Aaron Burr.

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

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the ulterior stages of the prosecution.

Mr. Hay stated that he had already received a com-
munication from Mr. Wickham on this subject, and in-
tended 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, and the
order from the navy department ; but in his own opinion,
they no more related to the present prosecution than the
first paragraph of the first page of the acts of congress.

Mr. Hay repeated that if the gentlemen would furnish
him with a list of such papers as they wanted, he would
attempt to obtain them, if the court thought them ma-
terial. 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
already.

Chief justice observed that it was impossible to deter-
mine 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



MOTION TO PRODUCE PAPERS.



97



agreement, he should then wish to hear some argument
on the subject to satisfy him whether the court had the
right to issue a subpoena duces tecum.

Mr. Burr observed that he had been told it was the
constant practice in this state to issue such subpoenas l
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 materiality of his testi-
mony should be fully shown. If papers are to be ob-
tained from a clerk's office, such a subpoena 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 the president might just transmit the papers wanted
by mail.

Mr. Hay observed that Mr. Martin's remark super-
ceded any further proceeding. Why apply to the court
to issue a subpoena 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 entertained.

Mr. Hay said that no application had yet been made
to the secretary of state, for General Wilkinson's letter ;
nor to the department of war, for its order.

Mr. Martin. If one department refuses, we may pre-
sume that the others will.

Mr. Burr. If the gentleman grants our demand, he
may propose any alteration in its form that he pleases.

Mr. Randolph. 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. Wickham. Mr. Burr's counsel know little of the
importance of these papers, but from himself ; and from
that, they are fully persuaded of their great importance.
7



98 TRIAL OF AARON BURR.

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 application will be
successful. But, sir, at Washington they may entertain
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 delay, 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 wish 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 everything that I have prom-
ised ; let gentlemen, sir, take their own course.

Mr. Wickham. We wish to confront him with his
own letter.

Mr. Hay. Perhaps they may not be able to remove
the original, as it is already filed in the department of
state.

Mr. Martin. We are ready to go on with the dis-
cussion.

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 gentlemen, then, want is ad-
dressed to Thomas Jefferson. Have they a right to
demand any but public letters?

Mr. Martin. The president's message said it was
addressed to him as president of the United States.

Mr. Hay. If it be a public letter, it is of course
deposited in the department of state. I have no objec-
tion 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 prelimin-
ary stages ; and that such arrangements may be adopted
as will prevent this useless consumption of time.



MOTION TO PRODUCE PAPERS. 99

Mr. Randolph had no reason to believe that there had
been more delay on his side than on the other ; that if
time was to be consumed at all, more would be em-
ployed 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.

Mr. Botts. We are unanimous on this point, I am
sure. Sir, I can not sit down and hear complaints
so unnecessarily repeated 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 other gentleman ; and each speech
longer than those of other persons; and yet we can not
open our mouths, without his sounding loudly his com-
plaints to the ears of this hall. On this case of unequal
magnitude, shall we not be suffered to declare our opin-
ions without this unnecessary complaint about the con-
sumption of the court's time? We feel the magnitude
of 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 shall be silent.

Chief Justice. If the attorney for the United States
is satisfied that this court has a right to issue the sub-
poena duces tecnm, I will grant the motion.

Mr. Hay. I am not, sir.

Chief justice. I am not prepared to give an opin-
ion on this point, and, therefore, I must call for an
argument.

Mr. Hay. When I said that there had been a great
consumption of time, I certainly did not mean to insin-
uate that they only consumed it. I have certainly had
my full proportion. I thought, however, that my prop-
osition would have saved some time ; and I am still will-
ing to repeat my promise.

Mr. Randolph. That the court may understand us, I
will read to them the form of the subpoena which we
wish to obtain. [Here Mr. Randolph read the sketch
before him.]



ioo TRIAL OF AARON BURR.

Mr. Botts. We will be under the direction of the
court, whether we shall proceed in the argument to-day
or to-morrow.

Chief Justice. Unquestionably there must be an ar-
gument, if the attorney for the United States disputes
the authority of the court to grant the motion.

Mr. Hay. Whatever other gentlemen may think on
this subject, I have not the least doubt that these papers
will be produced, because Mr. Robert Smith has volun-
tarily furnished me with the order of the navy depart-
ment. But although I may procure these papers, let it
be distinctly understood, that I shall object to their being
unnecessarily produced.

Mr. Botts. It will take four days at least to inter-
change letters 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 meantime, thirty or
forty witnesses, and sixteen grand jurymen (they might,
perhaps, require them) would be detained here ; and after
all, the attorney's application to the government might
be unavailing.

Mr. Hay. Since the gentlemen, sir, will press this
subject, I ask no more than that they will waive this dis-
cussion till to-morrow.

The court was then adjourned till to-morrow eleven
o'clock.

WEDNESDAY, JUNE 10, 1807.

The court met according to adjournment.

The subject of the subpcena 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 reason
to believe that a letter from General Wilkinson to the
president of the United States, dated 2ist October,
1806, as mentioned in the president's message of the 22d
January, 1807, to both houses of congress, together with
the document 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 defense, in the prosecution against him. And fur-



MOTION TO PRODUCE PAPERS. 101

ther, that he hath reason to believe, the military and
naval orders given by the president of the United States,
-through the departments of war and of the navy, to the
officers of the army and navy, at or near the New
Orleans station, touching or concerning the said Burr,
or his property, will also be material in his defense.

"AARON BURR.

" Sworn to in open court, loth June, 1807."
Mr. Hay begged leave to give notice to the court and
the opposite counsel that in conformity to the informa-
tion which he had yesterday given, he had addressed a
letter to the president, 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 de-
termined their materiality. He hoped to have them in
his possession in five days. He should, however, object
to the affidavit produced, and to the right of Mr. Burr
to make the motion at the present time. It was a pre-
liminary question, which he wished first to be deter-
mined, whether any man, standing in Mr. Burr's situation,
had a right to make such a motion. He believed the
fact to be that 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 several preliminary
points, which he should be obliged to submit 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 government, that every neces-
sary 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
gentlemen ; he assured them that if General Wilkinson



102 TRIAL OF AARON BURR.

should come, they would have a splendid opportunity
of displaying them to their hearts' content. He re-
quested them once more to deliberate on his propo-
sitions.

Mr. Martin assured the gentleman that there was no
need for further deliberation ; that it was strange that
the gentleman should complain so much of the con-
sumption 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 sub-
mit. 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 impossible
for him to search their hearts, and that he was sure 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.

Mr. Wickhatn observed that Mr. 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 certain 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 were confidential, would it not
be easy to make an indorsement on such as the president
would not wish to go out of the court ? That, however,
Mr. Hay's promises might be unavailing : at Washing-
ton they might entertain very different views from him.
As to the opportunity of displaying talents, nothing
would be better calculated to defeat that object than for
the attorney for the United States to give his consent
that process should issue.

Mr. Hay. The motion now made by Mr. Burr, as far
as he could understand it, was to obtain from the court a
subpcena to the president of the United States, to attend
this court with an original letter written to him by General
Wilkinson, and referred to in his communication to con-
gress, of the 2/th January, 1807. He contended that it
was premature ; that Mr. Burr was not authorized to
make it by any legal precedents that could be shown, or
by any statute in force in this country, while he remained



MOTION TO PRODUCE PAPERS. 103

in his present situation. What was that situation ? He
had been committed for a misdemeanor, and recognized
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 Mr. Burr applies to
this court for a compulsory process or a subpoena duces
tecum, to the president of the United States, command-
ing him to attend with certain papers, and if he does
not attend, or the papers are not produced, the court
may then be applied to, to issue an attachment against
him.

Now, I contend, said Mr. Hay, that no individual
charged with a crime, has any right to legal process,
until the grand jury have found a true bill, and the pros-
ecutor has announced his intention to proceed there-
upon. Gentlemen will please to point out in the con-
stitution 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 prece-
dent to justify this attempt. The acts of congress supply
them with no authority ; and there is nothing in the
constitution which relates to the subject, except the
eighth amendment, which most obviously refers to a dif-
ferent stage of the prosecution from this. " In all crim-
inal prosecutions, the accused shall enjoy the right to
a speedy and public trial, &c.- -to have compulsory
process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defense." Will gentle-
men contend that this clause relates to any of the prelim-
inary 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 " a fair and impartial trial," not on the ex-
amination before the examining magistrate, but on the
trial before the petit jury. When the trial commences, it
is then that the accused is to be confronted with the wit-
nesses against him ; it is then that he is entitled to com-
pulsory process for obtaining witnesses in his favor; it
is then that he is to have counsel for his defense. It is



104 TRIAL OF AARON BURR.

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 dis-
trict, but celebrated counsel from other states. It is
true also, that the clerk of this court has already issued
subpcznas ; but these subpcenas 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 business to
make the present application to the court? But let us
suppose that they have obtained what they require ;
that this subpana has issued, and that the president is ,
here : that he has been called to this court from Wash-
ington, where national concerns of such deep weight
and importance are entrusted to his guidance ; what
then?

Mr. Wickham begged leave to interrupt Mr. Hay. It
was not in fact a subpcena for the president, but only for
certain papers which they required.

Mr. Hay. Even that supposition does not remove
the prematurity of the present motion. I ask what is to
be done with these papers, if brought hither by this
subpoena ? If the president 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 gentleman can not answer
this question. / only am competent to answer. And
why? Because no kind of use can be made of this evi-
dence until I have laid my bills before the grand jury,
and until they have found them to be true. Will gen-
tlemen proceed on such calculations ; that the bills will
be sent up and that they will certainly be found to be
true bills? If General Wilkinson 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



MOTION TO PRODUCE PAPERS. 105

records of this court indicate any particular day when
the trial is to commence ? Sir, such a nomination would
be completely arbitrary. Let an indictment be first
found, and a day set for the trial ; and on that day pro-
cess 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 waves. The very language of the process Con-
firms this argument. How could the evidence be heard
before the accused is put upon his trial ? Perhaps it
may be 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 second 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 very situation. Now,
if such an application had been made to your honor out
of doors, is there any law in America (or in any other
part of the civilized world) to justify a postponement of
the examination until a subpocena has been granted ? It
is true that evidence on both sides has been sometimes
produced; but this took place when the evidence hap-
pened to be present ; but there does not exist a single
precedent, in all the annals of jurisprudence, where the
course of an examination has been suspended by an ap-
plication for subpcenas, and the writing for the witnesses.
The present motion, therefore, is manifestly premature.
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 process. Why were they not sooner ap-
plied for? Though there had been some correspondence
between Mr. Randolph and Mr. Smith, about an order
from the navy department, yet never before yesterday
was the materiality of General Wilkinson's letter sug-



io6 TRIAL OF AARON BURR.

gested ; although it had been publicly known to exist as
long ago as the 2/th of January. The accused and his
counsel -knew this, yet they never made any attempts to
obtain it, or ever stated its materiality.

Mr. Wick ham 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 messenger to Washington, to ob-
tain instructions directing them how to act ; but if the
saving of time was an object with the 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 least employed, if the ex-
pectations of the attorney for the United States should
turn out to be fallacious, and his application at Washing-
ton should prove to be unavailing. 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 directly to
the court. They were more willing, too, to prefer this
course, as they did not wish the presence of the presi-
dent, but only of certain papers ; and it was not there-
fore their wish to obtain a common subpoena for his
person, but a subpoena duces tecum for those papers.

This is the first time I have heard, since the declara-
tion 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 await the decision of his own witnesses?

But at what time are we to be entitled to these priv-
ileges ? At the period of Mr. Burr's transportation?
That is a most unwarrantable proceeding ; there is no
such case recognized by the constitution ; and therefore
there could be nothing in that constitution to give us the
ri^ht of founding any judicial proceeding on such a step,
But, sir, such an illegal transaction entitles us to still






MOTION TO PRODUCE PAPERS. 107

more ; it entitles us to the protection of every citizen in
the country, as well as of this court. Suppose that Mr,
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 magis-
trates 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 prece-
dents. But I will quote, sir, another trial, which was
similar in its proceedings, and similar, I trust, in its re-
sults. I refer to the cases of Smith and Ogden, before
the circuit court of New York. Subpoenas were actually
taken out, before the trial, for Messrs. Madison and
Dearborn ; and even the expenses of their traveling
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 serv-
ing these subpoenas, and the proof of offered compensa-
tion. The argument at length closed on this motion for



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