet; and I met some of the' boat people shooting at a mark.
They had a fire between the bank and boats. I saW this in the
day time. '
Mr. Hay. — How many boats were there?
Answer. Four.
1 waited at the house till Blannerhassett came home. Heap-
peared very much scared. One of the boat-men came up to
him for something, and he told him, ^^ Don't trouble me, I have
trouble enough already." He went up to his chamber; and I
saw no more of him. I asked an old gentleman who was there,
and with whom I was well acquainted, t6 go up to his cham-
ber, and change my note for silver. He di Jgo, and brought me
silver. By and by I heard that they were going tg start that
night. Thinks I, ^^ I'll see the end of it." This was the night of
the very day diat Blannerhassett got back from Marietta. He
got back before night. When night came on, I was among the
men and also in the kitchen; and saw the boat-men nmning
bullets. One of them spoke out to the others, ^^ Boys, let's
mould as many bullets, as we can fire twelve rounds." After
that, Psaw no more till after twelve o'clock at night: Then
Blannerhassett came down from the chamber, and called up
some of his servants; he had four or five trunks. There were
not trusty hands enough to carry them to the boats; and some
person called after my name, and asked me to help them; and
I carried one of the trunks and moved along with them. When
we got. down, some person, I don't particularly know who, but
think it was Blannerhassett himself, asked me to stand by the
^runJS:s, till they were put in the boats. When the last of them
Went off, I saw men standing in a circle on the shore. I went
up to them; perhaps they were five or six rods from me. The
first thing that I noticed, was their laying plans and consulting
how Blannerhassett and Comfort Tyler should get safe hy
Galliopolis. One Nahum Bennett [perhaps Bent] wais called
forward, and when he came, Blannerhassett asked him, whe-
ther he had not two smart horses? Nahum Bennett answered
no; he had but one. Then Blannerhassett told him to go to cap*
tain Dennie, and get his sorrel horse; and Nahum Bennett told
509
bim, that the sorrel horse had no shoes on ; and Blannerhasaett
said, the roads were soft and would not hurt the horse* Blanner*
hassett told Nahum Bennett to meet him and Comfort Tyler with
the horses, somewhere about Galliopolis: Bennett inquired how
he was to find him out, should he inquire for him? ^^ No.'*
"Have you no friends there?" "No. Mrs. Blannferhassett
then came forward, and she told Blannerhassett ajid Coroibrt
Tyler, that they m\ist take a canoe and get into it before they
got to Galliopolis, and sail down the stream of ther Ohio; for no
body would mind a couple of men going down the stream. She
said " she*d^ pay for the canoe. Blannerhassett told Nahum
Bennett to take die two horses and pass round Galliopolis before
day, and then they might surround [go round] Galliopolis. Af-
ter that, a man by the name of 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 ^ien«
tioned. When Tupper made that motion, there were seven -or
eight muskets levelled at him. Tupper looked about him and
said, " Gendemen, I hope you will not do the like." One of the
gentlemen who was nearest, about two yards oflf, said, " Pd as
lieve as notJ^ Tupper then changed his speech, and said he
wished him to escape safe down the river, and wished him tuck.
Tupper before told Blannerhassett he should stay and stand
his trial. But Blannerhassett said no ; that the people in the
neighbourhood were coming down next day to iake him, and he
would go. Next day after, I saw the Wood county militia going
down. The people went oflF in boats tl^it night about one.
Question. All?
Answer. All but one, who was a doctor. All belonging to
the boats had some kind of arms* Some of the boats were on
the shore and some not.
Mr. Hat.»-How many men were there in all?
Answer. Abput twenty or thirty: I did not, however, connf
them. Every man belonging to the boats that I took notice of,
had arms.
Mr. Coleman (one of the jury.) What day, month, or year,
was this?
Answer. In the fall of the year. I don't fecoUept the month
or particular time, but there was snow on the ground.
Mr.HAY.-^Do you recollect whether it snows in September?
Answer. I do not know.
Mr.^ Sheppard (one of the jurj*.) Was Tupper ti magiBtrale
•r officer?
Answer. I know not.
\ I
/'
510
Question. TVhere had BlanneVhassett been^
Answer. In Kentuck7. ^
Mr. Wirt. — Had you seen colonel Burr on the island?
Answer. Yes.
Question. Was he there before Blannerhassett went to Ken*
tucky? ,
Answer. He was.
Question. Did you speak of the boats under the command of
Tyler?
Answer. I did.^
Question. Did the boats quit the island at the time ot hearing
about the proclamation?
Answer. Yes.
Question. Did the Wood county militia go there next day?
Answer. T<.'s.
Question by Mr. Parker (one of the jury). Did you hear
Peter Taylor give advice?
Answer. I did not.
Question by Mr. Parker. Did you see Peter Taylor coiDverse
with Blannerhassett that night?
Answer. I do not recollect, I was busy about the boats.
Question by the same. How long did Aaron Burr remain on
the island?
Answer. I do not recollect.
Question by the same. How long bad he been there before
the departure of the boats?
To this question, he jirat answered, that he did not know;
and that Mr. Burr never returned back to the island: but after
some reflection he said, that he had been there about six weeks
before the departure of the boats.
Mr. Sheppard (one of the jury.) How long was Blannerhas-
sett absent?
Answer. I don^t know. I did not live 6n the island.
Cross-examined.
Mr. Burr.— Was that Mr. Tupper called general Tupper?"
Answer. He >^as.
Question. Did you know general Tupper?
Answer. Yes.
Question. Is that the gentleman? [pointing to general Tup-
per, who was present in court].
Answer. Yes*
511
When the muskeu were levelled at him, did they
seem to have a mind to hurt him ?
»
Answer. TeB. A gentleman near me said, ^^jP^aj&'eo^ shoot
as nou^^ ^
Mr. B0RR.-^You 'said differently on a former occasion. Don't
yoii recollect making a statement in which nothing was said
about levelling guns at him ? and that it looked like exercismg?
Answer. I do not.
• A desultoiy conversation here ensued between the opposite
counsel.
Mr. Burr professed that it was his intention to degrade the
witness, by invalidating bis credibility.
Mr. Hay said, that it was very probable; if this ^an had at
different times stated what seemed to be contradictory, he did it
through ignorance ; and Mr. Burr insisted, that an error through
ignorance might be as injurious to hiin, as an error through im-
morality; he cared not which; that the consequences to him
were in both cases the same.
Mh Burr. — Have you not been examined before?
Answer. Yes.
Question. By whom?
'Answer. By Mr. Jackscxi.
Question. Had he not printed questions in his hand?
Answer. He had a paper in his hand.
Question. Did he set down your answers?
Answer. Y:s.
Question. How long after the guns were pointed at general
Tupper, before the men went to their boats?
Answer. I do not recollect. Any thing that I am not certain
of; I cannot speak to.
Question. Was Mrs. Blannerhassett there when the guns
were pointed?
Answer. Yes.
Question. Was Tupper inside of the circle?
Answer. Yes.
Question. Was she too?
Answer. I don't recollect
Question. Did you see Mr. Woodbridge there?
Answer. I don't know him. He lived in the state of Ohio.
Question. How long did you work with Blannerhassett?
Answer. Six weeks.
A
'512
Question. At what time was it that you saw xne there?
Answer. I do not recollect.
# .
Mr. Burr. — The counsel for the United States know, I pre-
sume, this circumstance, and have testimony to ascertain it.
Mn Hay. — ^We have not, as far as I am informed.
Mr. Burr. — If they have no objection, I will state when I
was on the island.
Mr. Hat said he had not.
Mr. Burr then said, that it was on the last day of August, and
the first of September, that he was on the island. .
Question. Were the boats in the stream, or close to the lan4j
when general Tupper wished them good luck?
Answer. In shore.
Mr. Anthony (one of the jury.) Did you see any powder?
Answer. No.
Mr. Hay. — ^Were you in the boats?
Answer. I was not.
Mr. Burr. — Where does general Tupper live?
Answer. In Marietta.
Qi^stion. Does he not belong to the state of Ohio?
Answer. Yes.
Question. When did you first know him?
Answer. Last Tall.
Question by Mr. Parker. Where did you live before you
went to work on the island?
Answer. About a mile from the island.
Mr. Burr then asked the clerk for the statement,, which he
had taken of AUbright's testimony, when it was submitted to the
eourt on a former occasion, on the motion for binding himself
in a higher bail. ,
The clerk handed him the copy, and the prisoner proceeded
with the examination.
Question. You said before, that the men who raised their
muskets against general Tupper, were not in earnest?
Answer. That was a piece of my opinion. I did not know
whether they were in earnest; as there was no quarrel among
them, and no firing afterwards.
Mr. Carrington, (one of the jury), reminded hjm of an ex-
pression of one of the party : *^ I had as lieve as not s/iooty* which
• shewed that they were in earnest.
• (
513
Mr. Burr.— I beg the court to call on the prosecutioDf for
the deposicibn of this witness, take;n before John G. Jackson*
Mr. Hat said, that he would not let gentlemen have access
to his port folio when they pleased; that he must be satisfied by
reasons assigned, or required by the order of the court, before
he produced it.
The Chief Justice was not satisfied, that the court had a
right to call for the affidavit.
Mr. WiCKHAM said it was obvious, that there were certain sus-
picions attached to the credibility of the witness; and that it was
their desire to compare his present testimony with his former
affidavit.
Mr. Hat observed, that Mr. Jackson might not have taken
down the testimony of the witness in his language, but couched
it in his own; hence there might be an apparent variation between
the present evidence and the affidavit; but that there was no real
variance: that the object of Mr. Jackson's taking his affidavit
was merely to ascertain, whether he were possessed of any useful
information, and to know whether he ought to be summoned as
a witness or not: that this was the object in taking all the tes-
timony which had been collected: that his affidavit was there-
fore general; but that the man, after finding that he was to be
summoned as a witness, had revolved the subject in his own
mind, and recollected many circumstances which had not before
occurred to him.
Mr. Burr. — We have a right to coerce this paper. If gentle-
men will not surrender it, I may at all events avail myself of
their refusal. My object is to prove such a diversity between
the statements of the witness at diffisrent times, as may destroy
all faith in his recollection.
]\Ir. Hat.— -Then, sir, although I might retain this paper,
the gendemen are welcome to make all the u^e of it they can.
Take it.
Mr. Burr then proceeded. When you said that all had guns,
did you mean to say, that ail in the circk^ or all of them together
without exception had arms P
Answer. There were seven or eight who had guns, and there
were other arms; but there might be more men than guns.
Question. How many were in the circle?
Answer. I did not count them.
Question. What kind of guns had they?
Answer. Rifles and short guns.
Question. Did you see any guns with baj^onets?
Vol. I. 3 T
514
Answer. I saw none.
Mr. Mac Rae. — When did you sec most armsf in the day,
or in the night ?
Answer. I saw more arms in the day ; but it was in the night
that I saw most armed men.
Mr. Parker (one of the jury.) Why did you think that all
of them had arms?
Answer. Because I was with them almost all night. In the
day, I saw some of them shooting at marks; and I saw other
arms at that time lying upon the beach.
Mr. WiCKRAM. — Did you see them all with arms at once?
Answer. No.
Question by the same. How many arms did you see in the
whole J or at any one time and place together?
Answer. I cannot tell.
Question by the same. Did you know the men who had arms f
Answer. I did not.
Question by the same. Did you know the names of the other
men?
Answer. No.
Question by the same. Would you know any of them if you
saw them?
Answer. I would not. They are all strangers to me.
Question by the same. How could you distinguish the anqs seen
in the day-time, from those seen late in the evening, or at night?
Answer. I cannot answer.
Question. How then are you certain that you did not see the
same arms at different times, in the hands of different persona?
To this question he made no answer.
Peter Taylor was then called, and
Mr. Hay asked him, whether he had not seen Mr. Burr on
the island?
He answered that he had not.
Mr. Burr.— If gentlemen have now done with the overt act,
or when they have done, I will thank them to inform me; for
then we shall have some considerations to offer to the court.
Mr. Hay. — We have other additional testimony to offer on
thb very point: the assemblage of men on the island.
Maurice P. Belknap was called, but did not answer.
William Love was then sworn*
Mr. Hay.— Were you on Blannerhasseti^s island ?
515
Answer. Yes: but I waa not there at the, time when colonel
Tyler's boats arrived there. I was then at Marietta ; and it waa
on Sunday that I went down in a skiff with two barrels of salt*
Question. How many boats were at the island?
Answer. Four.
Question. How many men?
Answer. I cannot tell you ; but I suppose about betwixt twen-
ty and twenty-five belonging to colonel Tyler's boats. When I
arrived on the island, Blannerhassett met me.
QuestioUf Did you see any arms?
Answer. I saw the men and rifles. I know that Mr. Blan-
nerhassett took away with him one brace of horse pistols, a
brace of pocket pistols and a dirk. Some fusees were put in
the boat f but not more than three or four, all belonging to him.
Question. And what arms had Tyler's men?
Answer. Pistols, dirks and rifles, they brought there; but all
were not armed with rifles. I know not whether they were ar-
med with different things. Some of the men liad guns, some
had dirks. Being, as how, Mr. Blannerhassett's servant, that is,
his groom, I went dowp the river with him.
Question. Did you see Taylor and Allbright there?
Answer. I knew Peter Taylor very welL I saw him there
the morning of the day I went away: and I saw Allbright also.
I saw Mr. Woodbridge too. ^
Question. What time did you set sail?
Answer, We were the last to embark; and we started between
twelve and one, as well as I can recollect. We parted with ge-
neral Tupper in the greatest friendship, so I understood ffom
others. I do not know that I saw him. I was the last man Who
went into the boat.
Question. Did you see the prisoner on the island?
Answer. I never saw colonel Burr on the island. I first saw
him at Natchez at>oat two and a half years ago.
Question. What took place after you left the island?
Answer. That night was very cold. The next morning, we
stopt and made fires. Mr. Blannerhassett and colonel T^ler
went ashore and called the company together ; and the best I
could make out was, I understood that the governor of Ohio,iiad
uttered state-warrants against Mr. Blannerhassett and Tyler;
and that they wanted to make their escape as fast as possible. I
went down with the party to Bayou Pierre, where
516
Mr. BirnR expressed a wish^ that the attentioil of the witness
should be at present^ confined to the transactions on the island. He
said that gentlemen ought to confine themselves to evidence of the
overt act; that they would submit the question to the court; that
it would be too late to discuss the question, whether the evidence
ought to be submitted to the jury, after it should have been all
heard.
Mr. Martin. — Gendemen had better confine themselves to
facts within the district of Virginia. When they travel beyoad
the district^ we shall have some important questions to bring
forward. We shall object to the production of such evidence.
Mr. Hay acquiesced for the present^ in this arrangement*
Cross-examined*
Mr. BunR. — Were not some of Mr. Blannerhassett's clothes
put up in the boats?
Answer. Yes.
Question. Did you not assist in putting those diings in the
boats?
Answer. Yes.
Question. Were not his books put in boxes and trunks?
Answer. None that 1 ever saw.
Question. How long had you lived with Blaanerhassett?
Answer. Ten or twelve days before we started.
Question. How many guns had the party?
Answer. I do not know: many of the young men that came
down with Tyler were out a gunning.
Question. Did you see any thing like military appearance?
Answer. The men were in a state of preparation to defend
themselves, because they expected people from the mouth of
Kenhawa, to attack Blannerhassett and the island. And to the
best of my opinion, they did not mean to be killed, without some
return of the shot. It was said at Marietta^ that the people of Ken-
hawa were to attack him; and I suppose they would have done
their best to defend themselves. I should be sorry if a man slap-
ped me on my face, without returning the blow.
Question. Was there no disturbance among the party on the
island?
•
Answer. None: I did not part with my friends in England
more comfortably than in partmg with the people on the island.
Question. Were they in fear of being attacked when they first
met together?
517
Answer. Not tiH Tyler's boats, came down. I do not recolkct
to have seen general Tupper there.
Mn Parker (one of the jury.) Did you ever see all the men
with arms?
Answer. I cannot say. When I got to the mouth of Cumber-
land river, I saw a chest of arms opened.
Mr. Mac Rae. — ^Were any chests of arms put into the boats
when you left the island?
Answer. Not that I know. They might or might not have
been put on board without my seeing them. Many things were
put into the boats before I got in.
Mr. Parker (one of the jury.) Had you no conversation with
Blannerhassett about the expedition?
Answer. Only that if I did not choose to go with him, he
would recommend me to some travelling gentleman as a servant;
or, if I went to the Washita, he would make roe a present of a
piece of land.
Mr. Burr.— -Did you see any arms but those belonging to
Blannerhassett?
Answer. I did not.
Question by the same. Did you see any guns presented?
Answer. I did not.
Question. Were they mostly young gentlemen who came in
the boats?
Answer. They looked like young gentlemen in that country.
Mr. Wirt. — ^Why did they go away in the night?
Answer. They were afraid of being taken by warrants issued
by the governor of Ohio.
Mr. Mac Rae. — Was the chest which you saw opened at the
mouth of Cumberland, the same as those that you saw go from
the island?
Answer. No.
Question. What did you think of this business?
Answer. I understood the object of the expedition was to settle
Washita lands.
Mr. Hat.— What kind of looking men were they?
Answer. They looked like gentlemen, such as live upon their
own property.
Question. Did they look like men used to work?
Answer. They did not
51S
C^ueftttDn. When did you see Mr. BlamierhasBeCt that iit{^t
down at the beach?
Answer* Late that night: it was a very cold night, raining and
freezing: it was generally expected that the people would cooae
and di^atroy Blaonerhassett's house.
Mr«> Parker (one of the juiynEien^) Did you see any buUeta
ruo? \
Answer. Yes: but I do not know how many. I was a servant
\ii the house, but could not mind my own business and other peo-
ple's too.
Dudley Woodbridge was next sworn.
Mr. HAY.-«^Were you on the island wh^n the boats left it^
Answer. I slept there that night.
Mr. Wirt. — What party do you mean?
Answer. I allude to the four boats with Comfort Tyler,
Mr. Smith and others.
.Q]uestion. Were you at the boats?
Answer. I passed them about dusk.
Question. Did you see any of the men?
Answer. I came to the island about dusk. I saw five or six
standing about the boats, i went directly up from the landing
to the house and saw fifteen or twenty men in one of the
rooms of Mr. Blannerhassett's house.
Question. Had they any arms in their hands when you saw
them?
Answer. I recollect to have seen no arms, but two pair of
pistols on the bureau of the room where I slept, which were
gone in the morning.
Mr. Hay. — Had you no communication with Mr. Burr or
Mr. Blannerhassett about this expedition? Will you inform us
what you know on this subject?
Answer. About the beginning of September or last of Au-
gust^ Mr. Blannerhassett, (with whom I had been connected
in commercial business for six or eight years past, under the
firm of Dudley Woodbridge and Company) called with colonel
Burr at our counting house at Marietta. Mr. Blannerhassett
observed that colonel Burr wished us to purchase a quantity
of provisions. I am not positive that Mr. Burr was present
when hejirst mentioned the subject, but I think he was. Co-
lonel Burr then went into an inquiry about the prices of dif-
ferent kinds of provisions, and the expense of boats best cal-
SIB
ciliated to cmrty {M'ovisioiis up and dcnrn the river. After his
making a number of inquiries and receiving such inforiDation
as I could give him, he left a memoranduin of such provisions
as he wanted, and of the boats which he wished to have built.
They were to be on the Schenectady model, such as are used
on the Mohawk river. The number ordered w0s fifteen; only
eleven were completed.
Question. What were their dtmensions?
Answer. Principally ten feet wide and forty feet long; five
were to be ten feet longer.
Question. What provisions were ordered?
Answer. Pork, flour, whiskey, bacon and kiln-dried meal;
but no article was purchased but pork, the prices in our market
being much higher than those limited in the memorandum* I
immediately made a contract with colonel Barker to build the
boats, and proceeded to make arrangements for purchasing
provisions. The boats were built up the Muskingum^ about 6c-
yen miles above Marietta, and were to be delivered on the 9th
of December. On that morning when they were to be brought
down (the 9th of December,) I saw six or eight armed men of
the militia going to take possession of the boats. I set off for
Blannerhassett's island, but met Mr. Blannerhassett, Comfort
Tyler, Mr. Smith and some young men from Belpre going up
to take down the boats. 1 informed them of the proceedings at
Marietta, and advised Mr. Blannerhassett not to go up. After
some consultation, he determined not to go up, and returned
to the island. I went back to Marietta to get some money and
papers, and returned that evening to the island, after getting
the papers.
Mr. HAY.—On what terms was the contract for the boats
made?
Answer. I made the contract for the boats with colonel Burr
and agreed to take a draft on New-York. When Mr. Blanner-
hassett handed me the draft, I expressed my dissatisfaction at
the long sight at which it was drawn (being ninety days,) ob*
serving, that it would not become due, until after the time in
which the boats and provisions were to be delivered, and that
I wished to run no hazard. Mr. Blannerhassett, with some
warmth, asked me if I doubted colonel Burr's honour? When
I repeated that I wished to run no risk, he said that he would
guarantee the draft and be answerable himself; and that in the
event of its not being paid, I might charge it to him. The draft
was drawn by Mr. Burr on Mr. Ogden of New-York. These
were the boats which Smith, Tyler, Blannerhassett and the
young men were going up to receive.
520
Mr. Hat.— Do you recollect where the boats were to be de-
livered by the contract.
Answer. Colonel Barker undertook to bring them, but there
was no contract to deliver them at any particular place*
Mr. Parker. Did you say that it was the 9th day of Decem-
ber that the boats were to go away?
Answer. The boats were to be delivered on the 9th, but those
that were at the island went away on the 10th. When colonel
Barker was bringing^them to Marietta, they were taken by ge-
neral Buel, as I understood, by order of the governor of Ohio.
Mr. Mac RAs.-^State what occurrences took place on the
island.
Answer. I arrived about dusk, and immediately inquired
about Mr. Blannerhassett. I stated to him that I was ready to
adjust our partnership-concerns, and that I had brought down
the money and papers for that purpose. We went up stairs; we
were two hours engaged in the business; after setdmg which, I
set off to go across the river home, and met Mr. Belknap at
the shore. He asked me to go back with him, that he had bu-
siness to do. I returned with him. We went both to bed at nine
o'clock at night, where I remained, and did not, as the witness
Peter Taylor states, go to the shore with the party when they
went oiF. His saying that I was there then is a misuke, as this
gentleman [Mr. Belknap] can prove.
Mr. Hay. — State to the court and jury, for whom the boats
were built. Was the contract made for the company?
Answer. Yes; it may be so considered; but it was not parti-
cularly specified. Mr. Blannerhassett first introduced the sub-
ject, and Mr. Burr then spoke. As to the use for which these
boats were intended, Mr. Blannerhassett made some commu-
nications to me respecting it. Shall I now state to the court
these communications?
[He was requested to proceed.]
Late in August or early in September, Mr. Blannerhassett
mentioned to me, that he had embarked in an enterprise with
colonel Burr; that general £aton and some others were en-
gaged in it; and that the prospects were flattering. Our first
conversation lasted but a few minutes. The next week I was
at the island, when he went into further particulars. From what
he stated, the inference I drew, was, that his object was Mexi-
co. He did not positively say so, but I inferred it from several
circumstances, particularly from a map of that country which
531
he shewed me. He spoke highly of the country; stated its ad-
vantages, wealth, fertility and healthiness. He asked me if I
had a dbpositiola to join? I evaded his question, but could not
forbear telling him that I preferred my situation tg an uncer-
tainty, (which was the same as declining it.) On the way up
to Marietta, he observed, that he did not wish me to say any
thing about his conversations on this subject. This is the sub-
stance of my testimony.
Mr. Hat. — Do you recollect any further detail of the plan
or object of the expedition?
Answer. I do nx>t.
Mr. Hat.— *What became of the boats apd the pork you
purchased?
Answer. The pork was taken and sold by order of the pre-
sident or government; it was sold, as I understood, by general
Buel. The boats, or a part of them, were afterwards fitted out
by the government for transports to convey troops from Ma*
rietta to St. Louis.
Colonel Burr. — Do you recollect that I told you, that I
wanted the description of boats used in the Mohawk river;
and were they not made for shoal water, and to go qp the
stream?
Answer* You did* The boats were to be calculated for shal-
low water.
Colonel BuRR.-*-You know Mr. Blannerhassett well. Was
it not ridiculous for him to be engaged in a military enter-
prise? 'How far can he distinguish a map from a horse? Ten
steps?
Answer. He is very near sighted. He cannot know you from
any of us, at the distance we are now from one another. He
knows nothing of military affairs. I never understood that he
was a military man.
Question by the same. What became of his library?
Answer. Part of it was carried down by Mrs. Blannerhas
sett; the residue was left behind, and has been since sold.
Question by the same. Do you recollect when I was at Mari-
etta? Was it not about the last of August or first of September?
Answer. I left Philadelphia about the middle of August,
and on my return, I saw you about the time you mention. I
have never heard that you have been there since.
Vol. I. 3 U
522
Question. What became of the draft on Mr. Ogdea for
two thousand dollars?
Answer. It was paid.
Question. What quantity of pork did you purchase for me?
Answer. About one hundred barrels.
Question. At what price?
Answer. It cost about twelve and was charged at thirteen
dollars per barrel.
Question. What became of it?
Answer. I stored it in Mr. Green's cellar, adjoining our
store: it was taken and sold by general Bufl, by order of the
government, as already mentioned; that is as I understood.
Question. Did you demand it of Mr. Green?
[The answer to this question was not heard.]
Question. To whom did you consider the pork as belong-
ing when seized? Whose loss was it? Yours or mine?
Answer. It may hereafter become a dispute.
Question. What were the boats estimated to be worth?
Answer. Colonel Barker's bill for the eleven boats, amount-
ed to twelve or thirteen hundred dollars.
Mr. Martin. — Were you at any time that evening on the
water's side, with Mr. or Mrs. Blannerhassett?
Answer. I was not.
Mr. Wirt. — You were asked, sir, about Mr. Blannerhas*
sett's military talents? Permit me to ask you what were his pe-
cuniary resources; what was the state of his money matters?
Answer. I believe they are not as great as was generally ima-
gined. I gave him six thousand dollars for one half of his pro-
fits of our business; he had about three thousand dollars in stock
in our company's concern. His fortune is much less than is ge-
nerally understood. He had not over five or«ix thousand dollars
in the hands of his agent at Philadelphia. His island and improve-
ments cost about forty or fifty thousand dollars. It would not
however, sell for near that sum, except to a person of the same
cast with Mr. Blannerhassett. After building his house, his pro-
perty exclusive of the island and five negroes amounted probably
to seventeen thousand dollars.
•
Question by Mr. Coleman (the juron) Explain again if you
please; in what did that property consist, s|nd how much money
could he command?
523
' Answer. He had nine thousand dollars in my hands in stock
and profits abeady stated, and about one thousand dollars on ano-
ther account, and the money in his agent's hands, besides his
island and negroes.
Question. Had he no foreign funds?
Answer. I think he had none. They were vested in American
stock some years before.
Question. What was the amount of property he had in these
funds?
Answer. I believe the property left him by his father amount-
ed to twenty thousand pounds sterling, which he vested in Bri-
tish three per cent, stock.
Mr. Wirt.-— Is he esteemed a man of vigorous talents?
Answer. He is; and a man of literature. But it watf mention-
ed among the people in the country, that he had every kind of
sense but common sense; at least he had the reputation of having
more of other than of common sense.
Question. What are his favourite pursuits?
Answer. Chemistry and music*
Mr. Hat. — ^Was colonel Burr to have returned to the island
Answer. I believe so; I expected him to have returned in about
two months, the time for the delivery of the boats.
Mr. H^T. — ^Had you received any money from Burr before
the presentation of the draft by Blannerhassett?
Answer. The draft was at so long a sight, that I objected to
letting the property out of my handb, till I was secured by the
responsibility of Mr. Blannerhassett. The balance over the two
thousand dollars (the amount of the draft on Ogden) was to be
paid by Mr. Burr on his return. He was to return in ^wo months
and to complete the payment when the property was delivered.
Mr. Hat. — Did Mr. Blannerhassett bring you the draft?
Answer. He did; but Burr made the contract with me.
Mr. Hat. — Do I understand you correctly in supposing that
Mr. Burr contracted to pay two thousand dollars in one drait,
and the balance on his return?
Answer. You do.
Mr. Lee. — How many acres of land are in the island?
Answer. Mr. Blannerhassett owned about one hundred and
eighty acres, which was about half of the island, and cost him
about five thousand dollars; but with the house and all, cost him
forty or fifty thousand dollars as already observed.
524
Mr. Hay — ^Was not one of the boats fitted up for Mr6. Han-
nerhassett and family?
Answer. One of the large boats was, Air* Blannerhassett had
taken a keelboat, belonging to the firm, up to colonel Barker^s
to be fitted up for his family; but by colonel Barker's advice, he
concluded to have one of the large boats prepared for that pur-
pose, on account of its superior accommodation. Thift was ac-
cordingly done.
Mr. Hay. — Had not the delivery of the boats been interrupt-
ed by the armed men, would they not have been delivered to
Blannerhassett?
Answer. I suppose they would have been delivered at Ma-
rietta, where he would have received them. /
Mr. Martin. — ^Was not the contract made by colonel Burr
,with your firm?
Answer. It was.
Question by the same. Do you understand that colonel Burr has
received any consideration for this sum of two thousand dollars
thus paid?
Answer. I do not know.
Mr. Wirt. — If the delivery of these boats had not been pre-
vented, would they not have been delivered to Blannerhassett or
Burr?
Answer. They would have been ddiveted to either* The
company contracted for them.
Mr. Ha Y.-— If delivered to Mr. Blannerhassett, Would you not
have considered yourself as delivering them to one of Burr's as-
sociates?
Answen I cannot say what t should have thought
Colonel Burr. — How came you to suppose yourself autho-
riztd to deliver the boats to Blannerhassett, since I gave the
draft?
Answer. I should ih any event have conridered myself justi-
fied in delivering the boats to him, as he guaranteed the pay-
ment for them, and he had property to a larger amount in my
hands; and besides these considerations, early in September
Blannerhassett had mentioned to me' his having joined colonel
Burr.
Mr. Baker. — Did you make any stay upon the beach, on the
night of their departure?
Answer. I did not; for I returned immediately to the house
with Mr. Belknap.
N
I
525
Mr, BoTTg. — Wert the people peaceable on that night?
Answer. Yes.
Question by the same. Did you hear any noise, like that of
war, the roaring of cannon or the rattling of small arms?
Answer. None.
Mr. Wirt. — Did you hear any alarm in the evening about
the militia from the Ohio side?
Answer. There was some alarm in the evening.
Mr. Parker. Did Mr. Burr leave the island, before Mr. Blan-
nerhassett communicated to you his being joined with him?
Answer. I do not precisely recollect the time of the communi-
cation; but I knew that Blannerhassett had connected himself
with him in the same enterprise, and I would therefore have de*
livered the boats to lum.
Mr. Coleman. Was Mr. Blann^rhassett's determination to go
away, the eifect of your having told him of the armed men go«
ing to take the boats?
Answer. That information might have operated with other
circumstances.
Mr. Parker. Did you see the president's proclamation on that
day?
Answer. No; that was Wednesday, and it came next Fri*
day by the mail. It was handed to me by the postmaster. I did
not hear of its being sent otherwise. I might have heard of it be-
fore but I am not absolutely certain.
Mr. Mac Rae. — Did you hear any thing of it before?
Answer. I do not recollect distinctly. I believe that the printer
at Marietta, who had been at Pittsburg, had brought some infor-
mfation about a proclamation; I have some idea that he might have
mentioned that he had seen it.
Mr. Hay. — Did you hear any thing of a state warrant?
Answer. No. I did hear that the legislature of the state of
Ohio were sitting with closed doors, in consequence of something
communicated by Mr. Graham, and that it was probable that
the boats would be stopped, and that they would suppress the
enterprise.
Mr. WicKHAM. — Did you understand, that Blannerhassett's
boats ot the people on the island would be taken?
Answer. I did not suppose that they would go to Virginia;
but that they would only stop the boats that were built pursuant
to his contract up the Muskingum.
526
Mr. Hay. — ^What was the cause of his precipitate flight? Did
you hear any particular observations from any of the party on the
island?
An9wer. Mr. Blannerhassett told me that he would go off in
three or four hours; and I heard Comfort Tyler say, that he
would jipt resist the constituted authorities, but that he would
not be stopped by a mob.
Mr. Wirt. — At the time he said so, was the legislature of
Ohio understood to be in session, with closed doors?
Answer. It was; and I saw the militia of Wood county as*
sembled the next day or the day after.
Mr. Burr. — ^Was there not some danger of being stopped by
the ice, if they had not gone off as soon as they did?
Answer. I thought so; and that it was also hazardous for Mrs.
Blannerhassett to go. Tyler was detained two days by Bbuiner-
hassett.
Mr. Mac RA£.^*Did Blannerhassett that night communicate
his apprehensions to you?
Answer. He did not.
Mr. Burr. — Were Tyler's party disorderly?
Answer. They were not.
Question. Did they do any mischief? Were they guilty of any
misconduct ?
Answer. None*
The court then adjourned till to-morrow at the usual hour.
Thursday, August 20th, 180/.
The court met at the usual hour, when a desultory discussion
took place, in which
Colonel Burr and his counsel insisted, that the counsel §6t
the prosecution should produce all the evidence which they had,
relative to the overt act, before they attempted to offer any col-
lateral testimony : and again reminded them, that as soon as all
their testimony on that point was introduced, they had certain
propositions to submit to the court.
The counsel for the prosecution said, that they had some
more evidence to introduce on this point, and
Simeon Poole was then sworn.
Mr. Hay. — Be so obliging, as to say what you know, with
respect to the men on Blannerhassett's island.
r
• Simeon Poole. I never was on the island at that time; but
Was opposite to it. I saw boats and men there, if I mistake not^
on the 10th of December. I arrived opposite the island about
dusk, at the distance of about one hundred and fifty, or two hun-
dred yards from it. I do not know how many boats there were.
I saw people walking about in the evening; and in the course of
the night, they kindled a fire, and I saw some persons by the
light, that appeared to be armed, as if they were sentinels.
Mr. Hay. — ^Why did you think they were so?
Answer. I don't know that they were ; but they appeared so
to my view. I don't know positively what they were, but they
appeared to have guns, and looked like sentinels. I did not go
over that night, nor did I offer to go. Boats were passing and
repassing during the night from the island to the mainland.
Question. To whom did these boats belong?
Answer. I do not know, but I presume to the island. There
were large boats at the landing, but these were small boats. I
did not speak to them. I stood as much undiscovered as possible,
as I was authorized by the governor of Ohio, to apprehend
Blannerhassett: I went for that purpose.
Mr. Hay.— Do you recollect any indications of arrangements
about a watch- word?
Answer. Yes. In the course of the evening, I saw that some
boats crossed; and when a particular word was given, I observed
there were some that did not cross. I heard others that were
hailed across and a word given. They would hail for a boat.
The people on the island would ask, ^^ What lx>at?'' If the an-
swer was, Ps boat, the boat immediately put off.
Mr. Parker. On what occasion was the watch word used?
Answer. When the peo{de On the Ohio side wanted to go
across, they would hail, or call for a boat; the people on the
island would ask, '^ What boat?" and if the answer were Ps boat,
the boat would immediately put off.
Cross-examined.
Mr. BvRR. — ^Till what hour did you stay out that night?
Answer. I imagine it was as late as ten o'clock.
Question. Was it not cold enough to render a fire pleasantt
Answer. It was.
Question. Is it not usual for boats to build fires on the bank,
when it is so cold?
552a
Answer. It is. There seemed to be a considerable number
of men on the island that evenings going up and down« to and
from the house. The witness further observed, that lanterns
were passing during the nighty between the house and boats, as
if there were busines^ between them; that he could not say, whe-
ther the persons whom he had called sentinels, were not merelj-
loitering around the fire ; that he thought it likely, that, if he too
had used the watch- word, the boats would have put off for him;
that he lived on the Ohio side ; that he could not distinguish
well, but he apprehended, that some of them had guns; but most
of the people were without guns.
Mr. Burr. — Do you not commonly hail boats when you wish
to cross the river?
' Answer. It is not common to give a word. There were seve*
ral boats hailed by people, who did not use that word; and these
people were not sent for; but there was no instance where the
Doat was not sent for the party hailing, where that waich^rsKrd
was used.
l^aurice P. Belknap was then sworn.
Mr. Hat. — ^Will you tell us, sir, what you saw on the island?
Mr. Belknap. On the evening of the 10th of December, I
was at the island of Mr. Blannerhassett. I arrived there be-
tween eight and nine oVlock in the evening. I hailed a boat, and
they asked my name. Having given it, a skiff was immediately
sent over with two of Blannerhassett's servants. Having crossed,
I met with Mr. Woodbridge, who returned to the house with me.
When I went into the house, I observed in the room, when I first
entered, a number of men, who, from the promiscuous view I
had of them, might have been about twenty.
Mr. Hay. — What were they doing?
Answer. The two or three I noticed near the door, had rifles^
and appeared to be cleaning them. These were all the arms I
saw: for I merely passed through the room where they were.
Near the place where I landed, there appeared to be two or three
boats, and people about them. It was a dark evening, and the
liffhts in the boats wa8 the only circumstance which made me
notice them.
Mr. BuRR.-*-Did you give a watch-word when they brought
you over?
Answer. I gave no watch-word, I only gave my name ; but
they brought me over.
Edmund P. Dana was next sworn.
Mr. Dana. I never saw colonel Burr on the island.
529
Mr. Hat.-— Will you state what you know about their num*
* ber and arms?
Answer* On the evening of the lOth of December, I under-
stood that the boats were to start with Comfort Tyler and his
men down the river. Two other young men and myself were
determined to cross over from Belpre, where I live, to the
island. We went down to the landing opposite the island about
dusk, took a skiflf and landed at the upper part of the landing.
We then went up to the house. Tyler^s boats lay below our own
about seven or eight rods. I heard some person talking on
board, but it was dark, and I could not distinguish any one. We
went into the hall, a large room, where there were a number of
men. I remained but a short time and did not count them. I
cannot say how many there were, but I should judge there were
about fifteen or sixteen. One of them was running some bullets;
and there was nothing but hub»bub and confusion about the large
fire. I was then introduced into a chamber, where there were
colonel Tyler, Blannerhassett, Mr. Smith of New- York as
they said, and three or four other gentlemen. I was introduced
to Mr. Smith and Doctor M'Cassley (or M^Castle) who had
his lady, if I mistake not, there. I had been introduced to
colonel Tyler the day before.
Mr. Randolph* — ^Were you a perfect stranger to the people
in the hall?
Answer. I was*
Question by the same. Was there any alarm on your going inf
Answer. They did not appear to be alarmed.
Mr. Coleman (one of the jury)' addressed the court. Is it
proper to ask any questions about th^^cpnversations which took
place with those gentlemen?
Chief Justice* — ^It is left to the consent of the accused,
Mr. Burr. — If any of the jury think proper, I taive no ob-
jection. The inquiry was not pressed.
Before the examination of Mr. Belknap and Mr. Dana, an in-
teresting and animated discussion took place at the bar.
Colonel Burr and his counsel objected strongly to the intror
duction of collateral evidence, and insisted strenuou^y, that the
counsel for the prosecution should adduce, without further delay,
an the testimony which they had, relating to any overt acts sd-
leged to have been committed; that they had already submitted
to too much irrelevant evidence ; that it could not be denied,
that colonel Burr was at a great distance, in the state of Ken-
tucky, when these acts were alleged to have been committed
on Blannerhassett's island; and that the relevancy or irrele>
Vol. I. 3 X
530
vancy of the collateral proof offered, depended entirely on the
existence of those acts. They insisted, that notwithstanding the
numerous efforts and prejudices which had been so artfully and
zealously excited, and so industriously spread throughout the
country, there had not been any act of war, tumult or insurrec-
tion, nor even the semblance of an overt act; that they had a
right to have the opinion of the court on the subject, and would
insist on exercising it, as soon as the testimony, relating to die
overt acts of this pretended war, was all introduced; and if gen-
demen had any more such, they insisted on its immediate pro-
duction, or that they would proceed to make their intended ap-
plication to the court.
The coimsel for the prosecution opposed this mode of pro->
ceeding. They contended, that it was unusual, irregular and im-
proper; that the whole evidence should be submitted to the jury,
whose province it was to decide whether, according to the expo-
sition of the law by the court, there had been war or not;
that the counsel for the accused might, when the whole should
have been laid before the court, move the court to instruct the
jury on the law, or make such other motions or proposidons, as
they might deem proper; that to decide whether overt acts had
been committed or not, was an inquiry of fact, not of law;
that though the court had a right to expound the law, and ex-
plain what in law constituted an overt act, yet it could not
stop the prosecution, and say to the jury, that no overt act was
committed; « that it was evident that tlie object of attempting
thus to arrest the inquiry, was to prevent the public from seeing
and knowing what had been done, and which ought to be known;
that the question was not, where the accused was when the trea-
son was committed, but whether he procured it or had a part in
it? and that as the objection of the accused to the evidence of-
fered by the prosecution was irregular and improper, it ought to
be disregarded by the court.
It was admitted that colonel Burr was in Kentucky at the time
when the acts charged in the indictment were committed. It was
stated that several witnesses were present ready to prove it.
After some further desultory remarks at the bar.
The Chief Justice said, that there was' no doubt that the
court must hear the objections to the admissibility of the evi-
dence; that it was a rights and gentlemen might insist <xi it: but
he suggested the propriety of postponing dieir motion.
Mr. Hay admitted their right to object to the introduction of
evidence; but coitfended, that the course they now adopted was
in-egular. He stated that they had some other witnesses to ex-
amine on the same point, whom they wished to introduce.
531
As soon as Messrs. Belknap and Dana were examined,
Mr. BoTTS moved the court to direct the marshal to make
payment daily of their allowance to about twenty witnesses,
summoned for the accused, most of whom were so poor, that
they could not subsist without it. He had hoped the marshal
would have paid them without this application. Colonel Burr
thought them material, and summoned them frbm the best in-
formation he could obtain; and wh^ the United States even
imprisoned witnesses to compel their attendance, those of the
accused ought at least to be supplied with the means of sub-
sistence.
The marshal said that as the number of witnesses was so
great, and many of them were said to know nothing of the sub-
ject in controversy, he was cautioned by the attorney for the
United States, not to pay diem till their materiality was ascer-
tained, or till the court ordered him.
Mr. Hat said that the expenses were so enormous, that they
would be felt by the national treasury, though it was fulL This
justified the caution alluded to; and the laws contemplated to pay
the witnesses as soon as they gave their evidence.
Colonel Burr said, that when the attorney cautioned the mar-
shal, it was supposed that he had summoned between two and
three hundred witnesses, whereas the truth was, that they did
not exceed twenty; that they were material; that someof them were
summoned to repel what might be said by the witnesses for the
United States; that the United States had many advantages in
commanding the attendance of their witnesses, which he had
not; that he would not acquiesce in the establishment of a prin-
ciple that might prove injurious to odiers; that the wimesses
ought to be paid, and he hoped that there would be no more
difficulty made on the subject.
After some more desultory observations, as the wimesses were
stated and considered to be material, the court directed the pay-
ment to be made by the marshal.
Mr. WiCKHAM then renewed the subject of objecting, to the
evidence; and again urged the gentlemen who prosecuted, to ad-
duce, if they could, any more testimony in support of what they
deemed the overt acts.
Mr. Hat objected to their course of proceeding, but added,
that he had only one or two more witnesses on that point, who
were then absent, and if gendemen were determined to make
their motion, they might proceed.
532
Mr. WiCKHAM then addressed the court.
May it please the court: The counsel for the prosecution
having gone through their evidence relating directly to the overt
act charged in the indictment, and being u»out to introduce col-
lateral testimony of acts done beyond the limits of the jurisdic-
tion of this court, and it not odly appearing from the proofs, but
being distinctly admitted, that the accuseo, at the period when
war is said to have been Tevied against the United States, was
hundreds pf miles distant frx>m the scene of action, it becomes
the duty of his counsel, to object to the introduction of any
such testimony; as according to our view of the law on this sub-
ject, it is wholly irrelevant and inadmissible.
It is ndt without reluctance that this measure is resorted to.
Our client is willing and desirous, that at a proper time, and on a
fit occasion, the real nature of the transactions which have been
magnified into the crime of treason, should be fully disclosed: and
unless he be greatly mistaken, it is now in his power to adduce
strong and conclusive testimony in direct opposition to that which
has been relied on in behalf of the prosecution. But if we may
calculate from the time that has been already consumed in the ex-
' amination of the smallnumber of witnesses that have yet been in-
troduced, out of about one hundred and forty, that have been
summoned on the part of the United States, it is hardly possible,
that an opportunity will be afforded him of calling a single wit-
ness before this jury. Weeks, perhaps months, will pass away,
before the evidence for the United States is closed-; and at this
unfavourable season, nothing is more likely than that the health
of some one, and perhaps more of the jury will be so far affected
by the climate and confinement, as to render it impossible to
proceed with the trial. Should such an event happen, the cause
must lie over, and our client, innocent, as we have a right to
suppose him, may be subjected to a prolongation of that confine-
ment which is in itself a severe punishment. The jury too are
placed under very unpleasant restraints, and it would be an act
of injustice to them, as well as him, to acquiesce in a course of
i)roceeding, which would draw out the trial to an immeasurable
ength; and which we conceive to be neither conformable to the
rules of law, nor consistent with justice.
Hitherto the counsel for the United States have taken frequent
occasions to declare their belief of the guilt of the accused. On
the motion I am about to make, arguments drawn from this topic
will have no application. The question will turn on abstract
principles, which will neither be changed nor affected by his in-
nocence or guilt. The foundation on which this prosecution
must rest, and which I should hope had not been seen or at-
tended to by the counsel for the United States themselves, will
533
be exposed to view; and it will be for them to determine, whe-
ther it shall be abandoned, or maintained by doctrines incom-
patible *with our republican institutions, and utterly inconsistent
with every idea of civil liberty.
In combating these doctrines, we shall, so far as we are abk,
support the cause, not of our client alone, but of every citizen
of die United States, and of future generations; for as to the es-
fablishment of the principle, it ought not to be considered as his
cause alone, but as the cause of every member of the community
and of posterity.
The first position I shall lay down, is, that no person can be
con\ncted of treason in levying war, who was not personally pre-
sent at the commission of the act, which is charged in the indict*
ment as constituting the offence.
The 3d section of the 3d article of the constitution of the Unit-
ed States, declaring that ^^ treason shall consist only in leoving
war against them, or in adhering to their enemies, giving them
aid and comfort'' and that ^^ no person shall be convicted, unless
on the testimony of two witnesses to the same overt act," there
can be no doubt, if the words be construed according to their
natural import, that it is necessary, in order to fix the guilt of
the accused, to prove by two witnesses, that he committed an
act of open hostility to the government, at the place charged in
the indictment.
But artificial rules of construction, drawn from the common
law and the usages of courts in construing statutes, are resorted
to in order to prove that these words of the constitution are to
be construed, not according to their natural import, but that an
artificial meaning, drawn from the statute and common law of
England, is to be affixed to them, totally different.
In the first place, I deny that any such rules of construction,
however just they may be when applied to a statute, can be pro-
perly used, with reference to the constitution of the United
States.
This instrument is a new and original compact between the peo-
ple of the United States, embracing their, public concerns in the
most extensive sense; and is to be construed, not by the rules of
art belonging to a particular science or profession, but, like a
treaty or national compact, in which the words are to be taken
according to their natural import, unless such a construction
would lead to a plain absurdity, wMch cannot be pretended in the
present instance.
It being new and original and having no reference to any
former act or instrument, forbids a resort to any other rules
of construction than such as are fumbhed by the constitution
itself, or the nature of the subject. If I be correct in this, there
is an end to all further inquiry. It is not necessary to resort to
534
artificial rules of construction* The words of the constitution,
^' laying (or making) war,'' are plain and require no nlc^ inter-
pretation : and with respect to the other clause, ^^ adhering to their
enemies," &c. it is a matter of no consequence here what may
be its correct exposition, for the commonwealth has no enemies.
The counsel for the United States will not contend that the
words, used in their natural sense, can embrace the case of a per*
son who never himself committed an act of hostility against
the United States, and was not even present when one was com*
milted.
But they will insist, that these words in the constitution are to
have an artificial meaning, such as they contend has been pven
them in the courts in England; and that in that country, aU per-
sons aiding and abetting others in the act of levying war agauist
the government, are guilty of treason, though not personally pre-
sent.
I shall contend ^r^r, That, notwithstanding some dicta of law-
writers to the contrary, no such rule has practically obtained in
that country; and that the decisions, entided to any respect, lead
to an inference direcdy contrary.
And secondly. That if I be wrong in this, the principle adopt-
ed there cannot apply to treasons under the constitution of me
United States.
I shall admit that lord Coke and, after him, other writers who
are deservedly revered, have laid down as a general position, that
there are no accessories in treason either before or after the fact,
but that all are principals.
But no adjudications, in the case of an accomplice in the na»
ture of an accessory before the fact, bear them out in it, except
that of sir Nicholas Throgmorton, reported 1 State Trials p. 63
l6 78; and the conduct of the court on that occasion was so obvi-
ously contrary, not only to the rules of law and justice, but even
to those of decency, that I persuade myself the counsel on the
other side will not rely on it as an authority.
A very faithful and correct account of it is given by jiidgeTucker
in his appendix to ^th Blackstone^s Commentaries ^ note a. p* 44.
He contests the doctrine advanced at this day, ^^ that whatever
will make a man an accessory in felon)&, will make him a principal
in treason," He shews that it is derived from three orimnal cases
only; and then proceeds thus, ^^ This doctrine appears to have slept
from the year 1488, to theyear 1554, when it was revived upon
the trial of sir Nicholas Throgmorton, in the first year of the
reign of queen Mary. He was indicted first, for conspiring and
imagining the death of the queen: 2. For levying war against her
within the realm: 3. For adhering to her enemies within the
realm, giving them aid and comfort: 4. For conspiring and in-
tending to depose the queen: 5. For traitorously devising and
concluding to take the Tower of London. Upon his trial, Stan-
'.*-
"k
535
ford, author of the Pleas of the Crown, and Dyer, afterwardsi
chief justice, assisted in the prosecution, as queen's sergeants.
Bromley, chief justice of England, who appears to have been
another Jefferies, and sir Nicholas Hare, master of the rolls, a fit
associate for him, and sir Roger Cholmley, one of the same
stamp, were among the number of his judges, and managed the
trial. At thb trial, the doctrine of constructive treason in its fullest
extent was insisted on by the counsel for the prosecution, and
sanctioned by the judges, notwithstanding the prisoner remind-
ed the court of a statute, passed not six months before, where-
by it was declared, that no offence made treason by act of par-
liament should thereafter be held to be treason, except such as
were so declared by the statute 25 Edw. 3. which statute he de-
sired might be read to the jury. The court told him there should
be no books brought at his request; they knew the law suffi-
ciently without book; it was not their business to provide books
for him, neither did they sit there to be taught by him. If any
thing more be requisite to shew the respect due to the decisions
of the court, it may not be amiss to mention, that they ordered
a person, whom the prisoner called as a witness, on his behalf,
out of court. That one Vaughan, who was under sentence of
death, and whose execution was respited that he might be pre-
sent at this trial, was admitted as an evidence against him.
That the confessions of one Winter and one Crofts, then alive
and in custody, were read in evidence against him, the witnes-
ses themselves not being produced in court. These words
of the statute 25 Edw. 3. ^ and be thereof attainted of open
* deed by people of their condition^ which sir Edward Coke^
and every other writer on criminal law from his time to this,
expounds to mean, by verdict of a jury of their peers ^ were thus
expounded by the chief justice addressing himself to the pri-
soner: ^ You deceive yourself, and mistake these words by peo»
pie of their condition; for thereby the law doth understand the
discovering of your treasons. As for example, Wyatt and
other rebels, attainted for dieir great treasons, already declare
you to be his and their adherent,* in as much as divers and sun-
dry times you had conference with him and them about the
treason; so as Wyatt is now one of your condition, who as the
world knoweth, hath committed an open, traitorous fact.' The
word *• enemies* was likewise expounded to mean /rai/or^ with-
in the statute. And lastly, when the jury brought in a verdict of
acquittal (for there was no evidence against the prisoner on
either point) the court immediately committed them all to pri-
son, and some of them were fined two thousand pounds, some
•ne thousand pounds, and the lowest paid three score pounds a-
piece, before they were discharged from their imprisonment.
536
Stanford, who was active in the prosecution, was afterwards
promoted to the bench, and published his Pleas of the Crown,
in 1560, six years after, in which he has laid down the doctrine
at large, as it is received at this day, but cites the case 3 H. 7.
10. before mentioned in s^ipport of it. Abington's case was re-
solved, when sir Edward Coke was attorney-general, in the
fourth year of James the first, when the spirit of persecution
was at its height, from the terrors of the powder-plot, in the
guilt of which the prisoner was involved, by receiving one Gar-
nett, a Jesuit, knowing him to be guilty of the powder treasom.
It is not improbable however,- that this doctrine was aided in its
progress, by the statutes which passed in the reign of Hen* 5.
and Hen. 6. and the numerous acts of attainder, passed in
those of Edw. 4. and Rich. 3. and the multiplied treasons
created in the reign of Hen. 8. and his successors, where-
by the aiders, counsellors, consentors, abettors, maintainers,
procurers, comforters, receivers, relievers, and so forth, of
persons guilty of any such treasons, are repeatedly declared
to be principsd traitors also. These parliamentary declarations
and statutes must, I conceive, have had a strong influence over
the judges, in those days, when parliaments and courts were
equally devoted to the will of the ruling monarch.
^* I should not have taken the trouble of this scrutiny, had
not the same judge [judge Chase] who declared, that the Eng-
lish authorities were not to be regarded as precedents in our
courts, on the same occasion, declared the law to be, ^ that in
treason all the partictpes criminis^ are principals; that there are
no accessories in that crime, and that every act^ which in case
of felony would render a man an accessoryj will in the case
of treason make him a principal.' If the learned judge rejects
the authority of the English precedents, where can the law be
found? And if he relies upon those precedents, where can the
reason of the law be found?"
In that case it was perfectly clear, that the prisoner was not
present at the only scene of action. I can find no case, where a
person who was not present at the scene of action, or where a
procurer or aider of treason before the fact jWSis convicted or even
brought to trialy except the case of Mary Speke. In Tremaine's
J^ieas of the Crown^ p. 3. I find an indictment against her for
treason, in aiding the duke of Monmouth and others in levy-
ing war, with provisions; neither before nor cfier^ but at the
time when the treason was committed by the principals. She
was not an accessory in fact, but an ^' aider^^ in the commission
of the treason, it comes within the definition of ^^ an aider or
procurer," and belongs to the class of accessories before the
fact. But I cannot learn how the case was decided; whether ac-
537
cording to common sense or justice, or in what manner deter-
mined, neither history, nor any report of the decision of the
court (as far as I have been able to discover) informs us* It was
in the fourth year of the reign of James 2d, when the spirit of
persecution was very high, and was probably one of the cases
decided by the execrable Jeiferies, on the occasion of Mon-
mouth's rebellion. Whether he carried this doctrine to the ut-
most length or not, I cannot say; but I presiune the counsel for
the United States would not rely on it as a precedent even
if it applied*
After a diligent and painful research, I have been unable to
find any other decisions that g9 to this point, with respect to ac-
complices in the nature of accessories before the fact, to treason
in ^^ levying war*" I cannot find, and I am confident the gentle-
men cannot shew any solemn decision subjecting the procur-
er, before the fact, to the pains and penalties of treason* The
other great branch of treasons, that strikes directly at the exis-
tence of the government, that of compassing the death of the
king, does not admit of an accessory before the fact, as distin-
guished from a principal. We all know that that crime consists
in the intention. The agreement to do the act constitutes the
crime itself. It is impossible that there can be an aider or pro-
curer in this case, because every person concerned is party to
the agreement^ and therefore, from the nature of things, is a
principal. It will not be contended by the counsel on the other
side, diat an agreement to levy war amounts to levying war.
They themselves admit that they who conspire to levy war
only become traitors by relation when the war is actually le-
vied. With respect to treason for compassing the death of the
king, where the mere agreement to do the act does itself con-
stitute the crime, I thank God, that in this country, we have no
subject to which it applies; and our constitution forbids that the
intention alone, which is so liable to be misunderstood and mis-
represented, should in any case be construed into treason.
In the lesser treasons, such as counterfeiting the coin, I have
not met with any instance of a conviction of an accomplice be-
fore the fact.
It is admitted that there are to be found in England a num-
ber of convictions of receivers of traitors and other aiders in
the nature of accessories after the fact; and I admit the cor-
rectness of the inference, that if these decisions were proper to
be considered as precedents, the principle would apply to aiders
and abettors before the fact. But it becomes proper before they
ought to be regarded as precedents worthy of imitation, to in-
quire in what times and under what circumstances, those cases
were decided. I have not found anv of them since the revolu-
Vol. I. ."> Y
- 538
tion of 1688, when the principles of civil liberty and enlighten-
ed jurisprudence began lo be better understood than bfeiore; and
most of those previous to that event, were decided by Jefferies:
such as the case of lady Lisle, reported in Af State Trials^p. 106*
John Teurnley's case, ibid. p. 131. and Elizabeth Gaunt's case,
p. 142. They were all cases of receivers of traitors or accessories
after the fact. With respect to the former, which served as a pro-
totype of the others, I trust there is only one opinion among us. I
will only refer the court to Mr. Hume's account of this atrocious
lethal murder, and of the case of £• Gaunt, in his 8th voL of the
History of England^ p. 2ZZ. (octavo edition); which is as follows:
<^ Of all the executions during this dismal period, the roost
i*emarkable were those of Mrs* Gaunt and lady Li^le^ who had
been accused of harbouring traitors. Mrs. Gaunt was an ana-
baptist, noted for her beneficence, which she extended to per-
sons of all professions and persuasions. One of the rebels, know-
ing her humane disposition, had recourse to her in distress,
and was concealed by her. Hearing of the proclamation, which
offered an indemnity and rewards to such as discovered crimi-
nals, he betrayed his benefactress, and bore evidence against hen
He received a pardon as a recompense for his treachery; she
was burnt alive for her charity.
^^ Lady Lisle was widow of one of the regicides, who had en*
joyed great favour and authority under Cromwell, and who hav-
ing fled, after the restoration, to Swisserland, was there assassi-
nated by three Irish ruffians, who hoped to make their fortune
by thi^ piece of service. His widow was now prosecuted for har-
bouring two rebels, the day after the batde of Sedgemoor; and
Jcfferies pushed on the trial with an unrelenting violence. In
vain did the aged prisoner plead, that these crimmals had been
put into no proclamation; had been convicted by no verdict; nor
could any man be denominated a traitor, till the sentence of some
legal court was passed upon him: that it appeared nibt by any
proof, that she was so much as acquainted with the guilt of the
persons, or had heard of their joining the rebellion of Mon-
mouth: that though she might be obnoxious on account of her
family, it was well known that her heart was ever loyal, and
that no person in England had shed more tears for that tragrical
event, in which her husband had unfortunately borne too great
a share: and that the same principles which she herself had
ever embraced, she had carefully instilled into her son, and had
at that very time, sent him to fight against those rebels whom
she was now accused of harbouring. Though these arguments
did not move Jefferies, they had influence on the jurj'. Twice
they »eemed inclined to bring in a favourable verdict. They
were as often sent back with menaces and reproaches, and at
539
last were constrained to give sentence agdnst the prisoner* Not-
vrithstaoding all applications for pardon, the cruel sentence was
executed. The king said that he had given JeiTeries a promise
not to pardon her. An excuse which could serve only to aggra*
vate the blame against himself/'
»
These cases and decisions (Throgmorton's and lady Lisle's),
I admit, are precedents, if they choose to rely on them, and they
can find no other.
Since the revolution of 1688, though the doctrine has been ad-
mitted by writers to be true, yet all the decisions of the court,
that I can find, which bear upon the subject, lead to a directly op-
posite conclusion. The most numerous class of cases relate to con-
victions which took place before judges of a very different stamp,
whose decisions are entided to the highest respect. The occasion
on which there was the greatest number of prosecutions for treason,
in levying war, was the rebellion in the year 1745; and no one can
doubt the acciu'ucy of the reports of the decisions at that period,
' or the ability of the judges who presided, and the counsel who
conducted the prosecutions. We all know the history of those
. times, and what cruelties the late duke of Cumberland committed
after the victory of Culloden* His name is held in general de-
testation by the people of that part of the country from parent to
child. Yet there was not a single instance of a conviction for
assisting or harbouring the traitors. History mentions the won-
derful escape of the pretender, and his concealment and protec-
tion, by the unexampled courage and fidelity of Miss Macdonald.
Yet no attempt was made to convict her of treason, or others
who aided him, or even to prosecute them. Though he was a
long time concealed, and in eluding the vigilance of his pursuers
was favoured by many, yet it is remarkable, that no person who
assisted him in his distress, was attempted to be punished. But let
us not draw any inference from the silence and inactivity of the
officers of the crown, but advert to what was actually done.
The fact of the pretender's raising an army in Scotland, with
a view of seating himself on the throne of Great-Britain; his
giving batde to the king's troops, defeating them several times,
and marching into the heart of England, could have been proved
by thousands of witnesses. If the doctrine, that persons absent
and not in arms might be charged with the overt acts of others
with whom they were connected, were admitted, nothing would
have been more simple and easy, than the mode of conducting
the prosecutions on this occasion. The prosecutors would have
had nothing to do, but to charge an overt act in some county
through which the pretender's army had passed, no matter which;
to prove the fact of his having done so (a fact as notorious, as
thai the places themselves were in existence) and then to prove,
540
that the person charged, was connected l^ith the rebellion, and
assented to it; whether he had ever been in the county where the
act was charged upon him, or had even raised a finger in oppo-
sition to the government or not, was a matter of no importance.
His conviction followed as a necessary consequence.
But did the courts and prosecutors proceed in this manner?
A reference to their decisions will prove, diat the courts pro-
ceeded on the contrary doctrine; and that die judges, as well as
the counsel for the prosecutions, thought that they could only be
sustained by bringing the overt act home to the person himself,
by establishing the fact, that the accused was present^ and pcrso^
nallif committed the overt acts charged in the indictment.
Justice Foster, in his Crown Law^ p. 3 to 6, gives die form
of the indictment, and says that ^ it was used against all the re-
bels who were tried in Surry (except one, for reasons explained);
** that the overt acts were laid in different counties of England or
Scotland^ as the cases respectively reauired; that the fact of taking
and possessing the city and castle of Carlisle^ was not charged on
those who were not concerned in that part of the rebellion.^
According to the doctrine of the gentlemen on the other side,
what necessity was there of varying the overt acts from one
county to another? Why charge them in different counties, if
any one might be charged with the acts of others wherever com-
mitted? For what purpose was the act of taking Carlisle not
charged on those who were not concerned in that part of the
rebeUion? If this doctrine be correct, it was no matter whether
they were present or absent; if they were concerned, they were
all, in the eye of the law, present on the spot. Was not judge
Foster talking nonsense, when he stated different modes of
charging the overt acts, if their doctrine be correct? One mode
would have done for all whether they were present or absent.
But this is not a loose expression put down incautiously by
judge Foster, but an opinion on which the court acted.
In Deacon's case, Foster^ s Crown Law^p. 9, 10. it was insisted
for the prisoner, that as the overt acts were laid in Cumberland,
evidence of an overt act in Manchester should not be given ;
but the court determined, ^^ that it was indeed necessary^ that some
overt act latd^ be proved on the prisoner in Cumberland; but that
, being done^ acts of treason, tending to prove the overt acts laid,
though done elsewhere, might be given in evidence." It is
evident from the expressions^^ proved on the prisoner^ and ^that
being done J'* as well as the whole context, that the court required
proof oi an act in Cumberland, and that the prisoner himself had
in person committed the overt act charged^ and that no evidence
short of this was sufficient.
If gentlemen doubt the propriety of this construction, there is
another authority in the same book, page 22, which confirms it.
541
In sir John Weddetbourn's case, the overt acts were laid at
Aberdeen; it was proved by two witnesses, that he was with the
rebek at Aberdeen; and then proof was offered of an overt act
elsewhere, which was objected to by his counsel ; but ^^ this ob-
jection was overruled, upon the reasons before given, in the case
of Deacon."
What necessity was there to prove that he was with the rebels
at Aberdeen? If their doctrine be law, proof that the reheh had
hetn there^ was sufficient; and that fact being as well known as
that there had been a rebellion, no evidence of any avert act^ of
any sort^ at any place^ done by the accused, was wanting ; proof of
any act however secret jZnd however remote from the scene ofaction^
was all that was requisite.
In the trial of lord Balmerino, reported in 9th State Trials^
p. 605. one of the overt acts charged was his marching into, and
taking possession of the city of Carlisle, and holding it for the
pretender* He denied, that in point of fact, he was present at
the taking of the city. This objection was met by the counsel
for the crown, among whom* was the late lord Mansfield, by a
reference to the testimony; proving that he marched in with the
rebels after the surrender, and to die other charges in the indict-
ment which had been clearly proved; so that it was unimpor-
tant whether this was established or not. Neither lord Mansfield,
sir John Strange nor any of the other great lawyers who were
counsel for the crown, thought of the objection now urged by the
gendemen on the other side. They exerted themselves mereljr
to shew, that the day was immaterial; and that the subsequent
entry of the prisoner into the city, and remaining in it with the
rebds, was sufficient for his conviction, exclusive of the other
acts proved. Had they understood the law to be, as the counsel
for this prosecution understand it, they would have at once replied,
" Whether theprisoner were personally present at Carlisle or not^ is
of no consequence; others with whom he was connected were there ^
and did the act charged on him^ and as all are principals in treason ^
their acts are hisJ^ But they urged no such doctrine; it was re-
served for the ingenuity c^ ftiture ages to discover it. It is evi-
dent that they thought it necessary to prove that he was present
and an actor in the scene where the overt act was laid; or that
this charge in the indictment must be abandoned. This has uni-
formly been the rule, nor can any instance be shewn, where a
party who was not present himself where the act was done,
but a mere procurer, has been subjected to the punishment of
treason.
In opposition to these decisions,- (given at a time when rtiere
was certainly no partiality in favour of the accused, but as much
learning and virtue on the bench, and as great a portion of ta-
t^nts at the bar as in any period of English history, and which
542
are not opposed by a single case since the revolution, when
the independence of the judiciary, and the principles of a free
government were first established and confirmed) the counsel fcM-
the prosecution may quote lord Coke, Stanford and other e mi*'
nent law writers, since the age of Henry the 8th. If this be so,
it proves nothings except that the theory was one way, and the
practice the other; and as this is a practical question, we ought
to abide by the precedents established by the courts on this law,
as they occurred, and not the dicta of men however eminent,
who appear to have written without due consideration, and to
have done little more than to copy verbatim the speculative opi-
nions of their predecessors.
For the history of this opinion, I beg leave to refer to judge
Tucker's very able treatise on the subject. He has traced it to
its source, and shewn how error is begotten by error. See Tuck-
er's Blackatoney 4/A. voL appendix^ note a. p. 40 to 47. Alter
having shewn the important effect of the word *^ ordy^ in the
constitution, *^ as the strongest term of limitation and restric-
tion in our language, that its obvious meaning is, that ^ treason
shall consist in these two cases^^ (levying war and adhering to
their enemies, &c.) and no other cases zvhatever^ he proceeds:
*^ And here it may not be improper to repeat the remark, that
this definition creates^ as well as limits^ an offence which had no
previous existence ; whereas the statute 25 Edivard 3. did not
create, but only defined an offence already known to the common
law. ^That statute, said Stanford, (afterwards chief justice of the
common pleas), is but a declaration of certain treasons, which
teere treasons before at the common law.' Will any man pre-
sume to advance, that there is any treason against the United
States by the common lawf that a limited federal republic of
yesterday hath already appropriated to itself all the foul corrup-
tions of despotism, collected from time immemorial. To infer
that the courts of the United States, are left to range at large,
in the boundless field of construction^ in search of other cases of
treason against the United States, seems, to my apprehension, to
be a doctrine equally unfounded, awful, and dangerous.
*^ If, then, we are not at liberty to reject this important word
> only^ we must assign to it some determinate signification,
and if that signification be that which I have ascribed to it, to
wit, ^ these cases and no other whatsoever^ its necessary opera-
tion and effect must be, to cut up all constructive treasonsy root
and branch* If a single scion be left, it will be the parent of ten
thottsand others, shedding like the ^ Buonas Upas^ their baneful
influence far and -wide, poisoning and desolating the whole re*
gion Where they are permitted to take root. Faction and fac^
tiotts men are not confined to any one par^r in a republic : and
^
543
whei^ such men have the command of the purse, the sword and \
the scales of justice, the lives of their opponents will not weigh a '
feather in competition with their own advancement, or that of
their party. This, the framers of the constitution must have con«
sidered, and therefore endeavoured by the strongest terms, and
the strictest limitation, to restrain within the narrowest limits.
And this should serve as the polar star of construction to judges
and all others, who may be called upon to administer the, go*
vemment.
^* Thus having sought, and, I trust, discovered not only the
literal sense and meaning of the- word ^ only^ but also its proper
interpretation, according to the true spirit of our federal constitu-
tion, I shall now inquire into its effect and operation in certain
cases, which might have been supposed to be treason had it been
omitted.
^^ In England, it is now generally admitted, that * in treason,
all the participes criminis are principals;' there beings as it Js
said, no accessories to that crime; and that every art which, in
case of felony, would render a man ^n accessory,^wiU in case of
treason, make him a principal.*
^^ This doctrine was laid down by jndge Chase, in his chs^ge
to the jury, on the trial of Fries; but as I conceive it to have
been extrajudicial, for reasons already nientioned, I shall take
the liberty now to inquire, whether it be not also questionable.
But before I do this, I shall endeavour to trace this copious
branch of constructive treason to its fountain head, and shew
how small a portion of that fatal torrent flows from an uncorrup-
ted spring. In doing phis, I shall begin with the latest authorities,
and conclude with the most ancient. This doctrine is advanced
by judge Blackstone, r4th Com. 35, 36.) for which he cites 3
Institutes^ 138. 1 Hal^s P. C. 613. and Foster^ 342. The latter
cites 3d Institutes^9. % and 138. and 1 Hale^ 2J5, 237, 328, i^76.
Hale himself cites 3 Inst. 16, and 138* Stanford's P. C. 32. and "
the year book, 1 H. 6, 5. of which *last case, I shall make particular
mention by and by.
" Sir Edward Coke^ 3 Inst. 16, and 138. cites Stanford^ P. C. 3.
and the year books, 19 H. 6^ 47. and 3 H. 7, 10. '
^* Stanford^ P. C. 3 and 32. 40 and 44. ^ites the same identical
cases from the year books, that sir Matthew Hale and sir Edward
Coke had cited before. 1^'rom these three original cases^ 1 Hen. 6,
5. 19 Hen. 6, 47. and 3 Hen. 7, 10. we must consequently derive
the doctrine in question.
^ Tlie ancient law of England was, that they who were present and abet-
ting others to do the act, were accessuries and not principals. Per Bromley,
C. J. Plowden, 97, 98. Sec Plowden's note thei-eon, ib. 99, 100. whereby it
seems the law was changed tnnpore Henry 4. 1 Hale, 437.
+ Fries's Trial, 19a
I Tliis is a mistaken reference in Foster; it should be 16.
a
544
^ The case of 1 H* 6, 5. (A. D. 14^2.) is thus meottoned bf
Stanford^ p* 32* A man was outlawed of felony, was imprisooed
in the king^s bench, and indicted and attainted of breaking prisoo,
and releasing certain persons confined for treason, and this was
adjudged petit treason.
^y Upon what principle this case could be judged petit treasoo,
it might puzzle any man at this day to conjecture, and creates a
presumption, that the case is not very accurately reported. But
there is another principle of the common law, 9n this particular
subject of breach of prison, which will probably lead us to under-
stand it. It is this: If there be felons in prison, and a man know-
ing of it, breaks the prison and lets out the prisoners, though he
knew not that there were felons there, it is felony; and if traitors
were there, it is treason. Now if the persona released in the
case here referred to, were imprisoned for petit treason, instead
of high treason, this judgment would be regular: but by no rule
of law, could they be deemed guilty of petit treason, in any other
case. And, if this were the case, it would prove that there was
no distinction in principle, between treason and felony; inasmuch
as the releasing a felon from jail is felony, in the same manner
as releasing a traitor from jail is treason* And it appears from
Stanford, that a stranger rescuing one indicted for felony, was in*
dieted and tried, and found guilty for that offence, before the
principal felon was tried* But sir Michael Foster gives us a fur-
ther clue to the understanding of this case; for in speaking on
this subject, he observes with great reason, that the forcing of
prison doors may be considered as overt acts of ^ levying rvar^
the species of treason for which Benstead, of whom he was
speaking was indicted* And this might have been the case in
this instance* These cases confirm the conclusion, that the law
made no distinction at that time, between treason and felony.
A statute was made in the year after this case was adjudged,
2 H* 6* c* ult. cited by Stanford, whereby it was declared to
be treason in any person imprisoned, to break prison* All which
circumstances united, create a strong presumption, that this
case is not correctly reported, nor the grounds of the judgment
perfectly understood*
^^ The second case occurred thirteen years after,, in the year
1441, and is thus mentioned in. Brooke* A man was indicted
for forging false money, and another at the same time: one
confesses and approves, and has a coroner assigned him; the
other pleads not guilty, an^ it w^s found that he was consent*
ing and aiding in forging the false money, and so guilty. Stan-
ford mentions the case in the like^manner, and it is evident
from this state of it, that the defendant was presenty aiding and
assisting, and so would have been a principal in felony as well
as in treason, M'hich is confirmed by Stanford, who proceeds
545 '
thus: * It 19 the same case in rape, where one does the act, and
another assists him to commit the rape; he is hy this a ravisher!
•The law is the same in felony as well as in treason, that all
present,'aidingand assisting at die fact are principals. Neither
of these cases, therefore, justify the doctrine advanced at this
day, that whatever act wiU make #man an accessory in felony,
will make bim a principal in treasoak
** The next case is 3 H» 7, 10. and la r«lied on by Stan-
ford and sir Edward Coke, as establishing the doctrine above-
mentioned: it was thus; one Cokker was indicted and attaint-
ed of making false money, and afterwards one J. B. was indict-
^ for traitorously and knowingly entertaining and comforting
him; and was found guilty, and the question was, whether he
would be deemed an accessory to Cokker? Brian justice, said
he might be accessory, for such counterfeiting was felony be-
fore the statute and is not cut oiFby it; and in every treason,
felony is implied, 8cc. ^et tamen Hussey Cap: Inst: d^i^it quod in
hoc quodjactum est proditio, non potest esse accessarius felonici et
proAtorii non potest esse accessarius^ for which doctrine he re-
fers to the preceding case of 19 ^« 6« 47* Here then we have
this opinion of two judges in opposition to each other; and we
find the latter supporting his opinion by a reference to the
very case, which, we have already shewn^ does not authorize it.
^^ These are all the ancient authorities referred to either by
Stanford, sir Edward Coke, sir Matthew Hale, or any writer
on the subject; and it requires very litde discernment, I appre-
hend, to discover that the two former do not warrant the lat-
ter, and that the latter is the ^Return of a single judge. And
Brooke cites it in that manner: ^ Nota, P. Hussey C. L queac*
cessary nepoet este a treason; ie recetment de traitor, ne poet este
tantum felony, mes est treason^* Had this been the established
doctrine of the common law, we might have expected that the
laborious and indefatigable sir Edward Coke (under whose
auspices it was brought to maturity as we shall see hereafter)
would have referred us to the Mirror, Bracton, Britton, Fleta,
or Glanville^ in some of which, it ^ would most certainly have
been found.''
In page 47, he adds, *^ Both common law and common sense
have been able to perceive, and draw a distinction between the
actual perpetrati«in of a crime,- and the bare advising, or even
procuring the perpetration of it, without being present when it
is perpetrated; they have also been abfe to distinguish between
die perpetration ot a crime, and the receiving and comforting
one, who has been himself the perpetrator, knowing him to be
such: it was reserved for the astute reason ttf judges appointed
Vol. I. S Z
546
hy the crown, to discover, that there was no distinction be*
tween these cases, when the sacred majesty of their master^s
head was in danger, or supposed to be so: it was reserved for
them to declare, that to give a meal's victuals to one gailty cf
treason, was a crime of the same malignity as levying Dvar
against the throne, or as aftning a dagger at the heart of the
monarch." '
An additional reason may be drawn from the law ortreason
in compassing the king's death. There, as the crime consists in
the intention, all are principals, and the aider or procurer in the
first instance is guilty, and this rule 'has been transplanted or
extended by theorists^ to the other great branch of treason,
** levying war" against the government- Lord Coke was vciy
fond of quaint expressions; of these one was, that ^^ in the htgh«
est and lowett offences all are prindpsds." That in them there
are no accessories. As a general principle, can this be correct?
Apply if to the lowest offences; apply it to the case of an as-
sault and battery. Suppose a man, having an enmity against
another, is determined to gratify his vengeance against him;
he does not act himself, but employs a bravo to assassinate or
severely beat him. A. thus advises and procures B. to beat C,
but is not present at the beating: will it be contended that an
action or an indictment will lie against A., who was absent, for
this assault and battery? The authority of Hawkins in his Piras
of the Crown^ book 2d, chap. 29th, section 4th< is decisive on
this point. " It seems agreed that whosoever agrees to a tres-
pass on lands or goods, done to his use^ thereby becomes a prin-
cipal in it. But that no one can become a principal in a trespass an
the person of a man hy any such agreement.^^ Also it seems
agreed " th^t no one shall be adjudged a principal in any com-
mon trespass, or inferior crime of the like nature, for baMy re-
ceiving, comforting and concealing the offender, though he
knew him to have been guilty and that there is a warrant out
against him, which by reason of such concealment cannot be ex-
ecuted."
Could it be supposed that gentlemen would have denied thb
to be law? It never can be admitted that the procurer or ad-
viser of a trespass is punishable as a principal. No man can be
a trespasser against the person of another who is not present
and acting or assenting to it.
Mr. Hay here insisted, that if a man procure another to
b^at a third, the procurer is a trespasser, and will be liable to
an action or indictment.
Mr. WiCKHA>^. I insist that the law is otherwise; and I
refer to the authority I have already produced. They can ad-
duce none to oppose it, and were it necessary it could be con-
X
547
ftrnied attd fonifi«d'by others* To be liaUe for the trespass on
the person, he must be present* If a man in Frederick county
advise another to beat a man in Henrico^ and he does beat him
accordingly in Henrico, where the adviser never was, an action
or a public prosecution will certainly never lie agsdnst the adviser*
But, admitting that both the theory and practice in the English
courts concur in establishing the doctrine which the gentlemen
contend for, and that any man« connected in any manner with
the traitors, is himself a traitor; yet I contend that it cannot be
law iQ'this country, where the constitution of the United States
has pointed out and estaUished a ctffeirent rule* The statute in
£n|^d, on which all the indictments are founded, is well
known to be that of 2S Edw. 3* It does not create any new
treasons of which the punishments are pointed out, or enlarge
the doctrine of treasons ; but on the contrary was intended to
narrow the legal definition of this crime, which was punishable
at common law*
In construing the statute therefore, the judges considered it
as made in affirmance of the common law, except, where the
restraining clauses were permitted to operate : it was construed
according to the course of the common law, and the doctrine,
that all are principals in treason, if it rest on any foundation,
can have no other than the common law* 1 Hale P. ۥ page 7^
to 87. proves that this stat 25 Edw, Z, was naade to confine
and limit the crime of treason, *^ which was brfore that statute
arbitrary and uncertatn.^^ In page 85 he calls it *^ the great boun-
dary of treasoni^^ and shews that its object was to prevent c^n-
structive treasons* This salutary statute is also spoken of by
Hume, as a very popular act passed to narrow, define and limit
tre^ons known at common law*
Under the federal constitution, I presume, it will hardly be
contended by the counsel for the prosecution, that we have any
common law, belonging to the United States at large. I alwsnra
did believe and still believe, that we have no common law for
the United States, e^>ecially m criminal cases» The only ground
on which the common law becomes a rule of decision, hi the
federal courts, is under that clause in the judiciary law, (Laws of
United States^ voL 1* chap* 20 sect. 34* page 74*) whicn makes
the laws of the several states a rule of decision, as far as they
respectively apply* The common law is part of the law of Vir-
pnia, knd the act of congress has adopted the laws of Virginia
as the rule of decision in cases where they apply*
With respect to crimes and oiTences against the United States,
which must be punished in an uniform manner, throughout the
Union, it seems clear for the reason already given, that non^
such can ex:st at common law, as the United States have in tha^
character no common law, and that they must be created by sta-
%
548
tute. Unquestionably the gentlemen wUl not deny this unii
they will not contend that what is treason in Maryland is not
treason in Virginia, or vice versa. If it exist ait all, it must be
uniform, embracing the whole of the United States. I do not
know, whether gentlemen will admit, but I presume they will
not deny, that treason against the United States is only punish-
able by virtue of the act of congress, under the constitutioD of
the United States, and that no indictment would lie against any
person for such an (mence till it passed ; and the crime being
punishable by a general statutory regulation, extending through-
out the United States, the mode in which that regubition ope-
rates must be uniform. The act of congress does not admit of
different constructions in diflFerent states. To illustrate this
position by a familiar case, I will mention the late sedition law.
One party thought it unconstitutional; another party dioogbt it
consistent with the constitution, and di^t a person guilty of the
offence, could be punished in each state, by the common law in
such state. It was a question of jurisdiction, but all parties
agreed, that if the constitution did authorise (or did not pro-
hibit) the congress to legislate on the subject, no perscui could
be punished for such an offence, till they passed an act creating^
the offence; because there was no general coinmon law perva-
ding the United States. The party who thought it constitutional,
were of o^iinion that the offence was punishable as soon as the
law passed. The other party of course thought otherwise.
That the United .States have no common law, and that offences
against them must be created and prohibited by stauite, is the
opinion of the learned judge Chase; and I believe that this opi-
nion received the unqualified approbation of those wiio thought
most unfavourably of his opinions, and judicial condua on odier
occasions.
Now, as there is no general common law of the United Stttes,
the act of congress must be construed without any reference to
any common law, and treason is to be considered as a newfy
•created offence, against a newly crated government.
In England treason and felony are classes or descriptions of
offences at common law; they are generic terms; uders and
abettors are punished in the former if you wiUy as principals, in
the latter as accessories.
It is a rule of law there, that, when a statute is n^ade in
affirmance of the common law, or to supply the defects' of the
common law, it should be expounded according to the common
law, see 10 State Trials^ 436. M^Daniel's case; Hob. Rep* p. 9«.
It has therefore been held, that if an act, criminal at common
law, be declared by a statute to be felony or treason, it being
made to supply the defects of the common la^, its prototype, the
same consequences ibttdw, as if it were, felony or treason by
549
commoti lav* It becomes therefore unnecessary to mention ac«
cessories, or even to (tefine the punishment; and accordingly
there are acts of parliament which go no further th^ to declare^
that the offences mentioned in them shall be felony, without even
mentioning the punishment. *
This rule may be questioned on this ground, that penal statutes
should be construed strictly; but it is generally considered as
law in England, that when a felony is created by statute, acces-
sories to it, though not named in the statute, are punishable; and
that all legal consequences of felony are attached to it by the
common law, except in cases, where the. special nature of the act
leads to z, different conclusion.
This rule is illustrated by the decisions on the 28 Htn*
8* chap. 15. which makes piracy, an offence not punishable at
common law, felony.
It has been solemnly adjudged, that as this was not a common
law offence, it worked no corruption of blood ; that accessories to
it were not punishable; in short that the statute not being made
in imitation or supply of the common law, shall not be construed
according to the course of the common law* HawiinSy in his P.
C. p* 152. c. 37. speaking of the said act of Hen. 8. making
piracy felony, says that *^ in the exposition of • the statute, it has
been holden, first, that it does no^ alter the nature of the offence,
so as to make that which was a felony only by the civil law, now
become a felony by the common law; for the offence must still
be alleged as done upon the sea, and is no way cognisable by
the common law, but only by virtue of this statute ; which by or-
daining that in some respects, it shall h^e the like trial and
punishment, as are used for felony at common law, shall not be
carried so far as to make it also agree with it in other particulars
which are not mentioned. And from hence it follows, that this
offence remains as before, of a special nature, and that it shall not
be included in a general pardon of all felonies, which as it was,
before this statute, to be expounded of no felonies which are such
only by the civil law, shall /:ontinue still to have the same con-
struction«" ^ From the same ground also it follows, that no per-
sons shaUy in respect of this statute^ be construed to be^ or punished
asy accessories to piracies before or after, as they might have been,
if it had been made a felony by the statute, whereby all those,
would incideiitaUy have been made accessories in the like cases,
in which they would have been accessories to a felony at
eommon law ; and from hence it follows that accessories to piracy ^
being neither expressly named in the statute^ nor by construction
included in it, remain as they were before^ CsPc."
If therefore I be right in my poituiatuniy that there is no com-
mon law of the United States as such, it follows as a necessaiy
consequence, that no persons can be punished for treason, or any
/
/
550
odier ofteoce under as act of coiigre8»« crealiiig wch offimce,
. utdess they come within the de8cri]1tioQ t>f the act ; that no pefw
son can be said to have levied, war agMost the United Statesi^
where it had not been levied by himself^ but fay cithers; and ihat
no overt act of others can, under the statute, be made hU 99erP act*
That such was the opinion of the framers of the act of coo*
gress, (Laws of the United States^ voL 1. page 100.) for tbe
punishment of treason and other offences, is manifest.
In sections 10 and 11* of the act, the punishment of acces-
sories before and after the fact is defined; that of the former is
death, as in th6 case of a principal; that of the ktter, fine and
imprisonment.
If the English rule, concerning accessories to felonies, were
thought to^btain, to what purpose was the 10th section enacted^
By the 10th section, the person who advises the piracy is de*
clared to be an accessory and made ptinishaUe. If it were implied,
why was this pfbvided? In section 16th persons stealing milkaiy
stores, their cowiseiiors aiders and abettors are mentioned; why
were they expressly mentioned, if they would have been neces-
sarily implied? In the 10th section some offences art enumerated,
the accessories to which, before the fact, are expressly made
punishable with death; and in the 11th section the accessories to
the same crimes, after the fact, are in express terms made
punishable with imprisonment not exceeding three years, and with
fine not exceeding five hundred dollars; but even in this enume*
ration, treason is not included* In both sections the offences of
murder, robbery or other piracy are mentioned, and in the
latter, felony is added. The obvibus conclusion resulting from
this provision in these sections is, that without it, accessories to
those offences^ neither before nor after, would have been ptmish-
able ; and that as treason is omitted, accessories to that offence,
whether before or after its commission, are not subject to be
punished* The 23d section affords an argument still more
directly applicable to the present question. It provides that
^^ whoever shall by force set at liberty or rescue any persoo
who shall be found guil^ of treason, murder or any other c^>i-
tal crime, or rescue any person convicted of any of the said
crimes, going to execution, or during execution, every person
so offending, and being thereof convicted shall suffer cieath.''
^* And if any person shall by force set at liberty or rescue, any
person who before conviction shall stand committed for any of
the capital offences aforesaid, or if any person or persons, dxsH
by force set at liberty or rescue any person committed for, or
convicted of, any other offence against the United States, every
person so offending, shall on conviction, he fiAed not exceeding;
five hundred dollars and imprisoned not exceeding one year*
This provi^on punishes those who rescue persons guilty of
551
tkese crimes' «l«er convietioD, with death, but after commitmeni;
mad before conviction, with fine and imprtsomnent only.
NoW) according tp the gentkmeni's arguments, aR are princi-
pals, as well the mere receivers after as the procurers, or the
actual perpetrator of the oifence. There is no distinctiofi m the
books. The £nglish writers consider persons who rescue oriet
at liberty traitors, as accessories after the fact; and they are said
to be indictable as traitors. Why then was this clause inserted?
A receiver of a traitor is asnnuch a principal, aocordipg to the
doctrine laid down in the English books, as a person aiding
before the fact* Will the counsel for the United States contend,
that such a receiver is punishable as a traitor, while the person
who forces open the doors of the prison^ and rescues the princi-
pal out of the hands of the marshal, shall be punishable only by
» fine of five hundred dollars, and by one year's imprisonment! If
so, a man mi^t rescue a traitor before conviction, and conduct
lam to another who receives him. The receiver who, like lady
lisle, only entertains him but for one night, would be punishable
wkh death, while the rescuer and conductor whose crime has
the addiuonal idgredient of force, and that force directly em-
ployed in opposing the administration of justice, would be only
fined and imprisoned! It is so absurd and contrary to the rules
of equal justice, that it is impossible that the legislature could
have intended it. It proves that congress were of opinion, that
aiders and abettors were not, according to the constitutional de-
finkion of treason, traitors and principals. If this were an English
ststute made with reference to the common law, I might with
propriety contend, that it was the intention of the legislature,
tkat when counsellors, aiders and abettors of some offences are
samed and not those of others, those not mentioned should be
consijdered, as not within the meaning of the act, according to
the maxims of law. *
If this were not their intention, why did they mention these
terms in one and not in the other?
But it will be said, that in high treason, it is unnecessary to
inention counsellors, aiders, &c. because in treason there are
no accessories, all are principals. Now this argtmient is founded
on a total misapplication of terms. If they can be punished at '
all, it is as principals; but in point of Jact^ there may as well be
aiders and abettors in treason as in other offences. Indeed there
are many instances to be found in the statute-books, of these
very words ^^aidersy counsellors ^nd abettors*^ being used and
applied to treason. The statutory treasons between the 25
Edtv. 3. and 1 Mary are collected by Lord Hale, in the 24th
chapter of his Pleas of the. Crown^ p. 258. and among others I
would refer the court to the 20 H. 6. chap. 3. mentioned by
him in' pa^e 270. 26 H. 8. chap. 13. and 27 H. 8. chap. 2. in
552
page 275* 35 £[. B. chap. 1. in ^. 280. all of which, and I doubt
not many more, expressly mention cpimsellorsj aiders and abet-
tors. If it be not necessary to mention aiders and abettors to
make them punishable, why are they inserted in these statutes?
In page 275 " maliciously to wish, will or desire by wojrd or
wHtingfOrby craft, to imagine, invent, practise or attempt any
bodily harm to the King, Queen, heir apparent &c. to detaim
his castles &c." is ^^ enacted to be treason in the offenders,
their aiders^ counsellors^ consenters and abettors." " Counter*
feiting tde privy seal, privy signet or sign manual is made trea»
son, and the offenders, their counsellors, aiders and abettors, ts
suffer as in case of treason &c" The statutes, which are made
with a reference to the present law, mention aiders, counsel
lors and abettors, in some clauses, and not in others. Is not
the inference fair, that where they are not mentioned, they ais
not intended to be subjected to punishlnent? And when cot-
gress took up the Hoctrine of treason, with reference to tie
constitution, and did mention the aiders and abettors in some
cases, but not in others, is not the conclusion equally fair Aat
they did not ' intend that they should be involved in the ^It
or punishment of treason, except where they are expressly
mentioned? But a still better reason may be given why con-
gress did not mean to include aiders, counsellors, &c. ia the
guilt or punishment of treason. It was prohibited by the con-
stitution of the United States to enlarge the doctrine of ths
commission of treason, and that they knew that such a provision
would be void. This brings me to the consideration of the con-
stitution itself. I have before endeavoured tO demonstrate
that this instrument is not to be explained bv the same n^.
now technical rules that apply to a statute made for altering
some provision of the comnion law; but that such a construc-
tion should be given, as is consistent not only with the letter,
but the spirit in which the great palladium of -our liberties was
formed.
The object of the American constitution, was to perpetuate
the liberties of the people of this country. The framers of
diat instrument well knew the dreadful punishments inflicted,
and the grievous oppressions produced, by constructive trea-
sons in other countries, as well where the primary object was
the security of the throne as where the public good was the
pretext. Those gentlemen well knew from history, ancient as
well as modern, that, in every age and climate^ where the peo-
ple enjoyed even the semblance of liberty, and where factions
or parties existed, an accusation of treason, or a design to over-
turn the government, had been occasionally resorted to by
those in power^ as the most convenient means of destroying^
X 1
5SS
those individuals whom they had marked out for victilhs) atld
that the best mode of insuring a man's conviction, was to hunt
him down as dangerous to the state. They knew that mankind
are always the same, and that the same passions and vices
must exist, though sometimes under different modifications,
until the human race itself be extinct. That a repetition of the
same scenes, which have deluged other countries with their
best blood, might take place here, they well knew; and endea-
voured as far as possible to guard against the evil, by a consti-
tutional sanction. They knew that when a state is divided into
parties, what horrible cruelties may be committed even in the
name and under the assumed authority of a majority of the
people, and therefore endeavoured to prevent them. The
events which have since occurred in another country, and the
suiTerings under Robespierre, shew how well human nature
was understood by those who framed our constitution.
The language which they have used for this purpose is plain,
simple and perspicuous. There is no occasion to resort to the
rules of construction to fix its meaning. It explains itself*
Treason is to consist in levying war against the United States,
and it must be public or open war: two witnesses must prove,
that there has been an overt act. The spirit and object of this
constitutional provision are equally clear. The fr&mei^ of the
constitution, with the great volume of human nature before
th^m, knew that perjury could easily be inlisted on the side of
oppression; that any man might become the victim of pri-
vate accusation; that declarations might be proved which were
never made; and therefore they meant, as they have said, that
no man should be the victim of such secret crimination: but
that the punishment of this offence should only be incurred by
those- whose crimes are plain and apparent; against whom an
open deed is proved.
Now let me ask the opposite counsel, what security is af-
forded by the constitution, to the best or meanest man in this
country^ if the construction on which they insist be correct^
and whether instead of a safeguard to the citizen, they do not
reduce it to an unmeaning phrase ? Accordihg to the construc-
tion on which they miist insist, or abandon the prosecution, all
that is wanted to fix the guilt of treason on any individual, iSy
that an insurrection shall have existed somewhere in the
United States, no matter where. Observe, sir, that I am
arguing on abstract principles, and not with a particular ap-
plication. But suppose the government wished to destroy any
man: they find him in Georgia; an insurrection havens in New-
Hampshire. This will suffice for the purpose, and; if this cause
go on they will be obliged to contend t^t less will suffice ;
Vol. I. 4 A
554
t
that an insurrectioii is not necessary ; but that even a peaceaUe
assemblage going down the Ohio is sufficient for the purpose*
They merely undertake to prove the existence of an insurreG-
tion: that a number of people have committed an act of insur*
reaction : the man who is selected to be a victim is dragged
from one end of the continent to the other, before a judge
who is th^ creature of the government, appointed at the plea-
sure of the government, liable to be thrown out of office,
if he offend the government: the cause comes on to trial:
they prove an insurrection ; and when once this insurrectioa
or assemblage can be proved by two witnes;»es, nothing remains
but to connect with it the individual thus marked for destruc-
tion ; and as this may be done by evidence of his secret acts
or even his declarations, he may be seized and hurried by
force, from New-Hampshire to Georgia, or to any part of the
United States, which his accusers may choose as best fitted for
their purpose: it is in vain that he may prove, he was not pre-
sent when the offence of which he is accused was committed;
that^he never at any period of his life had been there; that the
actors and the scene were alike unknown to him; wretches, who
from views of interest or revenge are ready to further the
views of his oppressors, will present themselves, and he may
be convicted of treason in levying open \^ar against the govern-
ment, with people whom he never saw, and at a place where
he never was. Gentlemen may say, that this oilly shews, that
the citizen may be equally the victim of false accusations of
other oiFences ; that it proves nothing, but that the innocent
may be condemned on the testimony of perjured witnesses.
In no odier crime can a man be punished except in the county
or district where he committed the act. Let gentlemen men«
tion for what other offence an individual may be tried on a
different district from the one in which he did' the act which
constitutes the essence of the crime; and admitting their prin-
ciple in its full force, what becomes of the constitutional pro-
vision on this subject? where is the constitutional tribunal to
try him, ^^an impartial jury of the state, wherein the offence
has been committedf" It is reduced to a mere nullity. 1 he
constitution meant something; hut according to this construc-
tion, it means nothing, and deceives instead of affording any
security. It may be objected that treasonable conspiracies
might thus go unpunished. To this it is a sufficient answer^
that they may be prosecuted and charged, according to the
truth of the case. Here I will mention an authority, which shews
the propriety and safety of limiting and fixing the definition of
treason; and how much the English statute, from which the
words of our constitution are taken, has been approved of in
that country. Hume's History qf England, vol. 2. p, 487,
555
^^ One of the most popular laws enacted by any prince was
the statute which passed in the 25th year of this reign, and
whidi limited the cases of high treason, before vague and un-
certain, to three principal heads : conspiring the deladi of the
king, levying war against him, and adhering to his enemies^
and the judges were prohibited, if any other cases should
occur, from inflicting the penalty of treason, without an ap-
plication to parliament. The bounds of treason were indeed
so much limited by this statute, which still remains in force
without any alteration, that the lawyers were obliged to enlarge
them, and to explain ^ a conspiracy for levying war against
the king, to be equal to a conspiracy against his life; and this
interpretation seemingly forced, has, from the necessity' of the
case, been tacitly acquiesced in/'
But it will be objected, that admitting the full force of this
reasoning, it cannot avail us, as the point has been settled by
a decision of the supreme court; and that argument must
yield to authority*
At the same time that I deny the legislative effect of a de-
cision of the supreme court, I will admit that it is entitled to
the highest respect, as evidence of the law; and that the rea-
son which would warrant the court in departing from it, must
be strong and apparent; but to entitle it to this respect, the
decision must have turned upon the very point in issue : and
if the case should ever occur of an anomalous decision of
that court, in opposition to known and. established rules of
law, I have no hesitation in saying, that it ought not to form
a rule for this court. A mere dictum or an expression throwi^
out in argument without consideration (or if there were consi-
deration, yet if the point in issue did not turn upon it) oug^t
not to be deemed an authority.
There is however no such decision; the case never has occur-
red; for until the present instance, there never has been an at-
tempt in the courts of the United States, to convict an individual
for treason, who was not actually on the spot, when the act
charged in the indictment was committed.
I will admit that in the case of Messrs. BoUman and
Swartwotit, which was only a question of commitment, de-
cided by the supreme court, there is a dictum^ which is re-
ported to have fallen from the chief justice in delivering the
opinion of the court, that is in opposition to the doctrine I
have been contending for; but the decision of the court did
not turn on that point: a determination of that question, one
, way or the other, would have no effect on the judgment: it was
therefore extrajudicial. Your honour can set me right If I be
mistaken; but I believe the point now relied on by the prose-
cution, either did not come before the court, or was very
I
. 556
slightly touched on by the ban it wad a mere dictum of the
judges stated arguendo, an obiter opinion delivered without ar-
gument, and not necessary to have been decided. A decision on
the very point in controversy is evidence of the law; but an
obiter opinion, a mere dictum or decision on a point not before
the pourt, i's no authority at all. Points of law, not immedi-
ately arising on the question, are frequently mentioned by
judges,^ by way of illustration or explanation; and such opini*
ons never have the force of precedent. The question before
the supreme court was, who were concerned in the conspiracy,
and who were not; but the point now before this court, never
came before the supreme court; for as I have already observed,
this is the first attempt in this country, to convict a person of
treason, who was not present when the act was committed. It
18 well known, that Vigol and Mitchel, the only persons of the
multitude concerned in the western ins\4rrection in 1794, who
were convicted and sentenced to die, (but were afterwards
pardoned) though the most actively engaged, were mere in-
struments instigated and persuaded by others; but what was
the conduct of the government of the United States on that
occasion? Were those who fomented, advised or encouraged
the insurrection, but were not actors in it, indicted and prose-
cuted ? No, actors and actors only, were indicted; and I trust that
this attempt, which is as novel as it is dangerous, will never be
sanctioned by this court; and if I know my own mind, I feel a
better and more powerful motive than professional duty, in
endeavouring to prevent the establishment of their doctrine ;
a most ardent desire to avert from my country, my family and
myself, an evil so very pernicious and repugnant to every princi-
ple Qf civil liberty. I would unite with themselves with as much
zeal and energy as possible, in opposing it ; for if it were to be
sanctioned as a confirmed doctrine, it might be jusdy said,that,
however perfect in theory, our government was a practicad
tyranny, at the pleasure of those who have the admmistration
of the government in their hands. It is on these grounds, that
I have argued this cause ; not solely in defence of my client,
but for the sake of the community at large, and of posterity.
If the law be as I have stated, it is not very extraordinary,
that the court should in a point not immediately before it,
have adopted the dicta of writers in England as authority,
and have applied them to this country, without full considera-
tion of all the points on which the question turned.
I think, therefore, that it is proved, that under the constitu-
tion of the United States, no man can be convicted of treason^
who was not present when the overt act charged in the indict-
ment was committed.
557 '
Before I proceed fiirtber I beg leave to remark, that all my
ai]B;umentB and illustrations are on abstract principles; that I
wish to make no pardcular or individual allusions ; and that I
do not mean the smallest reflection on the government: nor
should I think myself justified to waste the time of the courts in
making such observations. I now proceed with my argument.
If, contrary to my firm conviction, I should be mistsdcen on
this point, I contend,
Secondly, That the offence if it be punishable, should be laid
in the county and district where the act was doiie by the accused
which renders him guilt>'. If he be guilty, it is by naeans of
some act done by himself; and that act must have locaSty. The
prosecutors must prove the fact as laid in their indictment. They
have, pledged themselves to furnish proof in support of the
charge therein . specified. It being admitted that colonel Burr
was not present when the act was done, we contend, that they
should at once withdraw tlieir indictment, as it d^s not contain
a specification that can be supported by the evidence. If he have
conspired to levy war against the United States, and it be ad-
mitted that the war .was carried on by others in his absence, his
offence can only be punished by a special indictment charg-ing the
facts as they existed*
^ To this will be objected the rule of law, that in treason all are ^
principals;lind that therefore, in construction of law, the acces-
sory was present aiding and abetting at the same time and place
where the overt act was committed. But this objection arises
from a misapplication of the rule: aiders and abettors afi^r the
fact are as much, in construction of law, principals, as those
before the fact; yet there is no doubt that they must be tried,
not in the county where the war was levied, but where they did
the act, which makes them principal traitors by relation. The
rule of law is not founded on arbitral^ principles, but on max«
ims of imniutable justice and reason. .HThough it requires, as the "
best mean of deterring people from ^e commission of so heinous
a crime, that all who are in any manner concerned in it, should
\^ equaJly punished, yet to prevent oppression,, 4t must be so
construed as to be consistent with another sacred rule of law,
that the accused roust be informed of the precise nature of the
charge against him, in order that he may be prepared to deiend
himself. The accusations, whether in an indictment or informa-
tion, should specially state the offence, which is intended to be
proved against the accused. He cannot otherwise be prepared to
defend himself. An offisnce, different from that which is charged
against him, and which alone he can be expected to meet with
his defence, is never allowed to be given in evidence. This is the
ibundation of all the niceties in criminal prosecutions; but this
<»b|ectioB is npt founde4 on any critical nicety, but on the broad
merits of the case.^^f the indictment were not to give notice df
~<»
t 558
i
tine precise nature of the accusatton, Ae \Arty accused niiglit be
o|^ressed and destroyed. Does this indictment inform us that
it was meapt to be proven, that colonel Burr was not present
when the overt act was committed, but that he was guilty of
treason, by being connected with those who perpetrated the
overt act? On the contrary, is it not presumable from the charge
in this indictment, that colonel Burr himself committed the act,
and levied the war against the United States in person? What
information does the iindictment give of the true nature of the
charge meant to be supported? For what purpose did dicy
comply with the formality required by the act of congress of
giving him a copy of the indictment, but to inform him, that
they meant. to prove, that he did the act on Blannerhassett's
island in person? It could admit of no other rational construc-
tion, than that they intended to prove, that he was there at the
time* Presuming this, we could not make this modon till we
found by what proof, they meant to support the indictment.
The accused therefore concludes, that the charge to be sup-
ported is, that he in person levied the war against the United
States at the place mentioned in the indictment. In order to
completely negative the idea of his being charged as an accessor}'
or aider to other people, this indictment is drawn in a special
and peculiar manner; not as indictments are genenjly formed.
It charges that he committed the act on Blannerhassett's island,
with divers person.^ unknown* Neither Mr* Blannerhassett nor
Tyler, nor any ojher particular person is named, but he is
alleged to have done the act with persons unknovm*
But it will be objected, that if guilty, he must know whether
the act is done or not, and be prepared to defend himself; and
that if not guilty, no evidence can be given that will fix the
crime upon him; and there is no necessity of a specification* But
this objection goes directly to prove, that there is no necessity
for an indictment at alU The court knew that an accusation
might bfe supported by perjury, and circumstances may create a
presumption of guilt, which testimony would explain, and which
explanation would evince the innocence of the accused* Besides,
if the general doctrine, contended for on the other side, be cor-
rect, a man may be guilty of treason, in being connected with a
conspiracy to levy war, and be really a stranger to the conbmis-
sion of the overt act, which makes him a traitor by relation*
It will be said that levying war is always a public act, and
therefore there is no difficulty in knowing what is intended to be
proved. Two answers may be given to this objection: one is,
that granting this to be true, the accused is to be informed of
the charge against him, not by public rumours, but by the ternos
of the accusation itself. The other applies to this particular case
only* The general doctrine always has been, that to prove the
charge of levying war, it must be shewn that there have been
559
f
av€Vl acts; and aa the charge must correspond with the frbofi^
the course has always been to state in the indictment, that the
aieciised kvied pubUc war. In every indictment for treason that
I have met with, in the State TriaU or books of entries, the
word ''^publk^^ or an equivalent word is inserted. The words,
^^ public war, did prepare begin and levy," are in die indictment
io the following cases: 8 State Trials^ page 219. in the prosecu*
tion against Dfunaree; in that against Willis, and in that against
Purchase, page 220 ; In 9 State Trials^ page 543* in the mdict- '
ment against Townly, the words ** did prepare, order, wage and
levy a public and cruel war" are used; and it is stated in Uie re-
port, that that form of indictment was made use of .against all
the rebeb'who were tried in Surry, except one for a special
reason.
The same words are used in the indictment against lord Kilmar-
nock, page 592. of the same volume, and against lords Cromarty
and Balmerino, in page 593* Itisaiao so stated InFoster^s Crown
Lawy page 6. In Tremain^s Pleas of^the Crown, page 2. the
indictment for levpng war is in the same form, *^ tiaitorousty
did prepare levy and ordain public warP and in this country
the indictment against John Fries has the same words, **did
ordain, prepare and levy public war against the United States."
In the present instance, gendemen do not say in the indict-
ment, that there was a public war; they only tell us of an act that
may be private or public They do not pretend to say that there
were marching and counter-marching in military array; that they
had great guns, &c. di|ima beating, &c
In the present, the word public is omitted in both counts of
the indictment; I do not suppose that it was done studiously.
Whether this were done by accident, ** currente calamoy^ or to
make it more palatable to the grand jury, need not be inquired. ^
Whether this word be not considered as operative or be omitted
in any indictment in this coimtry, I do not know, but it is used
in all the English precedents. I only use this argument for the
purpose of shewing that there is no ground for presuming know-
ledge of the fact, if indeed such a fact ever existed. On principle,
therefore, it ii apparent that this indictmeht does not warrant
the introduction of evidence to charge the accused with the acts
of bthers when he was present. Let me ask if a fiction that the
accused levied war be admitted, what necessity is there for ano-
ther fiction, that he was at a place where he was notf
The only argument on common law .principles that can justly be
iirged, would go to prove, that he could not be tried any where.
In another branch ^of this argument I have had occasion to
shew, that although it is laid down in the English books, that
all are principalsi in treason, yet that this rule only applies to the
degree of punishment and denomination of the offence ; that in
the progress of the prosecution, the same rules of law, which
560
apply to the case of accessories in felony, are to be followed
with respect to aiders and abettors before the &ct in treason;
and that this principle das been stated by most of the writers
who have stated the general rule. I shall have occasion in aQ{^-
ther part of my argument to explain this principle more fully.
Now it is clear that at common law, an accessory to a fekmy
which was committed in a different county from the one where
the accessorial act was done, was not punishable at alL At com-
mon law, the accessory could not be arraigned till the principal
were attainted. If the principal had never been indicted at. all,
had stood mute, had challenged above 35 jurors peremptorily,
liad claimed the benefit of clergy, had obtained a pardon, or had
died before attainder, the accessories, in any of these cases, could
not be arraigned. At common law, therefore, if a felony were
committed by A, and B had counselled, procured or commanded
him to commit it, and A had died, been pardoned or stood mute
&c. so that he had not been and could not be convicted, B
could not be tried at all. But a statute amended the law in this
vespect, (See Hale's P. C. chapter 57* page 62.) But the con-
stitution of the United States has fixed the place of trial, if indeed
it can take place any where.
The 8th article of amendments to the constitution, provides
that ^^ in all criminal prosecutions, the party accused shaQ have
a speedy and public trial, by an impartial Jury of the states or
district where the crime was conmiitted. This was meant to be
a substantial provision. Securing a trial by the vicinage; and yet
according to the construction contended figr by the gentlemen on
the other side, it is merely illusory, and a man who was bom in
Virginia and was never out of the limits of the state, may, not-
withstanding the constitutional provision in his favour, be hurried
o£F to New-Hampshire, and tried for an offence which he never
did commit, and which it is impossible he should have commit-
ted there. At djl events the rule must be uniform. Now it must
be admitted that an aider or abettor after the fact must be tried
in the county and district where he committed the offence; and
what sufficient reason can be assigned for a different rule in the
case of an aider or abettor before the fact?
No precedent can be produced in point on either side; because,
except in the case of Sir Nicholas Throgmorton, there* is no
instance to be found in the whole judicial history of England,
(under any of its different forms of government, being sometimes
a despotism, sometimes a limited 'monarchy, sometimes a repub^
lie) of an attempt like the present, under any form of indict<>
ment; and that case, as far as it is an authority, is direcdy in
our favour. He was indicted for levying war against the queen;
and the evidence was a connexion with Sir Thomas Wiatt, who
raised an insurrection in Kent, an<^ marched towards London, but
did not enter within the jurisdiction of the city, which beg^ at
561
Temple-bar. Yet Throgmorton was tried within the jurisdicdoii
of the city, and the lord mayor presided at the trial, and he
was acquitted.
It is troe that it is laid down in East^ an elementary writer,
who certainly is himself no authority, that there is nothing to
remark of difference between principods and accomplices in res-
pect of the indictment; but so far as we can judge from cases in
any degree analogous, the rule has been different. In Tremaine's
Pkas of the Cratvn^ in the case of an indictment against Mary
Speke, for aiding the duke of Monmouth and others in the act
of levying war against the king, the charge is special. As this
was in the 4th year of the reign of James the 2d, and the act
is charged as having been committed in the county of Somerset
in the west of England, it must have been one of the cases that
came befdre the inhuman Jefferies; and it seems that even he
deemed it necessary that the accused should at least be apprised
of the nature of the charge, by a special indictment charging the
fects as they existed*
It may be said, that the accused, in that case, was in the na-
ture of an accessory after the fact; but this cannot be supported,
for she was an assister at or during the fact, which is the samd
thing as an accessory before the fact. How was she charged?
The indictment is, that she, knowing the said James Scott (the
duke of Monmouth) to be a false traitor, and that he, with many
other false traitors to the number of 4000, had assembled and
collected and ^^ had traitorously prepared, levied and raised war,
insurrection and rebellion against the king &c./0r the comforting
assisting^ aiding and supporting of the said James Scott Sec. in
the war J rebellion and insurrection aforesaid^ &c. did cause to be
conveyed and carried to the said James Scott, &c. cart loads of
bread and of cheese &c," In a case of felony, such an accomplice
would be an accessory before the fact. There are in law but two
species of accessories, one before^ the other afier. A person
aiding at the time when the act was done has always in con-
struction of law (except where present and deemed a principal)
been considered as an accessory before the fact.
In the case of Somerville,.! Anderson^s Reports^ page 106,
although the indictment is not set out at large, the form is
particularly described, and it appears to have been settled on
great consideration^ '* that aiders and the other procurers of the
treason should be indicted specially for the procurement.^^ Som-
erville was procured and persuaded by Edward Arden and
his wife, to kill the queen. It was on great consideration deter-
mined, that according to law, if all three were indicted for ^^ levy-
ing warf^that he should be charged with doing the act, and that
they should be indicted specially for procuring and aiding him;
'that each ought to be charged according to the truth of the
Vol. L 4 B
(
cw
/
f pe
ettM : but that a general indictment was sufficient to support
tlie charge of compassing the death of the queen ; and oh this
great consideration they determined that aiders and other
procurers of treason should be indicted specially for the pro-
curement.
But if this form of indictment be insisted on as being pro*
per on this occasion, it must be under a general rule applicable
to all cases of aiding, in the commission of an overt act of
treason: and if in any case, a departure from the rule for the
purposes of justice would be proper, it would be such a one
as the present; none requires specification more*
Now among the treasons created by act of parliament, which
are collected in 1 Hale^s Pleas of the Crown^ chap. 24. p> 280. is
one created h\ the 28 Hen. 8. chap, 18. by which " marrying
any of the king's children or reputed children, or his sisters, or
aunts of the father's part, or the children of the king's brethren,
or sisters, without the king's licence under his great seal, or
deflowering of any of them, is enacted to be treason." Now
we may suppose a very probable circupistance, that a female
accomplice in one of those treasons, for instance one of the
maids of honour, should be prosecuted for aiding and abetting
the principal traitor, would she be indicted by her name, as a
female, with the addition of spinster, for marrying the king's
aunt) or deflowering his daughter? or would she be charged spe-
ciallv with aiding or abetting the male person who did the cu:tP
33 Heiu 8. 1 Hale 281. By another act of parliament of the
same reign, it is made treason in any woman the king shall
intend to marry thinking her to be a true maid> to marry him
if she be not so. Now it is a very possible case that the para*
mour of such a woman (t will suppose her to be one of the maids
of honour, and him to be a lord of the bedchamber) should
aid her in imposing on the king. She is tried, found guilty
and executed. How is he to be charged? would he be indicted
by the name of A. B. gentleman, or by his title of lord, for
marr}'ing the king, not being an unspotted virgin, or to use the
language of the act, a pure and clean maid? This may seem to
be treating the subject with more levity dian I could wish to
do; but the argument directly applies: it exposes the fallacy of
gentlemen's arguments. It may indeed be said, that in these in«>
stances, there would be a physical impossibility in the act^ as
charged in the indictment, and that therefore in such a case
it ought to be charged so as to correspond with the fact; but
this is an admission that it may be charged, and if in any case,
it surely ought in such a one as the present: for it is as much
a physical imp6ssibility that colonel Burr should be at Blan-
nerhassett's island and in Kentucky (places several hundred
563.
miks dUtant) at the same time, ails that an iodividual should be
at the same time a man and a woman.
A little attention to principles must satisfy us, that levying
war may consist of a great variety of actsj yet it is one entire
offtnce. The expression in the act is *' levying war," in the
indictment '•^ levying a public war." Now a war may consist of
a single act of hostility, or a great variety of acts. If a man
were concerned in the rebellion of 1715 and in that of 1745,
though there is a complete space of thirty years between them^
iie might be indicted for both, because they are separate rebel-
lions and insurrections; but if he were concerned in that of
1 745 only, he could not be charged with the battles of Preston
Pans, Culloden, the taking of Edinburgh, Manchester, Cai^
lisle, &c. in separate indictments in succession : for if so,
there might be a thousand or more trials, though there was
but one rebellion: i^ might be divisible ad infinitum*
After charging generally that war was levied, every indict*
ment charges certain overt acts, and these overt acts are laid
for the information of the party. The prosecutor may lay as
many overt acts as he thinks proper and select which he chooses;
but they must be all laid at once in the same indictment*
They are the charge which, if proved by evidence, supports the
indictment. If the charge be for the information of the party,
is he not excused if it be not made good? Was it ever
heard that a person might be tried over and. over again for
treason in the same rebellion? Has it ever been pretended, that,
when a person came prepared to contest particular facts, other
facts were to be proved against him? For example, a person is
charged with a succession of facts done at Edinburgh, Falkirk,
Preston Pans, Carlisle &i.; he comes prepared to prove aft
*'' alibi;^^ but on the trial fipds instead of these facts being in*
tended to be proved, that the counsel for the prosecution intro*
duce evidence of facts committed at places totally diiferent
from those in the indictment, and not committed by himself, but
by others when he was not present; would not this evidence
be a surprize upon him? would it be admitted? So in treason
for compassing the king's death, is there a single instance in
which an overt act, not charged itx the indictment, and distinct
from that which is charged, has been attempted to be proved
on the prisoner? There is not. An overt act not charged amy
be proved when it tends to prove that which is charged;
but then that is never admitted till after tlie overt act charged
is proved.
They charge colonel Burr with being at Blannerhaasett's
island, when he was two or three hundred miles off in Ken*
tucky, and instead of proving it, they offer to prove that tbe
564
act was done by others. If however, I be mistaken in this
point, send it be intended to make us responsible for die acts of
others, the indictment should have stated the charge gene-
rally; and their names should be mentioned in the indictment;
and we should be charged with doing the act joindy with them.
In the present case this is no^ only omitted, but the prosecutor
by the very terms of the indictment negatives the charge of aid-
ing others, and thus becoming responsible for their acts. It is
expressly stated that we levied war with certain persons un-
known. This is contrary to the fact as assumed by themselves:
for the fact, that known persons have committed an overt act,
and have done so in connexion with us, is the sole ground on
.which it is pretended that the indictment can be maintained.
In answering this objection, the counsel for the prosecution
may shelter themselves under the form of law, and say that
precedents are in their favour; now a reference to the prece-
dents will satisfy the court, that nothing is more common than
to charge persons with committing treason with others, who are
not indicted themselves.
In Tremaine^s Pleas of the Crown^ there are two indictments
for conspiracy to levy war, with one who is not a party to the
indictment: the first in page 279, 280. the case of the King v.
Gerard* who is indicted and charged with conspiring and ima-
gining the death of the king ^' with divers other false rebels
and traitors to the jurors urUnown;^* and also with ^*' falsely,
wickedly and traitorously with James duke of Monmouth and
with divers other false traitors to the jurors aforesaid unknorvn^
assembling &c. to levy and make war and rebellion against the
the king &c." and in page 307. in the indictment against John
Hambden, it is charged that he ^^ did traitorously with divers
other false rebels and traitors to the juror!> aforesaid unknarvfiy
conspire, compasis, imagine &c.^' and that ^^ he traitorously with
James late duke of Monmouth and divers other false traitors,
to the jurors aforesaid unknown^ did assemble, meet, consult
and a^ree to raise and procure divers great sums of money,
and great numbers of armed men traitorously to levy and make
war and rebellion against the king," &c. Here is an express
specification of his having associated in the treason with the
duke of Monmouth and others unknown. There are also a
number of cases in the State Trials, in which the accused are
charged with a design to levy war with persons who are named,
though those persons are not pi^-ties to the indictment: among
a number of others I could refer the court to the case of doc-
tor Hewitt, 2 S. T. /». 281. and the case of John Morant, Esq«
ibid. p. :^91. and 4 S^ T. p. 132. the case of Henry Cornish,
who was indicted for that ^' traitorously knowing Jame^ the
late duke of Monmouth^ William Jtussel Esq. and Thomas Arrd"
565
Urong^ knight^ and divers other traitors^ traitorously to have
conspired the death of the king, he, the said Henry Cornish
as a false traitor, did traitorously promise to the said other
traitors to be aiding and assisting in the treason aforesaid* In
all these cases, in laying the overt act charged in the indict-
ment, the connexion of the accused with certain other in-
/dividuals named is expressly stated. /
It is a rule of law, that a charge must be proved as laid/ It
would) therefore, have been inadmissible to give in evideijiCe a
connexion with other persons than those named in the indict^
ment, and not with them.
Those who framed these indictments must, therefore, have
thought it necessary to shape their charge in this form, in order
to ma&je it correspond with the proofs; and what case can be con-
ceived, in which a specificaition would be more necessary than the
one before the court, when it is admitted that the accused was not
present f and an attempt is made to charge him solely on the
ground of a connexion with others, can it be right to make him
liable for their acts^ when they are not even named in the indict-
ment? Nay more, when it is expressly declared, that he did the
r act, and the others^ who aided him in doing it, were unknown?
Suppose there were thf*ee distinct insurrections: he is charged
with levying war generally, not a private or secret, but a public
war, could colonel Burr tell which of the three insurrections he
was intended to be charged with? There is no specification; and
he cannot tell to which of several acts of war the charge is to be^
applied. Suppose an assemblage in London to pull down and de-
stroy conventicles, meeting»houses, or bawdy-houses, and a per-
son, thought to be connected with those who composed the assem-
blage, but who was not present, should be indicted for ^^ levying
war," as in the case now before the court, without naming any
of the persons who were present: he would not know how to de-
fend himself against this constructive treason: he could not tell
from the indictment, for what he was indicted; whether for pul-
ling down and destroying bawdy-houses ,or conventicles, or in
connexion with whom it was intended to charge him: but had he
been informed by the indictment, what was to be proved against
him, he might be able to prove an alibis or to establish his inno-
cence satisfactorily; but a prosecution in such a case, without a
specification such as I contend for, has never been attempted.
If it be once established that special indictments are neces-
sary by the law of England, the argument is conclusive to shew,
that no indictment can be sustained under the constitution, for
such an act as is charged against colonel Burr. Treason consists
in levving war only; but he is not charged (in fact, though he is
by the indictment) with levying the war personally himself, but
with being connected with others who did levy it. Can an ac-
566
tessoiy after ihe fact, or a receiver of >a tmitor, be indicted
under the constitution? If he cannot, no more can the accomplice
before the fact. If a special charge be necessary on an indictment
of an accessory after the fact, it is equally necessary to charge
the accessory before the fact specially; and then the indictment
dQes not conform to the; constitution, which requires that the war
should be. levied by the accused. Treason coJisists in ^^ levying-
tvar^^^ not in advising it^ or receiving him who has levied it If
you allege an act as done by others, do you not charge that it is
done by the others? In England a special charge, particularly
stating the act of procurement or comforting, is proper; but here
it is forbidden by the constitution, treason being expressly limited
to the act of war, not of advising or receiving. But the spirit and
meaning of the constitution are not to be evaded by charging
generally what ought to be charged specially. I submit, there-
fore, whether upon principle or practice, any evidence can be given
of the acts of third persons, not named in the indictment, when
it is admitted that the accused himself was absent.
Although I trust that some, if not all the points that I have
contended lor, are decidedly in favour of the accused, there is
•ne more, which, as it rests not only on the plainest principles
of reason and justice, but on a concurrence of all the authorities
•n the subject, is too clear to admit of a doubt; and were the case
of less importance, I should have deemed it unnecessary to sub-
mit any other to the court. I lay it down as a rule that cannot
be controverted, that even if aiders and abettors in treason be
considered as principals, yet that their guilt is derivative, and
can only be established by legal proof, that the persons whose
acts they are answerable for, have committed treason; that
the only legal proof is a record of the conviction of those per-
sons; that without such proof, no testimony connecting an aider
or abettor with those persons is admissible; and of course if
there be no such riecord the prosecutors fail in their case, and
cannot proceed with their testimony.
In order, therefore, to prove the guilt of an aider or abettor,
the person from whom his guilt is derived, must be shewn to be
guilty by the highest evidence.
But I would not narrow the grounds of my client's defence,
nor do I mean to admit that others who are alleged to have been
connected with him in the imputed conspiracy have been guilty,
when I insist that his guilt, if it exist, is derived from theirs.
I deny that any of them are guilty. This is an act of justice not
only to him, but to them. Mr. Blannerhassett, Mr. Tyler and Mr.
Smith, as individuals, are deservedly respected; but they have
been held up throughout the United States and in this court as
arch traitors. I mean no reflection on the gentlemen on the other
side, but judging them on general principles, from the zeal
567
and perseverance which they have already manifeated, diey wiQ
continue atrenuonsly to contend, that those injurious reports are
well founded^ and that their guilt is unquestionable. Colonel Borr,
therefore, considers it not an act of justice to himself only, butm
sacred oblig;ation respecting them, that this charge should be in*
quired into; and, if not established, that thbse unfounded calum-
nies should be refuted. Unless the record of the condemnation
of some persons who are proved to be traitors be produced, and
die connexion between them and colonel Burr be proved, no other
^roof is admissible or can be received. That this is the rule ia
all felonies is beyond all question; the accessory never can be
convicted until the principal be found guilty; and a record of the
conviction of the principal must be produced on the trial of the
accessory. But perhaps it will be observed, by the gentlemen on
the other side, that in treason there is no accessory^ and all are.
principals* That rule is general, and applies to accessories <ifter^
as well as to accessories before the fact. I contend that with res*
pect to accessories nfter the fact, it has always been adjudged
and considered as setdcd law, except by chancellor JeiFeries, that
in order to fix guilt on such acce8sor%\ the principal who did the
act must be convicted. Lady Liste's attainder was reversed \xf
act of parliament, because the person whom she had received had
not been convicted. She was a lady of rank and fortune, and
tned,'conVicted and executed (as before stated) for entertaining,
concealing and comforting John Hicks, knowing him to be a false
traitor* It was thought necessary to reverse her attainder by act
of parliament. The act calls her trial and condemnation ^^ an irrC'
gtdar and undue prosecution^ and declares that the ^ verdict was
mjuriously extorted by the violence, menaces and other illegsHi
practices of judge Jefieries;'' but it particularly mentions, as a
principal ground ol the reversal, ^^ that the ftaidjohn Hicks (the
person whom she had entertained) was not at the trial of the said
Alicia lAsle^ attainted or convicted of any such crime*'* Unless it
had been thcmght that the law was setded^ that an accessory could
not foe prosecuted till the principal had been convicted, and that
she had been deprived of the benefit of this law by the violence
and cruelty of Jefferies, the act of parliament would not have
been passed.
In several other prosecutions before Jefferies, the convictions
were produced. On the trial of William Ring an accessory after
the fact, for receiving and comforting and providing meat, drink
and lodging for Jost ph Kelloway and Henry Lawrence, who
were in the rebellion in the duke of Monmouth's army, the first
evidence produced was the record of the conviction of Kelloway
and Lawrc-nce, 4 St. Trials^ 130 — 134; and on the trial of John
Fernley for harbouring and concealing James Burton who had
been outlawed for treason, and had been in Monmouth's rebel-.
568
lion, the first evidence produced against him was the record of
Burton's outlawry^ ibid* p. 137* Now as aiders after the fact are
as much traitors as those before, the same rule applies to acces-
sories before, withvequal force. They stand on precisely the same
ground; the guilt of the accused is consequential in both cases.
The difference of time does not affect the question, because the
act of procurement or advice is never he^rd of, if the act of trea*
son be not committed; so that the procurer or accessory before is
a traitor by relation, as much as a receiver after. In this point of
view there is no distinction between them; so that the guilt of
the procurer or accessory is a consequence of the act; and if the
act be not done he is not guilty.
But it is unnecessary to rely on general reasoning however
conclusive; express authorities on the subject may be produced.
Lord Hale in the first volume of his Pleas of the Crovm^
states, that ^^ as to the course of proc<;eding, it hath been, and
indeed ought to be the course^ that those who did actually commit
the very jact of treason should be first tried^ before those that are
principals in the second degree^ because otherwise this inconve-
nience might follow, viz. that the principals in the second de-
gree might be convicted, and yet the principals in the first deg^ree
may be acquitted, which would be absurd." Apply this doctrine
to me present case: colonel Burr is charged with bemg an aider
before the £ict, to Blannerhassect, who being charged with ^ hav-
ing actually committed the very fact," must be first tried. His
guilt is derivative; and you must prove that the act is done by
the conviction of the principal, before you are let into evidence
against the accessory. In confirmation of this doctrine he refers
to- AndersofC^ Reports^ p. 109. Somerville's or Aiden's case.
Arden and wife, and Somerville were (as before stated) in-
dicted for treason, in compassing the death of the queen ; the
two former as procuring or advising the act to be done, and the
latter as the actor. It was ruled on great consideration as a ge-
neral principle, ^^ that the jury must first be charged to inquire of
the principal offender, and if they found him guilty then to in-
quire of the receipt; and if the principal be not guilty then to
acquit both ; that this was the law where the offence charged vras
^ levying war;' but where it was for compassing the queen's
death, that there was no need that he who undertook to do the
act should be first tried; for the movers and procurers are guilty
of compassing the death, though he that was procured should
never assent thereto."
In the 2d vohimey p. 223, the learned author states, that
^^ if A be indicted of high treaspn, and B be indicted
for receiving or comforting him, or procuring or abetting
(but not present) here it is true that they are all principals;
but inasmuch as B, in case of a felony would have been but
accessory, and it is possible that A may be acquitted of the
569
fact, it seems to me that B shall not be put to answer of the receit
or procurement till A be outlawed, or at least jointly with A
and in this case the same jury may be charged with both, and
their charge shall be first to inquire, whether A were guilty, and
if not, then to acquit both A and B; and if A be found guilty,
then that they inquire of B. And in Somerville^s case (26
£Iiz.) mentioned before, the^ inquiry was first of the principal
offender, and then of the receiver or procurer, to avoid that in«
convenience and aweroust, that might happen in case B were
first convict of the procurement and receit, and yet possibly A
might be acquitted of the principal fact."
It cannot be contended that by indicting B. as accessory or pro«
curer singly, the prosecutor can evade diis rule of law, which
is founded on the soundest principles of moral right. He cannot
allege that the defendant has waived it, because the indictment
has given him no notice that he was to be charged as principal
in the second degree; there being no Reference to any other indi*
vidual named in the indictment*
If then Lord Hale be an authority on this point, he is conclu*
sive. He says, that aiders and procurers before the act, and re*
ceivers after, never can be guilty, if the principal be innocent*
In order to prove that the accessory is guilty, } ou must have the
highest evidence, and that is not conclusive, for he may contro-
vert the guilt of the principal; but the prosecutor is not at liberty
to say that he is guilty, without producing the record of his con-
viction.
But this question also proves, that I was right on a point I have
already argued, that the indictment should charge the offence
speciaUy, and state that the accused procured the act of treason,
which was committed by another, who should be named in the
indictment.
The next law writer, in point of authority, to lord Hale, and
one certainly no otherwise inferior to him, than in his having
confined his disquisitions to particular branches of criminal law,
is Foster. He may be said to be of equal authority with Hale, for
in point of correct judgment and understanding none is superior
to him. In his chapter on accomplices, he states with explicit
approbation the opinion of Hale, and agrees with him in every
essential particular. The whole of the first section, from p. 341
to 347, is apposite to the present question; and as his thoughts
will not admit abridgment, I will read the whole to the court.
^* It is well known, that in the language of the law there are no
accessories in high treason, • all are principals. Every instance
of incitement, aid or protection, which in .the case of felony will
render a man an- accessory before or after the' fact, in the 9ase of
high treason, whether it be treason at common law or by sta-
tute, will make him a principal in treason; unless the case be
Vol. I. 4 C
570
otherwise provided for by the statute creating the offence, or
where the special penning of the act, leadeth to a difierent
construction.
" This rule hath long obtained and will not now be contro-
verted; but I think it a matter of great importance, that the rule
be rightly understood; I mean with those limitations which sound
sense and common equity require. For cases have frequently
happened, where an offender in the final issue of the prosecu-
tion may be considered as a principal in treason; and yet, duiing
the intermediate steps towards his conviction, he ought from a
principle of natural justice, to be considered merely as in the na*
ture of an accessory before or afler the fact.
" For instance, A. adviseth B. to counterfeit the king's coin or
sesds, or indeed to commit any of the offences declared treason
by the 25 Ed. 3. and fumisheth him with means for that pur-
pose; (that species of treason which in judgment of law, fall-
eth within the clause of compassing the death of the king, queen,
or prince always excepted:) If B. in consequence of this advice
and encouragement doth the fact, A. is a principal in the treason;
for such advice and assistance in the case of felony would have
made him an accessory before the fact; and in high treason there
are no accessories, all are principals. But if B. forbeareth to
commit the fact to which he is incited, A. cannot be a traitor
merely on account of this advice and encouragement, though his
behaviour hath been highly criminal ; for bare advice or incite-
ment, how wicked soever, unless in the cases already excepted,
will not bring a man within the statute, where no treason hadi
been committed in consequence of it. So in the case of assistance
or protection supposed to be given to a traitor after the fact,
the party knowingly affording such protection, if the treason hath
been in fact committed^ will be a principal in treason for the rea-
sons already mentioned. But if a person lying probably under a
suspicion of guilt, conscious of his own innocence, should think
it advisable to withdraw, and patiently to wait the issue of
things when the storm, which gathereth round him, shall be
blown over; the party who received and harboured him, during
his retreat, cannot be a traitor for so doing, provided the con-
duct of his friend shall appear, upon examination, to have been
blameless. Lord chief justice Coke, who while he was in the
service of the crown, seemeth to have had no bowels in state
prosecutions, when he layeth down and applieth the rule I have
mentioned, that all are prmcipals in treason^ plainly goeth upon
a supposition, that the treawn^ presumed to have been procured^
was afterwards in fact committed; or that the party supposed to
have been knowingly received and harboured had been actuallit
guUty of high treason. It would have been absurd to the last de^
gree, to have gone upon any other supposition; for it cannot be
571
said with any sort of propriety, that a person procured an of«
fence to be committed, which in truth never was committed;
or that any person knowingly, viz. with a full knowledge of a
treason to hme been committed^ (that I take to be the legal sense
of the term knowinghf^ received and harboured the traitor, if
such treason never had been committed by him.
^ There needeth very little to evince the truth of this obser*
vation, more than to give a proper attention to the rule already
mentioned, that every act which in the case of felony y will render
a man an accessory ^ will in the case of treason make him a prin^
cifial; especially if we add to it, according to lord Hale, that
nothing short of such an act will* What circumstance therefore
b necessary to render a man an accessory in felony? Plainly this
above all others, that the felony charged upon the principal^ hath
been in fact committed by him. For which reason no verdict can
pass against the accessor^s till the truth of this single fact shall
have- been legally established either by the conviction of the
principal if he continueth amenable to justice; or by judgment of
outlawry if he abscondeth or flieth ; unless the accessory chooseth
to waive the benefit of the law, and to submit to a trial,
'* This rule is founded ig. good sense and natural justice.
The accessory is indeed a felon, but guilty of a felony of a dif-
ferent kind from that of the principsd. It is, if I may use the
expression, a derivative felony connected with and arising out
of that of the principal and cannot exist without it. Whether
the same equitable rule is by parity of reason to be extended
to treasonable actions of a similar nature, I mean to such as are
of the derivative kind, and though in the language of the law
styled principal treasons, yet partaking of the nature of mere
accessorial offences, cometh now to b^ considered. This is the
point of importance I hinted at in the outset qf this discourse.
For if in prosecutions for treasons of this kind the same rule
of equity be observed as in cases of felony, it will become a
matter of very small importance to have been learning by what
special technical expression we are to describe the offence.
^^ Lord chief justice Hale spendeth a whole chapter evt
this point, which he intitleth, ^^ Concerning Principals and Ac-
cessories in High Treason." And though in conformity to the
established mode of speaking, he calleth every person who can
any way be considered as an accomplice in treason a principal
hi it; yet when he cometh to speak of the course and order
to be observed in the prosecution of the offenders, he consi-
dereth those accomplices whose supposed guilt is connected
with and dependeth upon the real guUt of another in the light of
mere accessories ; and stateth a few cases by way of illustra^^
tion and proof. A person is committed to prison for high tr^^
572
son, the gaoler voluntarily sufferellihini to escape; or a strainer
knowing of such commitment breaketh the prison and aetteth
him at large; or knowingU' rescueth him after an arrest and
before he is brought to prison* In all these cases the gaoler
and the person breaking prison or rescuing, whom he in a
passage I shall presently cite, calleth a kind of aceessorie/f^ are
principals in treason, if the part\' imprisoned were really a
traitor. If he were not so, it will be no treason in them; and
therefore they shall not be arraigned till the principal offender
be convict; for if he be acquitted of the principal offence the
others shall be disdiarged.
^^ I have used the .words knowing and knowingly^ because I
think that circumstance is a necessary ingredient in the case*
It is true it was resolved in Benstead's case cited here bv the
learned author and at page 141. but I think not rvith entire ap-
probation of the ruk^ that the party breaking prison would have
been guilty of treason though he had not known that traitors
were there, I am by no means satisfied with this opinion. For
the single authority upon which this point is said by Hale to
have been so ruled, doth by no means warrant it. The book
expressly stateth it, that the party did know that traitors -were
there* And Brooke who abridgeth the case is express to the
same purpose; sciant que traitors fueront en ceo. And Coke
citing the same case layeth a great stress on this circumstance,
that the party knew that traitors were there^ and conducted
them out of prison. I have upon another occasion taken some
notice of this short and imperfect report of Benstead's case,
and observed that the prosecution against him appeareth to
have been carried on with uncommon expedition, not to say
with some degree of piC,V:ipitancy. And probably the forcing
of prison doors, as many were forced during fhe tumult^ was
given in evidence on his trial, among other outrages of the
night, as overt acts of levying war, the species of treason for
which he stood indicted.
^^ The same rule of equity and natural justice the learned
judge in another place applieth to the case of felonious escapes
and rescues, and addeth, If the principal offender be convicted
and hath his clergy, ^ I think the gaoler or rescuer shall never
be put to answer the escape or rescue, as the accessory where
the principal hath his clergy is thereby discharged, for the
rescuer and officer are a kind of accessories.' He calleth them
a kind of accessories, because there can be no felonious escape
or rescue where no felony had been previously committed.
But in strict legal propriety they are not accessories to the
original felony, for though a man should be committed for
V
573
many felonies, yet the escape or rescue is eonsidered Sis one
single felony and is so charged.
^^ With regard to a person knowingly receiving and harbour-
ing a traitor, the learned judge in the place lately cited ar«
gueth, that though he is in the eye of the law<a principal trai«
tor and shall not be said to be an accessory, yet thus much he
fcrtoAeth of an accessory^ his indictment must be special of
the receipt and not of the princ4pal treason. If he is indicted
by a several indictment, he shall not be tried till the principal
be convicted; if in the same indicment with the principal,
the jury must be charged to inquire first of the principal of-
fender, and if they find him guilty, then of the receipt; and if
the principal be not guilty, then to acquit both. For though in
the eye of the law they are both principals in treason, yet in
truth he (the receiver) is so far an accessory that he cannot be
guilty if the principal be innocent.
^^ In the case of Mrs. Li$le \vhose hard fate it was to fall
into the hands of perhaps the worst judge that ever disgraced
Westminster-Hall, no regard was paid to this doctrine. I
would not be thought to mention this case as an authority upon
which a doubt can at this day be possibly raised. I do it for
the sake of what happened afterwards, which I take to be an
authority with me. Her attainder was afterwards reversed in
parliament; and the act reciteth among other hardships of her
case, that she was by an irregular and undue prosecution^ in*
dieted for entertaining and conceal/ ng John Hicks a false traitor
knowing him to be such ; though the said Hicks was not at the
time of the trial attainted or convicted of any such crime*
^ The same learned author in other parts of his work ar-
gueth to the purpose for which I have already cited him ; and
applieth the same rule of equity to the case of a person in-
dicted for contriving, abetting, aiding, or consenting to treason,
which happeneth never to have been carried into execution.
*'*' But here we must distinguish, though the learned judge
speaking in general terms apposite to his present purpose, doth
not. For with regard to every instance of incitement, consent,
approbation, or previous abetment in that species of treason
which falleth under the branch of the statute touching the com-
passing of the death of the king, queen, or prince, every such
treason is in its own nature, independently of all other circum-
stances or events, a complete overt act of compassing; though
thefactoriginally inthe contemplation of the parties shouldnever
be effected nor so much as attempted. A. inciteth B* to a treason
of this kind, B. in abhorrence of the crime, and from a just
senseof the duty which every man oweth to his king and country,
and which every good man in the like circumstance will pay,
t-
574
maketh a discovery; by means whereof il is brought to justice*
This incitement on the part of A. is a complete overt act of
treason within this branch of the statute, and hath no sort of
connexion with, or necessary dependence upon the future be-
haviour of B» And therefore whatever the learned author
hath advanced in general terms touching fruitless ineffectual
advice or incitement to treasonable practices, must be under-
stood of such treasons only as^ do not fall within this branch of
the statute."
7/^ / In fiage 341. he states that an accomplice in treason, though
/in the final issue he may be considered as a principal, yet, dur-
^ ing the intermediate steps towards conviction, he ought to be
< considered merely as in the nature of an accessory before or
after the factytn page 346 he cites lord Hale's opinion with
approbatioiu/except that he properly distinguishes between
treason, io^ompassing the death of the king, s\pd every other
species of treason; as in the former the treason is complete
in the very act of conspiring. Now it will be admitted that a
conspiracy to levy war is not in itself an act of treason. Judge
Foster then, as well as lord Hale, is a direct authority in
favour of my position.
The same doctrine is laid down and illustrated by a modem
writer, who certainly i& not of himself authority, though he
merits the name of an industrious and accurate compiler, and
who, from causes that might be conjectured, on all occasions,
seems little inclined to relax the severity of the law on the
subject of treason.
Mr. £ast, in his treatise on Crown Law^ chap. 2. sec* 39. p*
100. lays down with great clearness the same rule of law, and
expressly states, that proof of the treason of the agent can
only be established by his conviction. I shall cite what he saith
though his words differ but litde from Hale and Foster. ^^ But
further, with respect to the trial, the general rule, that all are
principals in treason^ must be understood with more limitation.
In regard to all acts of approbation, incitement, advice, or
procuring towards that species of treason, which in judgment
of law falls within the clause of compassing the king's death,
or that of the queen or prince, there is no doubt but that the
party may be tried before the person who acted upon such m- '
citemcnt ; because the bare advising or encouraging to such
actions is in itself a complete overt act of compassing; and
it is totally immaterial whether the atttempt were ever made
or not. The case of Somerville proves no more than this;
though the rule is there laid down in general terms, that a per-
son aiding or procuring a treason may be tried before the
actor. But with regard to all other treasons within the statute
575
25 Edw* 3* if one advise or encourage another to commit
them, or furnish him means for that purpose, in consequence
whereof the fact is committed, the adviser will indeed be a
principal; for such advice or assistance would have made him
an accessory before the fact in felony: but if the other for-
bore to commit the act thus advised, the adviser could not be
a traitor merely on account of his ineffectual advice and en-
couragement ; though his conduct would be highly criminal :
for it cannot be said that a person procured an offence which
in truth was never committed* In these cases therefore the
treason is of a derivative nature, and depends entirely upon
the question, whether the agent have or have not been guilty
of such treason? the proof of which can only be hgalhf established
by his conviction^ if he continue amenable to justice, or his at-
tainder by outlawry, if he abscond; unless the accessory choose
to waive the benefit of the law, and submit to a trial.
^^ The same rule holds in case of assistance or protection to
a traitor after the fact in all cases, or of permitting, or {^cur-
ing his escape from custody. The party knowingly affording
such protection or contributing to such escape, if the treason
have been in fact committed, will be a principal traitor; but
the fact oftheprincipaPs guilt must first be established^ and no*
tice of it must also appear to have been received by him who
may be called the accessory after. For it cannot be said that a
person received or succoured a traitor knowingly, that is, with a
knowledge of the treason's having been committed, when in
truth either no such treason was committed by him, or the
receiver was altogether ignorant of it."
It will be observed that he too considers the case of an ac-
complice before and after the fact, as being governed in this
respect, precisely by the same rules.
It need only be remarked, that he considers the case of
Somerville (^Anderson 109) as being at first view against the
position, and endeavours to explain it. Now the case of Somer-
ville being an exception from the general rule and so stated,
according to the maxim exceptio probat regulam^ is direcdy in
favour of this doctrine: as the decision in that case proceeded
solely on the ground of the indictment being for treason in
compassine the death of the king, which being in itself a com-
plete act of treason, was distinguishable from the other species
of that offence. The words are ^^ car le procurement est un
compassement et imagination del mort le roy quel en soy
mesme est treason."
The prosecution is not against us as 'accessory to a crime
committed by another; the indictment informs us, that it is
against ourselves not for an accessorial but a principal Creadon
I
J
576
committed by us in person; and we come. to defend ourselves
against that charge only.
The only doctrine, in any of the books to the contrary) is
that of sergeant Hawkins in book the .2d« chap. 2/. secU 2« p*
439, 440. (Leach's edition.; ^ As to the first particular^ in wb«t
offences there can be no accessories, but all must be prtncipalsy
if any way guilty, it seems to have been always anuncontroverted
maxim, that there can be no accessories in high treason or tres*
pass. Also it seems to have been always agreed, that whatso-
ever will make a man an accessory before in felony, will make
him a principal in high treason and trespass, as battery, riot,
rout, forcible entry and even in forgery and petit larceny. And
therefore wherever a man commands another to commit a
trespass, who afterwards commits it in pursuance of such c3om-
mand, he seems by necessary consequence to be as guilty of
it as if he had done it himself. From whence it follows, that
being in judgment of law a principal offender, he may be
tried and found guilty before any trial of the person who ac-
tually did the fact."
Now it is observable that this is only a general expression of
the general rule, that he goes into no detail and does not pre-
tend to argue on the question. The doctrine is admitted to be
correct so far as it applies to treason in compassing the death
of the king. The only difference, between him and the autho-
rities I have quoted, is that he does not distinguish between
this and the other kinds of treason ; but he does not enter into
the particular question whether derivative guilt can be proved
otherwise than by the conviction of the principal offender.
But if he were in direct opposition to them, he does not
stand on such high' ground as they do; the names of lord
Hale and justice Foster are certainly entitled to much higher
respect than his. Sergeant Hawkins, though his work is a
very valuable institute of criminal law, is not considered a
great constitutional lawyer.
He is not only opposed by Hale and Foster, but even his
own editor corrects this dictum in the later editions. Mr.
Leach, his very able and accurate Commentator, has a note on
this very passage, in which he corrects the gencralty of the
expression, and confines it to the case of treason in compassing
the death of the king. The words of the note are *' this rule
requires distinction: in that species of treason touching the
death of the king,&c. every accessorial agency is, independently
and in its own nature, a complete overt act of compassing,
and renders the offender guilty though the fact itself should
never be attempted. But in every other species of treason,
the accessorial offence is of a derivative kind ; some act must
577
be done, to which act the oiFender must be accessoiy, and out
of which his guilt must spring before he can be converted by
this rule of law, into a principal offender. It seems therefore,
that though in the event of the prosecution such an offender may
be considered as a principal, yet, in his progress towards convic-
tion, he oitght^ from a principle of natural justice^ to be consi-
dered merely as in the nature of an accessory^ before or after the
fact; and if under such a consideration he were tried^ before the
person who actually did thefact^ the absurdity might follow^ that
the accessorial agent may be convicted^ and the principal, who did
the act^ and on whose guilt the offence of the accessory must
alone depend^ may be aofuittedJ*^
The authorities therefore all correspond; and, supported as
they arc by the strongest reasons drawn from the rules of com-
mon sense and natural justice, place the position I have con-
tended for, beyond the reach of controversy.
But it is objected, that no adjudged case can be produced in
support of it; it is a sufficient answer, that there has never been
an attempt, except in the case of Lady Lisle, to charge an ac-
cessory in treason before the principal. The counsel on the
other side must rely on that decision of Jefferies, or they must
abandon the prosecution; and even that case is conclusive in
our favour, for judge Jefferies's sentence was annulled, and
the attainder reversed by act of parliament, expressing strong
disapprobation of his conduct.
I cannot quit this point without remarking, that all the autho-
rities go upon the supposition that the indictment must be special;
a point I already have insisted upon. It is barely possible that an
objection will be made, which may be thought to desei-ve an an-
swer, that *' the accomplice may waive the benefit of the law,
and submit to a trial ;*^ and that as the accused has done so in the
present instance, the objection now comes too late. A reference
to the authorities and a moment's consideration will satisfy the
court that there can be no force in this objection.
The indictment gives us no infonnation of the nature of the
charge; it is against colonel Burr himself, who had no reason to
doubt that it was meant to be proved, that he in person commit-
ted the overt, act of treason in levying war as a principal in the
first degree. The charge, that the act was committed by him in
conjunction with persons unknown^ excludes the idea of a deriva-
tive treason or a responsibility for the act of any particular indi-
vidual or set of men.
But if it were specially charged, and the persons, whose acts
the accused was to answer for, were named in the indictment
with every necessar)' description of time, place and circumstan-
ces, the party going to trial according to the course of the court.
Vol. I. 4 D
578
without a special prayer to be tried before the principal, and an
express waiver of his right entered on record, could not be con-
cluded from taking this exception. The words, ** wcuve the bene^
ft 'of the lawy" mean an eypress renunciation of a rights and
none such certainly has been m^ade in the present instance.
But admit that all these points are against us, still there must
be some legal proof adduced of the guilt of the principal who
comnutted the act, before the prisoner can be made a traitor by
relujon. Admit, that a person may be generally charged as pre-
sent, who was absent; that the record of the conviction of tha
principal is unnecessary; and that they are at liberty to prove
the act of the principal by mere parol testimony; yet before
colonel Burr can be connected with Blannerhassett, they must
prove an ove^t act to have been committed by Blannerhassett,
and of this the court and not the jury must judge; that is, the
court must judge, what in law constitutes an overt act of trea-
son, though the jury only can decide, whether such an overt act
have been in truth committed or not. Admitting the correctness
of the statement of the only witness whose testimony bears upon
this point, Allbright^ (who is at one time in jest, at another in
earnest) yet stiU there is nothing like the semblance of an act
of war. Admitting further, for the sake of argument, that what
he states amounts to proof of a;i overt act of war, yet still he is
a solitary witness; and as the law requires two witnesses to prove
the same overt act -of war it is impossible to connect us with
him. Every inference, that can be rationally drawn from the facts
proved by this single witness, may be drawn by the jury; but
this cannot supersede the necessity of complying with the con-
stitutional requisition of proving the overt act by two witnesses.
According to the universal doctrine of all authors on this sub-
jeit, the overt act, which is to be thus proved, must be ai^ act of
public hostility (not a mere private act) and must be particularly-
set forth in the mdictment. The principle is maintained by wri-
ters and confirmed by the form of the indictments.
1 Easi^s Crown LaWy p. 116. "In every indictment for high
treason upon the stat, 25 Ed. 3. for compassing the death of
the king, or for levying war, or adhering to his enemies, the
particular species of treason must be charged in the very terms
of the statute, being a declaratory law, as the substantial oflFence,
and then some overt act must be laidy as the means made use of
to effectuate the traitorous purpose." " The overt acts so laid are
in truth the charge to which the prisoner must apply his defence^
And therefore it is in no case sufficient to allege, that the pri-
soner compassed the king's death,' or that he levied war against
him, or adhered to his enemies; for upon a charge so general and
indefinite, he cannot know what acts he is to defend.'' In page
579
121, he states, however, that ^^the whole detail of the evidence
need not be set forth." "The rule, prescribed by the statute of
'William *that no evidence shall be admitted orj^iven of an
overt act that is not expressly laid in the indictment,' is in truth
no more than the common law itself directs generally. For in no
case is a prisoner bound to answer unprepared, for every action
of his life, but only to that which is the subject of the indictment
against him." The true sense of the clause is, " that no overt act
amounting to a distinct independent charge, though falling under
the same head of treason, shall be admitted in evidence, unless
it be expressly laid in the indictmeni/ but an overt act may be
given in evidence, though it be not expressly laid or not well
laid in the indictment, if it amount to direct proof of any overt
act, which is well laid. Thus in the case of Rockwood (]&. 132)
who was indicted for compassing king William's death, two of
the overt acts charged were, that he and others met and con-
sulted upon the proper means for way-laying the king, and at-
tacking him in his coach; and also that they agreed to provide
forty men for that purpose. Upon this indictment the counsel
for die crown were allowed to give in evidence a list of the names
of a small party who were to join in the attempt, of which the
prisoner was to have the command, with his own name at the
head of the list as their commander; for though not charged in
the indictment, yet it amounted to a direct proof of the overt
acta laid, viz. the meeting and consulting together how to kill
the king, and then agreeing to provide forty men for the pur-
pose." The same doctrine is laid down in p. 123. but in that
page it is stated that *^ if the overt acts, offered in evidence and
not laid in the indictment, be no direct proof of any of the overt
acts charged, but merely go to strengthen the evidence or suspif
cion of some of those overt acts by a collateral circumstance, such
evidence cannot be admitted notwithstanding the opinion of
Lord Hale to the contrary. As in the case of captain Vaughan,
before cited." And Foster in p, 194, states the same doctrine,
that the overt act must be laid in the indictment. ^^ In every in-
dictment for this species of treason, and indeed for levying war,
or adhering to the king's enemies, an overt act must be alleged
and proved. For the overt act is the charge to which the prisoner
must apply his defence^ and if divers overt acts be laid and but
one proved, it will be sufficient." The object of charging the
overt act is to give the accused full notice to come prepared to
answer it.
Here Mr. Wickham observed, that as the usual hour of ad-
journment was now past, he could not finish his acgument to-day,
but wished to be indulged with permission to resume it to-mor-
row, which was granted; and the court adjourned.
J
580
Friday, August 21st, 1807*
As soon as the court met, Mr. Wickham observed that he
would by no means wish to take up the time of the court unne-
cessarily; but that it might not be improper briefly to advert to
some parts of his arguments yesterday. He then proceeded ; —
The court will recollect the several points which I endeavoured
to establish yesterday. The first was founded on the absence of
the accused from the scene of action, at the time of committing
the act charged in the indictment; and the second on the neces-
sity of proving the act as laid. The third point was, that the
guilt of the accused, if it exist at all, is in its nature only deriva-
tive, and cannot be proved without first producing the record of
the conviction of the principal.
Hawkins, in his Pleas of the Crown^ ch. 29. sect. 2.^. 440.
as I stated before, is the only authority which says that the acces-
sory may be tried before the principal; and his commentator
Leach denies it, in his note subjoined.
The rules of law require, that the prosecutor, before he can
convict the accessory, must produce on his trial the record of the
conviction of the principal. Foster supposes that the production
of that record is sufficient to put the accused on his defence. But
he admits that it is no more. Hawkins says that such evidence
is only introductory to other testimony, which is necessary to
conntxt him with the principal.
The court will observe that Foster lays down the doctrine
with g^'eat clearness, that, the conviction of the principal is ne-
cessary to be produced, in order to put him on his defence; but
that the accessory may prove that the principal is innocent, not-
withstanding the production of the record of such conviction.
hx pages 364, 3b5, he says that " The accessory may be brought
to justice, notwithstanding the principal has been admitted to
his clerg\' or pardoned^ and very prpper was this provision.
For in the scale of sound sense and substantial justice, the only
questions, in which the accessory can have any concern, in com-
mon -with the principal^ are, whether the felony were committed,
and committed by the principal. These facts the conviction of
the principal hath established with certainty, at least sufficient
to put the accessory to his answer* And therefore in whatever
manner the principal may have been treated after his convic-
tion, seemeth to me to be a matter perfectly foreign to the
question, whether or when the accessory shall be brought iqK>ii
his trial." Sec, 3. " At a conference among the judges upon
the case of M'Daniel and others before reported, a general
question was moved how far, and in what cases the accessory
may avail himself of the insufficiency of the evidence in point
581
of facty or of the incompetency of witnesses in point of law,
produced against the principal; and in what cases he may be
let in to shew, that the facts, charged and proved against the
principal, do not in judgment of law amount to felony. There
was in that case no occasion to enter far into these questions,
since the facts, upon which the point of law then under con-
sideration must necessarily turn, were all found by the special
verdict." p. 365. ^^ If the principal and accessory are joined
in one indictment and tried together, which I conceive to be
the most eligible course, where both are answerable, there is
no room to doubt whether the accessory may not enter into the
full defence of the principal, and avail himself of every matter
of fact, and every point of law tending to his acquittal. For
the accessory is in this case to be considered as particeps in Ute^
and th}s sort of defence necessarily and directly tendeth to his
own acquittal. When the accessory is brought to his trial, after
the conviction of the principal, it is not necesiary to enter into
a detail of the evidence on which the conviction was founded;
nor doth the indictment aver that the principal was in fact
guilty. It is sufficient if it reciteth with proper certainty the
record of the conviction. This is evidence against the acces-
sory stiffcient to put him upon his defence* For it is founded on
a legal presumption, that every thing in the former proceeding
was rightly and properly transacted. But a presumption ofthis
kind musty I conceive^ give way to facts manifestly and clearly
proved As against the accessory ^ the conviction of the principal
will not be convhmve; it is, as to him, res inter alios acta* And'
therefore if it shall come out in evidence, upon the trial of the
accessory, as it sometimes hath, and frequently may, that the
offence of which the principal was convicted did not amount
to felony in him, or not to that species of felony with which he
was charged, the accessory may avail himself of this, and ought
to be acquitted." Hawkins, p, 456. b. 2. c. 29. § 47. says, " As
to the fourth point, whether the principal and accessory may be
both tried by the same inquest, and in what manner they are
to be tried. It seems to be settled at this day, that if the prin-
cipal and accessory appear together and the principal plead
the general issue, the accessory shall be put to plead also; and
that if he likewise plead the general, issue, both may be tried
by one inquest; but that the principal must be first convicted;
and that the jury shall be charged, that if they find the princi-
pal hot guilty, they shall find the accessory not guilty. But it
seems agreed that if the principal plead a plea in bar, or to the
writ, the accessory shall not be driven to answer , till suQh plea be
determined.'*'* In the note subjoined, the foregoing authority of
Foster, and Smithes case^ 0* B. 1784,^. 69« are referred to; and
S82
the sentiment repeated diat the prodneticm of the record of con-
viction of the principal, is sufficient to pat the accessory upon
his defence.
So that it is perfectly clear, from all the authorities, that the
first step is to produce the record of the conviction of the prin-
cipal to put the accessory on his defence, though it is not cxm-
elusive against him.
I hope to be excused for having taken up the time of the
court, so long on this pari of the subject. I will now proceed to
make some remarks on another point.
If it be possible that I am wrong in this last point, as well as in
the several other positions I have endeavoured to support; if an
absentee can be convicted on this general form of indictment,
and if the record of the conviction of the principal be not ne-
cessary, and parol testimony l)e admissible to prove the acts of
the accused, yet still I contend, that before Mr. Burr can be put
on his defence, or testimony exhibited to shew his derivative
gyilt, there must be some evidence to prove to the court, that
Blannerhassett, the principal offender, is guilty. If there be no
evidence against Blannerhassett, none can be admitted against
colonel Burr. Let us suppose, that there was no proof whatever
of the guilt of Blannerhassett^ would it be competent to them to
say that he was guilty, and to connect colonel Burr with him?
to say that his guili was derivative, when there was no original
source from which it could be derived ? I presume that the gen-
tlemen would give up the point if there were no such proof. It
would be the same thing as if there were no evidence at all
against the accused, for it would have no relation to the chai^
exhibited against him.
If there were evidence of a merely friendly meeting, it would
be the same as if there were no assemblage. If they were to
give evidence that Blannerhassett and some of those with him
were in possession of arms, as people in this country usually are,
it would not be sufficient of itself, to prove that the meeting was
military.
Arms are not necessarily military' weapons. Rifles, shot guns
and fowling pieces are used commonly by the people of this
country in hunting and for domestic purposes; they are gene^
rally in the habit of pursuing game. In the upper country every
man has a gun ; a majority of the people have guns every where,
for peaceful purposes. Rifles and shot guns are no more evidence
of military weapons than pistols or dirks used for personal de-
fence, or common fowling pieces kept for the amusement of
taking game. It is lawful for every man in this country to keep
such weapons. In England indeed every man is not qualified to
keep a gun ; but even to those who have not that privilege the
possession of dirks and pistols is not unlawful. Surely their pos-
S«3
86881011 at that island, of such arms as every man in this country
i^ legally authorized to keep, and which most people do keep,
can be no more evidence of a military project, or an intention to
subvert the government, than if they had not been there at all*
What is the rule to distinguish in such cases f There must be
such evidence of a hostile assemblage proved to the court, as if
true in point of fact, would constitute a treasonable assemblage.
But it may be said on the other side, that if the court will un-
dertake to judge in this case, it will invade the province of the
jury. Sir, it will not. It is the right of the jury to decide on
the weight of the evidence. They are to find facts. They may
find a special verdict, and if all facts be inferred by them that
can be properly inferred from the evidence, and are found by
them, the court can decide on their finding. If they do not find
facts to that extent, the court is bound to infer wl^atever may
be legally inferred from their finding. The overt act must be
particularly set forth in the indictment. It is clear on principle,
and supported by a number of authorities, as the case of Deacon
and several others, which have been referred to, that after the
overt act laid is once proved, evidence of other overt acts not
laid, may be adduced if they be direct evidence of that which
is charged; but it is a preliminary and essential point, that two
witnesses must prove the overt act.
The principle for which I am contending is the same in civil
cases. If A make a contract with C by B, before A can en-
force his contract against C, or give proof of it as made by B,
he must prove that B was in fact his agent; and then he pan go
on and prove the agreement, but not before the agency, without
proving which, it would be irrelevant and improper to prove the
agreement. The court would require the production of this pre-
vious proof of his agency; yet the court does not decide on the
weight of such evidence. This principle is further illustrated by
the right,which the party possesses, to require a special verdict,and
by his right also to demur to the evidence, and draw the case from
the jury to the court. But he subjects himself to this condition,
that every inference which the jury might draw, the court must
draw. I do not mean to say that the jury may wander into the
field of coi^ecture, and that the court may do so also when the
facts are thus referred to it; but that of every inference which
the jury n^ight draw according to sound reason and law, the
court must necessarily judge, and give the party the full benefit
of it.
Here I may properly refer to the same authority in Hawkins
p* 456. in the note of his commentator, where after stating the
necessity of producing against the accessor}^ the record of the
conviction of the principal, be adds ^^ but it seems that some
addidonal evidence is necessary for that purpose, in order to
apply and connect it with the case of a prisoner indicted as ac-
. 584
cessory; for a bare unqualified record can only be evidence
against those who are parties to it."
I come now to a most important inquiry, what constitutes an
overt act of " levying war/" which must be proved before the
guilt of treason can attach to the principal.
The Chikf Justice asked him if any adjudged case could
be produced, where the court was called upon to decide, and
did decide, that the evidence submitted to the jury did or did
not amount to proof of the overt act.
Mr. H AT said that he never knew the attempt made but once,
before judge Patterson, which was unsuccessful.
Mr. WicKHAM. The overt acts must be such as if true, that
is in reality committed, constitute treason. I do not say, that
the court will undertake entirely to perform what is the pro-
vince of the jury, and proceed to inquire whether an overt act
have been proved to have been committed, but that it is the
right and duty of the court to instruct the jury, what amounts
in law to an overt act of levying war &c. The counsel for the
United States has undertaken to give a definition to the jury,
of an act of treason in " levying war." The position taken by
themselves, as stated in a newspaper now in my hand [here
he read a passage from it] we mean to controvert. We have a
right to oppose gentlemen on the ground taken by themselves.
I deny the correctness of his definition. When we differ as to
the law, the court must decide between us* The real meaning
of his definition is that a mere assemblage of men, without
force, but met with treasonable intentioti, constitutes a com-
plete act of levying war. On this ground the most peaceable
meeting, if with treasonable designs, might be said to levy war.
Mr. Hat denied that his definition was accurately stated;
he meant to rely on the definition given by the supreme court
of the United States, to which he referred. The gentleman did
not understand me, said Mr. Hay, as I meant to be understood,
and as this roust be obvious he ought to have the candour to
admit it. The great object of my argument was, to shew that
an assemblage of men convened for the purpose of eflecting
by force, a treasonable object, and which force is meant to be
employed before their dispersion, is an overt act of levying
war against the United States. I appeal to you and the gen-
tlemen themselves, if this were not the sum and substance of
my argument. I took the ground that the force to be employed,
was meant to be emplo\ cd before the separation of the party;
because if it were a part of their design to disperse and meet
at another time and pla. e, for the purpose of carrying tht- de-
sign into effect, it would be only a conspiracy to levy war, and
585
not an act of levying war itself. It is easy to attempt to bring
an argument into ridicule. I have no objection to his doing so;
but he is bound to shew the precise words which I did express,
and not to impute to me terms which I never used or argu-
ments which I should have disdained to employ.
Here a desultory discussion ensued between the counsel, on
this point: when the chief justice observed that he understood
four distinct propositions to be stated to the court, (which he
repeated) every one of which was independent of every other:
and the last proposition he considered to be, that if the
record of the conviction of him who is alleged to be the,
principal were not necessary to be produced, parol evidence
' was admissible; yet the act itself which was charged to have
been committed, must be proved.
Mr. Wtckham expressed his regret that he was misunder-
stood; that as to ridicule, he meant no such thing. He admitted
that It was not always, though it was sometimes, the test of
truth; and though he might have been justified by the example
of others in asing it, he had then no such intention ; but he
insisted that what the gentleman denied was substantially
what he contended for. For, said Mr. Wickham, the only ob- -
jection which he makes to my construction of his definition is^
this, that I did not state that the purpose was to be effected
before the separation of the party; that is, that they must ex-
ecute it on the spot, which involves locality. This is but a small
deviation, and can make no essential difference in the offence;
but how is it possible to establish by satisfactory evidence, that
a number of men intend to act before any separation? But he
relies on the decision of the supreme court; and he dignifies
the meeting on Blannerhassett's island with the name of an as-
semblage of men convened to effect a treasonable purpose; and
this assemblage without force^ because convened with an in-
tention to use force thereafter, he says, is sufficient to consti-
tute an act of ^^ levying war," within the true meaning of the
decision of. the supreme court. Though some parts* of the
opinion of the supreme court may be expressed too vaguely,
yet, if attentively considered throughout, it cannot justify the
construction which that gentleman thinks proper to. put on it*
It may indeed be deemed marvellous, that gentlemen who
ought to comprehend it, do not. Part of that opinion is stated
and relied on; but not the whole. When duly and fully consi-
dered, it will be found to be what has always been considered
to be the law- in England. Part of this decision is in these
words : ^^ It is not the intention of the court^to say, that no in«
dividual can be guilty of this crime, who has not appeared in
arms against his country: on the contrary, if war be actually
Vol. I. 4 E
586
levied, that is, if a body of men be actually assembled for the
purpose of effecting by force, a treasonable purpose, all those
who perform any part^ however minute, or however remote
from the scene of action, and who are actually leagued in the
general conspiracy, are to be considered as traitors. But there
must be an actual assembling of men, for the treasonable pur-
pose, to constitute a levying of war.'Mt mjust be evident even
to the gentleman on the other side, that to complete the defi-
nition of treason to be fpund in this opinion, the whole doctrine
therein stated should be examined; yet it seems as if he
thought that we were to look no further than this clause for the
definition of treason. If he had looked ac the next paragraph,
it would have shewn him the contrary: " To complete the
crime of levying war against the United States, there must be
an actual assemblage of men for the purpose of executing a
treasonable design. In the case now before the court, a design
to overturn the government of the United States at New-Or-
leans, by force y would have been unquestionably adesi^,K;A/cA
if carried into execution would have been treason. And the as-
semblage of a body of men, for the purpose of carrying it into
execution, would amount to levying of war against the United
States ; but no cortspiracy for this object, no inlisting of men
to effect it, would be an actual levying of war. In conformity
with the principles now laid down, have been the decisions
heretofore made by the judges of the United States."
" The opinions given by judge Patterson and judge Ire-
dell, in cases before them, imply an actual assembling of men,
though they rather designed to remark on the purpose to
which the force was to be applied, than on the nature of the
force itself. Their opinions^ however^ contemplate the actual em-
ployment of forced ** Judge Chase in the trial of Fries was
more explicit. Ho stated the opinion of the court to be, ' that
if a body of people conspire and meditate an insurrection to
resist or oppose the execution of any statute of the United
States by force, they are only guilty of a high misdemeanor;
but if they proceed to carry such intention into execution by
force ^ that they are guilty of the treason of levying war; and the
quantum of the force employed neither lessens nor increases the
crime ; whether by one hundred or one thousand persons is
wholly immaterial. The Court are of opinion (continued judge
Chase, on that occasion) that a combination or conspiracy to
levy war against the United States^ is not treason^ unless combined
xvith an attempt to carry such combination or conspiracy into
execution; some actual force or violence must be used in pursu-
ance of such design to levy war, but it is altogether immaterial
whether the force used is sufficient to effectuate the object;
J
587
anyforce^ connected with the intention^ will constitute the crime
of levying warJ* " The opinions of these three judges are stated
to be law; and all three declare somp force to be actually ne-
cessary. Is it not very plain from all these parts taken together,
that wherever the supreme court speak of any body of men
assembled for the purpose of ejecting by force^ a treasonable
purpose, they mean that xh^ force of which they speak n\ust be
actually used in order to make it treason? Is not one part of
their opinion to be con&rrued with and explained by another?
In construing it, are gentlemen at liberty to take one part and
reject another which qualifies it?
I should think no other argument would be necessary to
shew this; but I will refer to your own opinion on the com-
mitment of colonel Burr; you said on that occasion, that ^^ an
intention to commit treason is an offence entirely distinct
from the actual commission of that crime* War , can only be
levied by the employment of actual force; troops must be embodied^
' men must be assembled in order to levy war.^* Again, you stated
that, ^^to constitute this crime, troops must be embodied, men
must be actually assembled; an4 these are facts which cannot
remain invisible. Treason may be machinated in secret, but it
can be perpetrated only in open day, and in the eye of the
world. Testimony of a fact, which in its own nature is so noto-
rious, ought to be unequivocal."
The act of levying war must therefore be an act of force and
of public notoriety exhibited before the world- Compare your
own opinion with the picture which the gentleman has chosen
to draw, and see how dissimilar they are.
We are then told of the opinion and admissions of Fries's
counsel on hb trial in Pennsylvania; and an eulogium is passed
on that counsel (Mr. Lewis) on account of that supposed opi-
nion. The opinion of counsel is no authority however unequi-
vocally expressed. But if we are to refef to the opinion of
counsel, let us refer in like manner to that of the counsel for
the prosecution. Mr. Rawle is equally as respectable as Mr.
Lewis. In Fries^s trials page 1 79. Mr. Rawle conceived him-
self authorized upon good authority to sav, ^^ that levying war
did not only consist in open, manifest and avowed rebellion
against the government, with a design of overthrowing the
constitution ; but it may consist in assembling together in num-
ber^ and by actual force^ or by terror, opposing any particular
law or laws. There can be no distinction as to the kind or na-
ture, of the laws, or the particular object for which the law was
passed, since all are alike, the acts of the legislature who are
sent by the people at large to express their will."
588
< ^^ Force need not be used to manifest this spirit of rebellion;
nor is it necessarv^ that the attempt should have been success-
ful, to constitute the crime. The endeavour by intimidation to
do the act, whether it be accomplished or not, amounts to trea-
son, provided the object of those concerned in the transaction
is of a general nature, and not applied to a special or private
purpose.'' The attempt to effect the purpose by terror is suffi-
cient. I wiU refer to the case put by the gentleman himself by
way. of illustration, that if an assemblage of men were to inarch
unarmed into this town for the purpose of attacking the capi-
tol, and in such immense numbers, as to render all resistance
vain and' ineifectual, and no resistance were therefore made,
their object would be effected by terror and imaginary alarm.
Their numbers in that case would supply the want of arms.
The only difference is between actual and potential force ; and
in that case, there would be potential force sufficient to effect
their object.
In Fries's case, he came forward with an armed multitude.
He employed force as well as terror, to break prisons, to
rescue prisoners and to oppose the operation of the laws of
his country*
The opinion of Mr. Sitgreaves,the other respectable counsel
of the United States, is still more explicit on this subject*
Iw page 19. of that trial, he says, that ^^ if the arrangements
are made, and the numbers of armed men actually appear^ so
as to procure the object, which they have in view, by intimida*
tion as well as by actual force, that will constitute the offence*''
In page 20. he says, ^^ It must be war waged against the United
States* This is an important distinction. A large assemblage of
people may come together, in whatever numbers, however
they may be armed or arrayed, or whatever degree of violence
they may commit, yet that alone would not constitute treason;
the treason must be known ; it must be for a public and not a
private revenge ;« it must be avowedly levying war against the
United States. If people assemble in this hostile manner,
only to gratify revenge, or any other purpose independent of
war against the United States, it will only amount to a riot;
but if it is an object in which the persons have no particular
interest, this constitutes the offence of treason." With respect
to the definition of Foster, I will not take up the time of the
court by detailing it fully, or repeating what may have been
already quoted. Suffice it to say, that he considers it a fixed
^ principle, that there must be actual violence or hostility, and
that the overt acts roust be public acts* In page 21 1. after men-
tioning several specific instances of treasonable acts, he adcis,
that " all risingSy to effect these innovations of a public andgene^
589
ral concern by an armed force^ are, in construction of laMr, high
treason, within the clause of levying war^'* and he gives one
principal reason, *^ that they have a direct tendency to dis-
solve all the bonds of society and to destroy all property and
all government too, by numbers and an armed force*^^ And like-
wise that ^' insurrections for redressing national grievances,^'
^^ or the reformation of real or imaginary evils of a puhJkc na-
ture, and in which the insurgents have no special interest;
rising's to ejf^ect these ends by force and numbers are by con-
struction of law, within the clause of levying warJ*^ In short,
all the English precedents shew, that the overt acts are cases
of actual hostility of a public nature.
Vaughan's case in 5 State Trials page 37. may be consi-
dered as the strongest on this point. He had a commission
from the French king, to cruise in the vessel or barge called
the Loyal Clencarty against the subjects of England. He com-
manded this vessel under French colours, and met an En-
glish ship of superior force and struck his colours without a
battle or making any resistance. The court will observe, that
in the indictment against Vaughan, there were two counts,
one for levying war, and the .other for adhering to the king's
enemies and aiding and assisting them. Mr. Phipps, the pri*
soner's counsel objected, that there was no overt act of war
proved against him, because there was no act of hostility* But
this, objection was overruled, and he was found guilty of ad-
heringito the king's enemies, and adding and assisting them;
and it was determined that actual war must be proved under an
indictment for levying war* The opinion of the chief justice
was as follows : ^^ When men form themselves into a body and
march rank and file, with weapons offensive and defensive, this
is levying war with openforce^ \f^^^ design be public*'^ " When
a ship is armed with guns, &c., and doth appear on the coast,
watching an opportunity to burn the king's ships in the harbour,
and their design known, and one goes to them, and aids and as-
sists them, this is an adhering to the king's enemies. Here are
two indictments, one for levying war, and the other for ad-
hering to the king's enemies; but the adhering to the king's
enemies is principally insisted on; and there must be an acttud
war proved upon the person indicted in the oney yet not to be
proved in the other case*^ The court observed that the prisoner^!
counsel would make no act to be ^^ aiding and assisting j^ bat
fightings which was wrong; that they were armed and had sur-
rounded the ship twice, and nothing prevented his making an
attack, but the superiority of ^e ship by which he was taken*
They were afraid to proceed on the count which charged the
levying war, because public war and open hostility must be
590
proved, to support it; they went therefore on the other, for
adhering to, and aiding the king?s enemies.
On further consideration, I admit that perhaps the word
"^3/ic" need not be inserted in the indictment* In the English
precedents, and also in the first indictment against John Fries^
this word public is used ; but I find that in the subsequent in-
dictment against Fries it is omitted. I should only rely on the
general usage being an evidence of th<f law.
But what did the gentleman say in defining the *' levying of
warf^^ that there is no necessity for arms, nor the employ ment
of force ! that there is no necessity even for potential force to
effect the intended purpose by terror! that there is no neces-
sity for the act to be public ! that an overt act of treason^ may
be committed without arms^ without force^ either actual or poten^
tiall If this were law, there would be no safety. We know,
however, that a man may conceive a criminal intention, but
that the law. does not punish it, unless carried into execution.
But the gentleman takes away the '* locu^ pccnitenticeJ*^ Men
might be misled from their duty as citizens, and induced to
agree to resist the government and levy war, but before they
proceeded to action, might repent^ from prudential or patriotic
motives; but according to the doctrine of the gentleman on
the other side, they could not retract. The intention once
formed, though without reflection, and though soon followed,
after deliberation^ by sincere repentance, would be as severely
punishable, ^as the actual execution of the treasonable design.
A man who had agreed to join in a treasonable project, but
repented and never joined the party, would be punishable as
highly as the traitors who actually perpetrated the crime. This
doctrine can never be correct.
He introduces another point to which I slightly adverted be-
fore. After having taken away every inducement to repentance
and reformation, he rests the innocence or criminality of the
accused on their intention to separate or not^ before the accom-
plishment of their purpose. What would the gentlemsln call
separation? Perhaps no two individuals have the same idea on
this subject. Such an indefinite, vague, indeterminate idea of
what would constitute guilt opens a door to constructive trea-
son, and is dangerous in the extreme. This definition fits no
case but this case, and must have been intended to fit it; it is
the more alarming, as it may put the safety of any individual
in the power of the government; but I hope it will be disclaim-
ed. It has never been heard of before, and I trust in God it
never will be heard of in this country again.
I will now 'make some few observations on the testimony,
from which it will be seen that there was no hostility of any
591
kind committed. In the evidence of the first witness, who was
examined as to the transactions on the island fPeter Taylor, the
gardener) there is not one expression that gives the remotest
idea of a treasonable assemblage* He saw a few men and four or
five rifles, which were perfectly innocent ; but what is more won-
dei'ful he saw some bullets run! There i^ no impropriety in
running bullets, if the object be not criminal; the rifles were of
no sort of service without the bullets; but they had a little
powder! Of what use would their bullets be without powder?
The quantity of each was so very limited as to answer no
other than innocent purposes. He saw no military array or
parade ; he saw no improper act, nothing that could be justly
construed to be criminal or unlawful in their conduct. He says
that he saw Mr. W<jodbridge in the night down with Blanner«
hassett's party at the landing; but Mr. Woodbridge denies it.
What does another of their own witnesses, Mr. Love, say? He
says they were frightened at the proclamation ; but he saw no
military parade whatever; nothing like hostility; that they were
afraid of the mob who were about to pull down Blannerhassett's
house. Has the government a right to pull down houses ?
" But they were prepared to defend themselves." Had they
not a right to do sof As the witness said, if a man struck him
a blow on the face, he had a right to return it. Mr. Woodbridge
saw no military array or hostility^ nothing criminal, tufbulent,
tumultuous or disorderly in their conduct; he saw nothing
more than was peaceful and ordinary and natural on such an
occasion.
Here Mr* Hat expressed a hope, that the court would ex«
cuse him for interrupting the gentleman. He asked if it were not
absurd to argue on one half of the testimony? He declared
that they had several other witnesses who would prove the cha-
racter of the acts on the island; and that the intention of the
party was to take possession of New-Orleans; that he never
knew a criminal prosecution interrupted in this way; only
one half of the evidence commented on, to the court, before
the other half was submitted to the jury.
Here a desultory discussion took place. Colonel Burr and his
counsel contended^ that they had distinctly understood that the
counsel for the prosecution had gone through or produced aU
their testimony relative to what was deemed the overt act, or the
transaction on Blannerhassett's island; that they had called on
them to adduce more evidence on that point if they could; that
they had answered, that they had only one or two moce witnesses,
whose evidt-ncc was to thr samcf eflect as that of the others who
had already been examined; and that as they happened to be then
592
absent, it was clearly understood they were at liberty to pro-
ceed to state their propositions to the court; and Mr. Bun-
added, that it was his desire that every thing relative to what
they called xvar^ should be first proved ; that he had permitted
many things, which were extremely improper, to be brought
forward, without objecting to them, as he wished every thing
that regarded that point to be proved; that he urged them to
prove an overt act, but that it could not be proved. He desired
to avail himself of the opportunity of shewing the defect of evi-
dence and the futility of the prosecution; and that it was ex-
pressly declared by the counsel for the prosecution, that they had
examined all theh- witnesses, except as before stated.
Mr. Hay insisted, that gentlemen were mistaken in their
supposition that there was to be no other evidence; that he had
expressly told the court and them, that it was not admitted that
there was no other evidence on this subject; that they had no
right to say that it was admitted, or to assume as a fact that there
was no other evidence; that he had other testimony, and wished
to prove the connexion between thosje who were on the island,
and those who went down to Cumberland river, and were pro-
ceedipg down the Mississippi under the command of the accused;
that for the purpose of more clearly shewing this connexion, all
the testimony bearing upon the subject, should be examined and
considered together; that he could not discern what could warrant
such an extraordinary motion as this was, to exclude evidence,
on a supposition that there was no other testimony on a particular
point, in the cause.
Chief Justice. — I understood, and it was certainly so ex-
pressed, that the testimony relating to the transactions on Blan-
nerhassett's island had been gone through, but that there was
other evidence with respect to the intention, to shew the charac-
ter and nature of the assemblage; and it is contended on the
other side that you have no right to introduce such other evi-
dence. I do not conceive the motion to be irregular. So far as it
is ai personal inconvenience to hear a lengthy discussioji), I regret
it, for the sake of others, who are affected by it; but the court feels
It to be a duty which it must patiently and cheerfully perform.
Every legal proposition which is made, the court is bound to
listen to, as well as to reflect on and determine according to its
best skill and judgment. You mean to connect the transactions
on Blannerhassett^s island, with evidence of extrinsic circum-
stances drawn from other sources. But I understood you to
state most explicitly, that as far as related to the character of
the transactions on Blannerhassett's island, you had examined all
your witnesses. I do not undertake to say, that it is proper or
593
improper to admit this other evidence, which is sought to be ex*
eluded. The couDsel for the defence say, that having completed
your Evidence as to what happened on the i9land, you cannot
connect that testimony against the accused, with proof of opi-
nions and intentions and such extrinsic circumstances happening
out of the district, sis you desire to adduce. Their arguments
may be very unsound, and if you think so, you have a right to
shew it; but to say, that they have no right to advance them^
is more than the court can undertake.
Mr. Hay said, that his object was to shew what his judgment
deemed the impropriety of the course which gentlemen had
adopted; that be had not been diatmctly understood; but that as
he did not wish to take up the time of the court, he had no ob^
jection to their going on with their observations*
Mr. WicKHAM then resumed his argument. The counsel on
the other side having proved every circumstance they could, re-
lative to the overt act, it does not appear on the £ice of it, that
what occurred on the island amounted to an act of ^ levying
-warP Their declarations, relative to the quo antmo^ are irrele-
vant, and must be confined to the assemblage itself. An intention
to commit treason is not treason itself. In supporting the pro-
position, that the act of levying war must be proved to have been
committed by the principsu before the accessory can be affected
by it, I am under the necessity of speaking of the testimony;
how can I otherwise do it?
Woodbridge saw no improper act, no hostility. Being asked
what passed between him ana Tyler, he answered, that Tyler
declared that he would not oppose die constituted authoritiear,
but that if attacked by a mob tie would not yield to it He had
a right, and every man has a right to resist unlawful aggression.
In common with every other citizen, he had a right to stand or
fall by the laws of his country. As there were no acts, his in-
tentions can only be judged by his words. None can discern what
designs a man has in his bosom.
Mr. Dana agrees perfecdy with Mr. Woodbridge. He passed
over that night in his own boat to the island; he saw nothing
hostile or improper. Though the people were in great haste to
leave the island, and though most of them were strangers tp him,
yet they manifested no alarm when he entered the hall where
they were.
Mr. Belknap saw precisely the same things, and states the
same facts, as Woodbridge and Dana. Yet during all this time,
we are told that a most bloody war raged on the island.
But Mr. Poole was employed by the governor of Ohio to ap-
prehend Blannerhassctt. But even hh evidence proves nothing
like hostilitv. He thinks that some of the men nad guns. He
Vol. I. ' 4 F
594
»
heard expressions about calling for a boat; that when a boat whs
called for from the Ohio side, the answer was, what boat? and if
the reply were, " Ps boatj^ that a boat M^ould be immediatdly
sent oflf, that otherwise it would not He thinks the word was
^* Ps boat^^ or something like it, and that it was a watchword or
countersign. He was half a mile from them and it was a dark
night. He therefore might be deceived in his vision or hearing^.
Tyler's boats were there. It might be a- mere private signal
among themselves, which might have been necessary to prevent
mistakes, as they were using great dispatch to leave die island,
in order to avoid the attack of a mob.
But they have one more witness, Jacob AObrighU It is im«
possible, that this man's testimony can be true. But the testi-
mony of one witness, however correct, is not sufficient to esta-
blish the overt acU There must be two witnesses for that
purpose. But his evidence is contradictory and incredible. He
proves one act of hostiUty against general Tupper, whom they
did not choose to examine, though attending here to give Yob
evidence. They would have examined him, if they had believed
that he would have confirmed Allbright's evidence. Their not
doing it, proves that they thought he would have contradicted
Allbright. He says, that Tupper laid his hand on Blannerhas-
sett, in the name of the commonwealth, and that immediate^
seven or eight muskets were pointed at him. Yet no warrant
or authority was shewn by him; and that he had no such autho-
rity must be presumed, as he was from Ohio. For against what
state was the treason committed? It was treason against Virginia,
if it existe)d at all; Blannerhassett had aright to resist, if Tupper
had no warrant; and this evidence of his arresting a man is
without the production of any authority whatever; and yet tlus
is called resistance to law. But even if he had a warrant, and
had been opposed in attempting to serve it, it would not have
been treason; resistance to process is not treason, though a fgctzt
oflFence.
But he had sworn before, that those who levelled their guns at
Tupper were not in earnest; and he now admits, that he does
not know that they were in earnest, as *^ there was no quarrel
among them, and no firing afterwards."
He mentions another circumstance, which, connected with
the rest of his evidence, is equally incredible; that he saw at
different times a number of guns equal to the whole number
of men. He acknowledges that he did not see the men all with
arms at once, and that he did not know the men who had guns,
nor could he tell the number of guns ; how then could this man
venture on his oath to say, that he had not seen the same arms
at different times, in the hands of different persons? It is obvious
from his own statement, that this might have been the case, and
595
therefitnre no confidence ought to be put in what he says* If this .
be an overt act^nny thing that any government chooses to consider
as such, may be an overt act.
But the counsel on the other side seems to think that the doc-
trine of treason may be extended, because no danger can be ap-
prehended from it in this free country. This argument may be
very sound, if compared with his other argument, that a majo-
rity of the people are always right.
In every free country there is more occasion for guarding
against factions, than in a despotism. It is an evil in the very
nature of free governments, as every thing good in human in-
stitutions has its attendant eviL WhUe it is the effect of political
freedom, it has ever been the cause of its extinction. We ought
to profit by the experience of other nations, and repress that into-
lerance and party spirit, which progressively but certainly lead
to despotism; in producing which, the most dangerous and suc-
cessful engine has always been the doctrine of constructive
treason. In a despotisiki there are no factions or civil commo-
tions. There are nq factions in the camp or army of Bonaparte.
But in this, as well as in every' other free country, parties strug-
gle for power; the popular endeavouring to crush the unpopular
party. Hence the danger of departing' from correct princi]des,
which in such a struggle are too often disregarded. I have now
gone through every^ point, which I meant to submit to the con-
sideration of the court. The importance of the question, is very
great, not only as it concerns my client, but every man in this
country, i will only observe to the counsel, that, as I have en-
deavoured to support they must oppose my arguments, on ab-
stract principles, which must be tested, by reason and truth.
These principles must be just and true at all times, and in all
places, without reference to particular persons or circumstances,
and are intimately connected with the public liberty* and happi-
ness. If the principles for which I have contended be correct,
diis prosecution cannot succeed: it appears to my judgment,
that if they be disregarded, and the doctrines supported by the
gentlemen on the odier side prevail, these will be the conse-
quences:
First. If a man can be indicted as being present^ for overt
acts, committed by others, when he was absent in a different
state and district, the constitution of the United States, which
was so ably and carefully drawn up, in order to secure and
perpetuate the freedom of the people of this country, will be a
dead letter. A citizen may be seized by military force, dragged
from one end of the continent to the other, tried far from his
family and friends, where he is a stranger, at a place where he
never was, and among people whom he never saw; nay more,
Secondly. He is to be tried without any notice in th^ indict-
f
596
mcnt of the real nature of the charge against him,, or nvhere t}ie
v/ar was, which he is accused of levying. The indictment against
him states, that he did the act himself, when in truth hs was
hundreds of miles distant from the scene of action, and the act
charged against him was done by others.
Thirdly. The doctrine of the cruel JeiFeries is to be applied
against him. He is to be tried for an act done by another, with-
out producing a record of the conviction of that other, for whose
alleged guilt he is to suffer.
Fourthly. The law of treason^ and the rules concerning it, as
heretofore universally considered, are totally misunderstood. A
new definition of treason is adopted. The levying of war may
be secret^ without arms, without force, without any overt act.
AJl these arguments will apply, not to this case only, but toevery
case that may happen in any part of the United States. These
will be die certain consequences of the doctrines contended for by
the gendemen on the other side, if sanctioned by thb court. Will
they seriously contend for doctrines, that will expose all the
people of this country more to the dangers of constructive
treason, to greater oppression and hardships, than the people of
any other coimtryhave ever been subjected to? Certainly they
will not. The records of this trial will be a monument of an ttt-
tempt to establish principles that must infallibly introduce sla*
very. The attempt cannot succeed. But while I thus speak of
the principles themselves, God forbid that I should make the
smallest reference to the conduct of the government, or the mo-
tives of the gendemen on the other side. I disclaim 4 personal
allusions, which must be without reference to the merits at all
times, and frequently tend to substitute invective for argument.
I believe the government will disclaim all agency in the busi-
ness, and that if they wish the accused to be convicted, still they
only wish him to be convicted according to law.
Will gentlemen advance doctrines which the government will
disclaim? If indeed it were possible, that they wbhed to con-
duct the prosecution on principles that would destroy the liber-
ties of their country, those which they have advocated would
certainly produce that dreadful effect; for it is obvious they have
a direct tendency to root out and destroy every principle of
freedom; but I trust they will never be sanctioned in this countn*.
END or FIRST VOLUMF.
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