Aaron Burr.

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

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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 subpoenas : but on the at-
tachment, 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 this 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 bills 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 defense? The attorney for the United States


triumphantly 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
Mr. Burr move for his discharge? As he is to remain
here until the court pleases to discharge him, may he
not move for his recognizance to be discharged? Have
we no right also to all the 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,
then, that the court has a right to issue a subpoena ; and
yet, because there happens to be particular provision
about the day, this right must be 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? Yes, sir, it is asked of us, why we have not
made this application sooner; and yet even now does
the gentleman wish to delay it. He declared that we
have made it too soon ; and yet now he declares that
we have made it too late. Now, it can not be both .
if it be too late, it certainly can not be too soon.

We have heard some remarks upon Mr. Burr's priv-
ileges ; 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 shall find,
there is one attorney for the United States appropriated to
each district ; and yet there are no less than three coun-
sellors 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 gentlemen complain of my client making such ar-
rangements as may suit his convenience or his interest ?
But what are all these remarks to the subpoena duces
tecum? Sir, it is useless to multiply arguments on this
subject. It is a settled rule, since the ancient times of
King John ; since the formation of magna charta itself,
that the accused has a right to subpoena 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. Hay asserted that this extract did not prove the
position contended for; that there was no case of a sub-
poena having issued before the finding of an indictment ;
that if the clerk ever had issued them, it was a mere
voluntary unauthorized act. He challenged the ex-
perienced 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 that if there were no precedents
on this very point, it was because this objection never
was made before, and he hoped never would be made

The chief justice observed that he would not at pres-
ent deliver any decided opinion upon the point, though
he was disposed to believe that the accused had a right to
apply for subpoenas. 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,
however, observed that he should not decide this ques-
tion at present, but reserve it for future decision ; in the
meantime the counsel might proceed with the other part
of the argument.

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. MacNally's Evidence, vol i. p. 255. Does
there exist a single case in the British authorities in
opposition to this doctrine? Surely these gentlemen do
not intend to represent .the president as a kind of sove-
reign, 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 give 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 man-
ual is received as authentic evidence.


Chief Justice. The counsel on the opposite side admit
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 attend with certain
papers. One of them we want is an original letter from
General Wilkinson, of the 2 1st October, and received by
the president on the 2/th of November. This letter, as
appears by Mr. Burr's affidavit, is considered by him as
necessary to his defense ; and his counsel, so far as they
understand the subject, are of the same opinion. The
other papers are copies of official orders by the navy and
war departments. It may be said, sir, that if application
were made to those departments, Mr. Burr had a right to
the papers : for we had supposed that every citizen was
entitled to such cqpies of official papers as are material to
him. And I have never heard of but one instance where
they were refused ; and this was most certainly under
presidential influence.

I have asserted that Mr. Burr was entitled to a copy of
these orders. We intended to show that these orders
were contrary to the constitution and the laws, and that
they entitled Mr. Burr to the right of resistance. We
intended to show that by this particular order his prop-
erty 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 originals themselves. But we did apply for
copies ; and were refused under presidential influence.
In New York, on the farcical trials of Ogden and Smith,
the officers 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 applied to the secretaries of state, of the navy, and
war, I can not say. All that we want is, the copies
of some papers, and the original of another. This is a
peculiar case, sir. The president has undertaken to pre-
judge 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 proclaimed him a traitor in the face of that coun-
try which has rewarded him. He has let slip the dogs of
war, the hell-hounds of persecution, to hunt down my
friend. And would this president of the United States,
who has raised all this absurd clamor, pretend to keep
back the papers which are wanted for this trial, 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 is necessary for his defense. And whoever with-
holds, willfully, information that would save the life ot a
person charged with a capital offense, is substantially a
murderer, and so recorded in the register of heaven.
Can it then be presumed that the president would be
sorry to have Mr. 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 Mr. Burr is the victim of anger, jealousy, and
hatred ? Will he not act with all possible candor ?
When told that certain papers are material to our de-
fense, will he not be proud to say to us, " Sirs, you may
have them ; I will grant you every possible advantage."
Had this been done, the attorney for the United States
(and perhaps the executive) never would have said that
these papers are no more material to us than the first
paragraph of the laws 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 whether it is to
go before the petit jury, or to come before themselves, 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 Mr. Burr's counsel, which they would themselves
disdain ? Why not do as much honor to ourselves, as to
the president of the United States himself?

It may be suggested that this is a private and con-
fidential letter from General Wilkinson to the president.
It was so said, indeed, yesterday. But if the president


were here himself, the court would have a right to de-
mand, whether in confidential conversations General
Wilkinson had not given very different statements from
those which he might here produce ? What, sir, if
General Wilkinson had reposed as much confidence, if
he had instilled as much poison into the ear of the pres-
ident, as Satan himself breathed into the ear of Eve ; the
president would have been still responsible to a court of
justice, and bound to disclose his communications. Th.e
law recognizes none of this kind of confidence. I refer
your honors to 2 Atkins, 524, from which it appears
that no man is privileged to withhold secrets, and to
II State Trials, Duchess of Kingston's case. There a
physician entreated of the court to excuse him ; but
even his professional confidence (though of the most
delicate nature) would not screen him. Lord Barring-
ton in that case conjured them to excuse his giving in
testimony what had been disclosed to him in all the con-
fidence of private friendship. All his solicitations were
disregarded. In MacNally, page 250, it is declared that
there can be no secrets, but those which are confided to
counsellors and attorneys. Now let us suppose that this
information was conveyed 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 mak-
ing too free with high characters ; that we call the
honor of General Wilkinson into question ; and that it
is not less than treason to suppose it possible that Gen-
eral Wilkinson is not as pure as an angel. But, sir, will
it be forgotten that this man has already broken 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 possible to believe that such a man may not swerve
from the strict line of rectitude and decorum ? To show
the ease with which one man may be destroyed by
another man or by a faction, and with the same unfeel-
ing indifference as a philosopher sees rats struggling in
an air pump, I will read a quotation from Tucker's
Blackstone. [Here he read it.] Mr. Martin produced


several instances, where the originals of recorded papers
were brought before a court of justice.

Respecting copies of the navy orders for destroying
the property and person of Mr. Burr, it is very material
to possess them. It may be necessary to show that
these acts, which the prosecutors are pleased to deem
treasonable, were in fact nothing but justifiable means
for defending his own rignts.

Mr. Mac Rae. May it please the court : I regret ex-
tremely 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 duty to wander so widely from 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 pre-
sented to your consideration. Whether this court had
the right to issue a subpoena duces tecum, addressed to
the president of the United States? I will not, sir,
imitate the example which has been thus bountifully set
me, however ample may be the materials, or however
rich the harvest which is now spread before me. What-
ever I may think of the guilt of Aaron Burr ; by what-
ever emotions 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 give them loose. When Aaron Burr shall
be put upon his 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 jury, in the presence of
this court, and in the presence of the whole world, to ex-
press all my opinions and feelings. But, sir, I shall
waive this privilege for the present. I can not but con-
sider 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 presi-
dent's elevation. He need not have taken such uncom


mon 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 president con-
sidered himself superior to the laws. Although, in this
country the decisions of our courts may be considered as
doubtful, 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 so industriously and idly attributed to our
government ; solicitous to give an unerring proof of the
principles on which we act, we shall not shelter our-
selves under these precedents established by the courts
of the United States. Elevated as our illustrious pres-
ident is, yet our principles are, that when life is in jeop-
ardy, he may be summoned like any individual, where
he is able to disclose important facts, and when the
national interests will admit of his attendance. As,
then, we admit that a subpczna may issue against him as
well as against any other man, where was the necessity of
expatiating so widely 'upon his elevated station ? When
all the facts which relate to this transaction come to be
fully developed ; when truth, and not passion, shall
guide our understanding, I do not hesitate to affirm my
belief, that the bolt which has been leveled 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 blame fall where it is due, upon the gentle-
man from Maryland, who has extorted them, and not
upon myself. And here, sir, permit me to read the affi-
davit on which this motion is grounded. I do not un-
derstand from this affidavit, that any other order is
required from the navy department, than the one which
was addressed to Commodore Shaw, and is said to have
been published in The Natchez Gazette. That order is
already in court ; and the attorney for the United States
has pledged himself to produce it, if the court will but
decide on the propriety of its exhibition. The only
new paper, therefore, which is required by this affidavit
is the original letter of General Wilkinson to the presi
dent of the United States.

Mr. WickJiam here observed that the gentleman had
mistaken 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 meaning any imputation upon Mr.
Smith, we say -that they have several orders from his
department. Let us see this order, then, and we may
ascertain whether it be the identical one which we want.
Let us but inspect the order which these gentlemen
have 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 this
order to me ; for what purpose I know not, unless it was
for the sake of showing it. But as I am not particularly
instructed on this point, I do not conceive myself au-
thorized to produce it at present. I will exhibit this
paper if the court thinks it material.

Mr. Wickhani. We have a right to apply to the
president of the United States for the copy of any order ;
but if it is alleged to be a state paper, it must not be
refused on the allegations of counsel, but on the oath of
the officer.

Mr. Mac Rae. Is your subpoena, then, to be addressed
to these other officers ?

Mr. WickJiam. No, sir, to the president alone, who
has all these offices under his control.

Mr. Mac Rae. I will attempt to satisfy the court thai
the counsel have not grounded their motion upon this
affidavit. [Here Mr. Mac Rae read the affidavit.] " May
be material to his defense." Now, sir, how is this ? I
had always understood before, that all applications of
this kind must be founded upon positive averment ; that
the party was not at liberty to state vague and loose con-
jectures, but that he must give undoubting assertions:
and what was still further, that he should swear that
these documents were material to his defense. The oath "
is not, that they may possibly be of use : that they may
or may not be material. On this subject it is not merely
sufficient to advance 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
respect they are so. In these points, then, this affidavit
is essentially defective. It certainly does not state how
these documents are material ; it does not 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 of the
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 distin-
guished 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 trial was conducted. The
seat of government was then at Philadelphia, and not at
Washington. This case, sir, was well known to every
individual who was interested in the politics 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 sup-
port his plea of justification, he applied to the court for
a subpfsna to the president of the United States to obtain
certain public documents. And what did the judge
decide ? He decided that the subp&na ought not to
issue, and declared in strong terms against the principle
now contended for.

But, sir, strong as that opinion is in our favor, and
though it completely goes to deprive the prisoner of
the privilege which he claims ; and though it is to be con-
sidered as law in the courts of the United States ; yet,
sir, abhorring anything that looks like persecution, we
should have disdained to shelter ourselves under this
abominable precedent. We desire that the prisoner may
possess all the information which is necessary to his de-
fense. It is my sincere wish, in this as well as in every
other point, to give him all the assistance which evi-
dence can afford. From our souls, do we abhor every
the slightest thing which wears the appearance of perse-
cution. Sir, I have only read this authority, 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 with-
held from a court of justice, except those which have
been confidentially intrusted 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 com-
pelled to give information. The exception recognized
by Mr. Martin, certainly does exist ; but Mr. Martin
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 Jefferson, 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 prin-
cipally on a decision of the supreme court of the United
States. My position is that if a communication is con-
fidentially 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 upon 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, Cranclis 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 objections 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 anything which might tend to
criminate himself." The court supported him in these
objections. It follows from these opinions that the court
should always receive special information about the
papers, which a party wishes to obtain, before they
authorize him to demand them. They ought to ascer-
tain whether these papers contain confidential commu-
nications 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 court issue a
duces tecum to demand them? The opposite


counsel may rest assured, and the attorney for the
United States has actually pledged himself solemnly to
this court that he would spare no exertions to obtain a
copy of them, if the copy would be sufficient; or the
originals, if copies will not avail. But, sir, if this letter
be of a confidential nature, it is not the duty of the pres-
ident of the United States to produce it in this court or
anywhere else.

And where is the propriety of directing this subpoena
in any event to the president? If it be a public letter,

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 12 of 64)