Aaron Burr.

Trial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) online

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custody, or required to give security for his appearance
while his examination is depending. The amount of the
security to be required must depend, however, upon the
weight of the testimony against him. On a former
occasion Mr. Burr was held to bail for his daily appear-
ance in the sum of five thousand dollars only, because
there was no evidence before the judge to prove the pro-
bability of his having been guilty of treason. When the
examination was completed, the sum of ten thousand
dollars was considered sufficient to bind him to answer
the charge of a misdemeanor only, because the constitu-
tion requires that excessive bail should not be taken ;
but that recognizance had no application to the charge
of treason. Yet, whether additional security ought to
be required 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 woultl
seem that evidence sufficient to furnish probable cause
must first be examined before the accused can be
deprived of his liberty, or any security can be required
of him. Yet, before this could be done, he might escape
and defeat the very end of the examination. . In com-
mon cases, where a person charged with a crime is
arrested and brought before a magistrate, the arrest
itself is preceded by an affidavit which 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 Mr. Burr is not in custody for that offense. The
evidence then must be heard to determine whether he
ought to be taken into custody ; but as the present pub-
lic and solemn examination is very different from that
before a single magistrate ; as very improper effects on
|-he public mind may be produced by it ; I wish that the



86 TRIAL OF AARON BURR.

court could be relieved from the embarrassing 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 appearance of.Mr. Burr could be
secured without the necessity of proceeding in this in-
quiry.

Mr. Burr rose, and observed that he denied the
right of the court to hold hhn to bail in this stage of the
proceedings; that the constitution of the United States
was against it ; declaring that no person shall be ar-
rested without probable cause made out by oath or af-
firmation. But if the court were embarrassed, he would
relieve them by consenting to give bail ; provided it
should be understood that no opinion on the question
even of probable cause was pronounced by the court,
the circumstance of his giving bail.

The chief 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 fear-
ing that public prejudice would thereby be excited
against Mr. Burr, he believed it would remove all the
prejudices of that sort which now prevailed.
. The Chief Justice: As a bill will probably be sent up
to the grand jury, the court wished to declare no opinion
either way.

Some conversation then occurred relative to the quan-
tum of bail ; and Mr. 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 the offer made by
Mr. Burr ; who after a short interval, entered into a re-
cognizance with four securities, to wit, Messrs. Wm.
Langburn, Thomas Taylor, John G. Gamble, and Luther
Martin ; himself in the sum of ten thousand dollars, and
each security in the sum of two thousand five hundred
dollars, conditioned that he would not depart without
leave of the court.



MOTION TO ADJOURN. 87

MONDAY, JUNE i, 1807.

The grand jury having been called over, Mr. Hay ob-
served tjiat he felt great embarrassment and difficulty as
to the course which ought -to be pursued ; he had con-
fidently expected the arrival of General Wilkinson, and
was disappointed. He was, therefore, unwilling to sub-
ject the grand jury to the inconvenience of further
attendance ; but he thought it proper to inform the
court that he had this morning received a number of
affidavits of witnesses, residing in the neighborhood of
Chillicothe, and of Blannerhasset's island, which bore
directly upon the charge of treason against Mr. Burr.
Those affidavits, however, had been taken in such a man-
ner, that according to the opinion lately given by the
court, concerning the affidavit of Jacob Dunbaugh, they
were not admissible as evidence, and would not be per-
mitted to be read. He expected to hear from General
Wilkinson (if he should not appear in person) by the
Lynchburgh mail, which he understood would arrive on
Wednesday morning. He, therefore, hoped that the
grand jury would not be unwilling to make a further
sacrifice of a portion of their time for the public good,
and would consent to wait with patience.

WEDNESDAY, JUNE 3, 1807.

The names of the grand jury being called over, they
retired to their chamber. A few minutes after, the at-
torney for the United States entered, and observed that
he had a proposition to submit to the court, which he
wished the grand jury to hear. He requested, therefore,
that they might be called in.

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 from 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 arrangements of
the opposite counsel ; that he had just made a calcula-



88 TRIAL OF AARON BURR.

tion with his friend the marshal, which satisfied him that
General Wilkinson had not, perhaps, sufficient time to
reach this city. The distance from New Orleans, on the
map, was about 1,370 miles; if he came by land, he must
travel on horseback ; 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 city. This calculation would bring him
to the I4th or I5th of this month. He was, therefore,
willing, if it suited the wishes of the opposite counsel, to
have the grand jury adjourned for about ten days; that
General Wilkinson's situation called upon the court to
make this arrangement ; he need not expatiate upon the
importance of his official duties, nor the perilous con-
dition of that part of the country, where the head of an
army ought always to be present ; that General Wilkin-
son should be detained here as short a time as possible ;
and, that it would be particularly inconvenient for him
to stay here until the meeting of an intermediate court
for the present trial ; that it was, therefore, the interest
of the United States to have the trial concluded during
the present term ; and, that he had no doubt the very
same considerations would lead every member of the
grand jury cheerfully to submit to any private incon-
venience which they might sustain, but punctually to re-
turn at the time appointed by the court.

The chief justice observed that there could be no dif-
ficulty on the part of the court.

Mr. Hay. General Wilkinson's situation, as a com-
mander-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 affairs in that part of the union are also in a very
unsettled 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 approba-
tion of Mr. Burr and his counsel.

Mr. Wick ham owned that this communication some-
what surprised him, as Mr. Hay had, but a few days



MOTION TO ADJOURN. 89

before, announced to the court, from a letter of the
secretary of war that General Wilkinson would be here
between the 28th and 3Oth of May.

Mr. Hay observed that the letter from General Dearborn
admitted of an easy explanation; that according to Mr.
Minnikin's affidavit, the express could not have reached
New Orleans 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 Washington on a certain day, and of
course his reaching New Orleans on a certain day. That
Mr. Minnikin's affidavit had shown the calculation to be
not altogether, correct ; that Mr. Minnikin had, therefore,
given him some information, which General Dearborn
could not have possessed. Mr. Hay was sorry he could
not inform the court how General Wilkinson traveled,
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 in-
convenience 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 grand jury. The court would observe that it seemed
desirable, in every point . of view, that this business
should be closed during the present term ; that a number
of witnesses were now present, 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. Wick ham had no doubt himself, that if General Wil-
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 ad-
journed to some distant day, the great difficulty would
be to collect them all again at the end of the time ap-
pointed ; and that if General Wilkinson was to come at all,



9 o TRIAL OF AARON BURR.

he may be expected here every day ; and that of course
it was better to adjourn the grand jury only from day to
day.

Mr. Hay 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 escorted Mr. Burr, left Fort
Stoddert about the 23d or 24th of March ; but he him-
self did not reach this city before the thirty-third or
thirty-sixth day. Now, Mr. Perkins certainly traveled
with greater advantages then General Wilkinson would ;
as he pressed or purchased horses to expedite his jour-
ney. Admit, then, Mr. Perkins used due diligence (and
he has been even charged with too much), how can Gen-
eral Wilkinson be certainly 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 traveled.

At this moment the grand jury returned into court.

Mr. Hay 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 concluded if possible during your
present session. I have moved the court that you be
called again at the end of ten days or a fortnight. My
calculation is, that General Wilkinson can not be here
before the I4th or i$th 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 hitherto marked your con-
duct. I am therefore anxious to consult your own con-
venience as much as possible ; and I wish- to know at
what time it will be most convenient for you to return
to this place,- if you are adjourned to a distant day.

Mr. 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.



MOTION TO ADJOURN. 91

Mr. Burr observed that there were manifest incon-
veniences in the measure proposed. He had, for in-
stance, a number of witnesses here from a distance ;
would it not be inconvenient for them to be kept here ?
Certainly, however, they must be detained ; 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 distance as Mr. Wilkinson is to come ; but he per-
formed his journey in thirty-one days. What we want,
however, is some data from the government on this sub-
juct ; such, for instance, as the time when the express
left Washington. As to Minnikin's affidavit, 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. Mr. 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 3Oth of May ; allowing, however, six,' days more
than he said, Mr. Wilkinson may be expected here to-
morrow.

Mr. Hay observed that it was of no sort of importance
to 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 proposition for the
accommodation of the grand jury. If gentlemen 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



92 TRIAL OF AARON BURR.

of May. If General Wilkinson traveled by land, he would
not come so expeditiously as Mr. Perkins, because Mr.
Perkins had exhausted the frontier parts of Georgia of
its horses. Such, at least, was Mr. Minnikin's represen-
tation. f

Mr. Martin submitted to the court, whether it was not
better to adjourn the jury from day to day. Any calcu-
lation 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 him-
self the convenience of frequent relays of horses. And
suppose 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 situation
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 notwith-
standing 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 to defend.

Mr. Wickham stated 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 post from 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 fortnight ?

The chief justice said that he was fully impressed with
the patience which the grand jury had manifested ; per-
haps Monday next would be as convenient for them as
any other day, to reassemble.

Mr. Wickham expressed his opposition to their ad-
journment ; for although the jury had hitherto exhibited
so much patience, yet if they retired home, some one



ADJOURNMENT. 93

might find his domestic affairs in such situation as to
think himself excused from further attendance.

CJiief Justice. Gentlemen of the grand jury, you will
attend here on Tuesday next, at two o'clock.

TUESDAY, JUNE 9, 1807.

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 con-
tained in a Norfolk paper (The Public Ledger) received by
the mail of this morning; a paragraph of which stated
that a vessel had arrived there in twenty-seven days
from New Orleans, and that at the departure of the
vessel from the latter place, which must have been
about the nth of last month, General Wilkinson was
still in New Orleans ; and nothing was said as to his in-
tention of leaving it. He said that he had confidently
expected General Wilkinson here before this time ; but
that he might have been led into the mistake 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 directly to him, and he would have nothing to
do but to prepare for his journey to this place ; he
wished the subject might be postponed fora 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 were here ; that he was sorry to be forced
to make so many apologies to the grand jury, who had
already manifested so much patience ; but he begged
them to recollect the extreme importance of the present
trial, and that it would, perhaps, be the last time that
they would be placed in this situation.

Mr. Burr hoped the jury would be adjourned for as
short a time as possible ; at all events not longer than
Thursday.



94



TRIAL OF AARON BURR.



Chief Justice, This is Tuesday; the attorney for the
United States can not probably expect General Wilkin-
son before Thursday, if he comes by water.

Mr. Hay knew not how he was to come ; if by water,
he certainly could not be expected before that time ;
and if by land, he would certainly require one day to
recover from the fatigue of traveling.

The chief justice then observed to the grand jury that
they were adjourned till Thursday, ten o'clock.

Mr. Burr then addressed the court. There was a prop-
osition which he wished to submit to them. In the
president's communication to congress, he speaks of a
letter and other papers which he had received from Mr.
Wilkinson, under date of 2ist of October. Circum-
stances had now rendered it material that the whole of
this letter should be produced in court ; and further, it
has already appeared to the court in the course of differ-
ent examinations, that the government have attempted
to infer certain intentions on my part from certain trans-
actions. It becomes necessary, therefore, that these
transactions should be accurately stated. It was, there-
fore, 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 pur-
pose, when I passed through Washington lately, that I
addressed myself to Mr. Robert Smith. That gentle-
man seemed to admit the propriety of my application,
but objected to my course. He informed me that if I
would apply to him through one of my counsel, there
could be no difficulty in granting the object of my appli-
cation. I have since applied in this manner to Mr.
Smith, but without success. Hence I feel it necessary
to resort to the authority of this court, to call upon them
to issue a subpoena to the president of the United
States, with a clause requiring him to produce certain
papers, or in other words, to issue the subpoena duces



MOTION TO PRODUCE PAPERS. 95

tecum. The attorney for the United States, will, how-
ever, save the time of this court, if he will consent to
produce the letter of the 2 1st October, with the accom-
panying papers, and also authentic orders of the navy
and war departments.

Mr. Randolph observed that he knew not whether it
was necessary for him to support Mr. Burr'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, unless it were made
through one of his counsel ; that he had himself, therefore,
addressed a letter to Mr. Smith, informing him of Mr.
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 Mr. Burr, and as it contained information material
to him, he had shown it to Mr. Burr.

Mr. Randolph regretted that he had not the letter
then about him ; but the substance of it was, that the
order which had been alluded to was only for the officer
to whom it had been addressed, 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 two reasons, that it had already appeared in a
Natchez Gazette, and that Mr. Van Ness, the friend of
Mr. Burr, had informed him of Mr. Smith's uncondi-
tional promise to furnish the order, if he were properly
applied to for it.

Mr. Burr observed that to avoid all possible miscon-
ception, he thought it proper to state that Mr. Van Ness
had assured him of Mr. Smith's positive and unqualified
promise to furnish the answer, if applied for through
counsel.

Mr. Hay declared that he knew not for what this in-
formation could be wanted ; to what purpose such evi-
dence 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 2 1st of October is



96 TRIAL OF AARON BURR.

spoken of; but has this letter been yet identified? He
hoped that the court would not issue the subpcena duccs
tecum, until they were satisfied that they had the author-
ity to issue it, and that the information required was
material in the present case.

Mr. Wickham observed that the present was simply
intended 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 necessary to the elucidation of the case.

Chief justice observed that all delay was obviously
improper; that if the papers were wanted, they ought to
be obtained as soon as possible, and not, perhaps, delay



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 10 of 64)