Aaron Burr.

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

. (page 13 of 64)
Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 13 of 64)
Font size
QR-code for this ebook


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 the president of the United States?
There is no specific reason why this informality is
adopted ; for gentlemen 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 public nature, but confidential
communications, then it is- necessary or proper to sub-
pcena Thomas Jefferson.

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 honors say that a copy of this letter may be read
in evidence, like copies of all other documents in the de-
partments 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 gen-
tlemen may contend that General Wilkinson would ob-
ject 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 Wilkinson should dare to raise this objec-
tion ; if he should pretend to declare that this was not
his letter, or that it was not an authenticated and correct



MOTION TO PRODUCE PAPERS. 119

copy, a few days only would elapse when the original
would certainly be produced

Mr. Botts. In a government of laws, where majesty
and prerogative are proscribed, and where the authorities
of all 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 na-
tional intercourse with foreign states, where the relations
present subjects fit for privacy, the rare duty of con-
cealment may occur. Some time ago, when the hue
and cry of treason was rung through the country, there
might have been an excuse for the claim of securing
from the eye of the suspected, particular acts of the cab-
inet. At this moment it will not be pretended that the
public good can require that Mr. Burr should not have
the means from the departments required for his justifi-
cation.

Can any innocent purpose, said Mr. Botts, be sub-
served by the president's .withholding the 'documents
demanded ; and will the counsel malign him by imput-
ing to him a guilty one? The act of congress provides
fees for copies from the ministerial offices under the con-
trol of the president, and every individual has a right to
demand them on paying the statutory charges. If indi-
viduals in common have this right,' why has it been
denied to Mr. 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 punishment 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 give evidence concerning the instructions
he had given to that admiral. I do not now complain
of the illiberal caution of the gentlemen in keeping
hidden their written evidence, which, if known in time,
we might refute ; but such testimony as we think
material in our defense, we are at any rate entitled to
without favor from them. But the gentlemen have
made a concession of great liberality! They say they



i 2 o TRIAL OF AARON BURR.

are willing that the president may be summoned to
attend, but not to give evidence when he does attend :
not to disclose anything but what he may himself con-
descend to make known. The president may be, and
no doubt is, a very great and good man ; but while his
policy in relation to the accused is so completely envel-
oped in mystery, the counsel for the prosecution must
pardon us, if we can not consent to pin our faith on his
sleeve, arid if we choose rather to betake ourselves to
our legal rights.

The opinion given by Judge Chase on the trial of
Cooper, was reprobated by the politics of those gentle-
men who prosecute for the United States ; and yet they
now wish to avail themselves of that authority. I con-
gratulate them upon their dereliction of the old demo-
cratic opinions which prevailed at the time of Cooper's
trial, and which I thought would have gone with my
friends to their graves.

Mr. Mae Rae observed that Mr. Botts had misrepre-
sented the object for which fte had introduced the opin-
ion 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.

Mr. Wickham said that Judge Chase's opinion pro-
nounced in the case of Cooper was not correctly under-
stood. It was not that the president could not be sum-
moned as a witness, but that he ought not be summoned
to give evidence against himself.

Mr. Botts proceeded to say that even that qualified
opinion of Judge Chase had been reprobated by .the gen-
tlemen ; but now they shelter themselves under it in
effect, because they use it as authority against the suc-
cess of the present motion.

The gentlemen contend that the executive must judge
whether 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^stibpazna duces tecum ? When this
is served the president may make out his return.

As to the argument that a copy of General Wilkin-
son's letter will be sufficient : Suppose, said Mr. Botts,
General Wilkinson should swear to one thing., and the



MOTION TO PRODUCE PAPERS. 121

copy of his letter should say another; would you con-
demn him upon the president's certificate merely that
the paper produced contained a true copy of a letter
from him ?

He concluded with observing that, if a time shall ever
arrive when a person shall stand accused of a crime of
the highest nature; of a crime by which his life is endan-
gered, 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. VVirt. The counsel for the prosecution do not
deny that the general subpoena 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 obey-
ing the process, that would be a satisfactory excuse for
his non-attendance pro hcsc^vice ; but does not go to
prove his total exemption from the process. We think
further, sir, that a man standing in the situation of the
prisoner, has also the right to demand all papers material
for his defense, wheresoever they may be, the disclosure
of which wiH not compromit the national safety ; but
then the papers required must be shown to be material
for his defense. The siibpoena ad testificandum is a mat-
ter of right, and the prisoner might have demanded it
from the clerk without the intervention of the court ;
but here is a motion for a subpana duces tecum, to com-
pel 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 a process of right ; that the motion for it, is a
motion addressed 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 discre-
tion of the court should be controled and determined
only by the relevancy and materiality of the papers
required.

And thirdly, that in the present instance, the rel-
evancy and materiality of the papers required are so



122 TRIAL OF AARON BURR.

far from being shown, that, from everything which
appears, they are both immaterial and entirely irrel-
evant.

I shall proceed to show, in the first place, that t\iQ sub-
poena duces tccum is not a process of right, but that the
application for it is addressed merely to the discretion of
the court.

Mr. Wickham. 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 unnecessary 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 circum-
stances should that discretion be controled and deter-
mined ? Should it be by the mere wish of the prisoner?
If so, it is in vain that the court possesses any discretion
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 pro-
cess flowing 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 defense? If you
would, you put the pursuits and the peace of every
individual in the United States at the mercy of the pris-
oner's caprice and resentments. This argument, 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
cordial amity for the government by which he is prose-
cuted for a crime. The truth is, that he feels himself in
a state of war with that government ; and the more des-
perate 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 glor-
ious," by dragging down with him the bright and



MOTION TO PRODUCE PAPERS. 123

i

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 and proclaim
to the world every document and secret of state, how-
ever delicate our foreign relations might be, and however
ruinous the disclosure to the honor 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 devised, 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 defense.
When he shall have done this, I hold that he will be
entitled to call for any paper. It will then rest with the
president of the United States, the officer appointed by
the people to watch over the Rational 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 such papers as are
material for his defense ; 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 for the prisoner to wish a paper, to have it, they
put themselves, as well as the chief magistrate of the
Union, in danger of becoming the mere ministers of the
prisoner's whim, or malice 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 honors, that it is usual to award the subpoena
duces tecum on the mere motion of the party, unsup-
ported 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 is it not ? Because
the relevancy and materiality of the paper are admitted
by the adverse counsel, or are palpable from the nature
of the issue, and of the paper required. The docket, for



124 TRIAL OF AARON BURR.

would it be proper to divulge and proclaim it even to
Spain herself? If the letter contains 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
relevancy and materiality of these papers for the pris-
oner's defense are not palpable, by comparing the nature
of the papers with the nature of the issues ; and being
neither self-evident nor admitted, I hold that the party is
bound to show, at least by his affidavit, 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 arid vague,
that he believes these papers may be material for his de-
fense. Sir, he might take the same oath as to any paper
in the offices of state, without the possibility of proving
him forsworn ; for he swears merely to a conjecture, 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 hazard 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 to do the prisoner any
good. If he thinks otherwise, where can be the diffi-
culty of his showing, by an affidavit at least, some prob-
ability 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 present they have nothing
but the prisoner's faint conjecture, and the discretion



MOTION TO PRODUCE PAPERS. 125

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 subpoena 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 title. 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 et once the relevancy and materiality of
the latter. Hence it has happened that these motions
are usually unsupported by affidavit. But is this the case
here ? The relevancy and materiality of the papers
called for, are not admitted by us : are that relevancy
and materiality palpable from the nature of the points
in issue and the papers required ? Let us see if they
be. The two charges against the prisoner are, first, of
high treason ; and second, misdemeanor, in setting on
foot an expedition against the territories of a nation
with whom we are at peace. For the purpose of his
defense, he says he wants a letter from General Wilkin-
son 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 de-
struction 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 misde-
meanor? As to the orders 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 no other way,
I hold that his destruction would have been a virtue ;
a great and glorious virtue. Affairs, however, had not
reached that desperate crisis. We have seen the orders,
sir, and at a proper time will produce them. The very
orders to Lieutenant Shaw, which the prisoner has so
often mentioned, as having been published in The Nat-
chez Gazette ; those orders are not as he has described
them ; they are simply orders to apprehend Aaron Burr



i 2 6 TRIAL OF AARON BURR.

and if it shall become necessary for that purpose, to de-
stroy his boats. Those are the bloody orders which have
been so often mentioned with looks of such tragic and
mysterious import ! Suppose the orders were as bar-
barous as he has described them, and that the emer-
gency did not justify them, they prove the administra-
tion 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 demerits. But the question is not now as to the
guilt or innocence of the president ; it is as to the guilt
or innocence of Aaron Burr on the charges of treason
and misdemeanor; and whether the president has
acted right or wrong, does not,- and can not affect 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 these witnesses do not prove the
charges, there is an end of the inquiry: but if they do, I
ask whether it be possible that his production of the presi-
dent's orders, even in his own terms, will remove that evi
dence of his guilt ? Every judgment must answer No
and if so, the orders are clearly immaterial for his defense.
But although the affidavit does not attempt to show
wherein these orders are material for the prisoner's
defense, Mr. Martin has attempted to supply this omis-
sion by his argument. It seems these orders were so law-
less, that Burr had a right to resist them ; and whatever
he has done has been in self-defense against these orders.
It would be easy, sir, to expose the flimsiness and fallacy
of this pretext by a reference to dates. The man can not
have a very chronological head who can impute crimes
throughout 1805, 1 806, to orders issued in the last month
of the last year, or the beginning of 1807 : but without
stopping to analyze more minutely this strange an-
achronism, let us inquire into this doctrine of resistance
which Mr. Martin has advocated. I am not an advocate
for passive obedience and non-resistance. I do not think,
as Mr. Martin has asked, that a man becomes a god when
he becomes 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



MOTION TO PRODUCE PAPERS. 127

ours, even aspires to become one, approaches, in point of
character, a class of beings very opposite 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 pre-
scribes the punishment of misdemeanor charged on the
prisoner, the president is authorized and required to call
the naval and military force of the country to defeat the
enterprise. In the present instance he has done so, and
given orders for the apprehension of the offender ; and
we are told that Aaron Burr, instead of submitting him-
self to the laws and justice of his country, 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 re-
sist them by force. If this be so, there is an end of gov-
ernment. Every individual in the country, I presume,
has, at least, the same rights with Aaron Burr; and if he
has this right of submitting to, or resisting the laws and
officers of the governwent, as he pleases, everybody else
has the same right ; then where is the use of our consti-
tution, 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
resistance of which Mr. Martin has spoken, was itself an
act of treason. Before the orders can be material for his
defense, on this ground, it must be determined that he had
the right of resistance ; but, as I presume it to be impos-
sible, that the court can entertain this latter opinion, I
conclude, that the orders in question, can not be relevant
or material to his defense in this light ; and no other has
been presented, or I believe can be presented. Let us
now consider the letter from General Wilkinson to the
president, and inquire how that touches either of the
issues in which the prisoner is involved, and now 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



1*8 TRIAL OF AARON BURR.

which establishes this office, contains 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, authenticated under the
said seal, shall be evidence equally as the original record
or paper." (i 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 referred us ; and by this
message it appears, that it was from this letter, connected
with others, that the president inferred the prisoner's
guilt ; a letter then, which according to the only-account
we have of it, contributes to establish the prisoner's
guilt, is required for the purpose of proving his inno-
cence ! But this letter we learn, not from the affidavit,
but from argument, is required for the purpose of con-
fronting General Wilkinson, if he should trip in his evi-
dence. At present, then, there is confessedly no issue
to which this letter applies ; but one may possibly 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 subpana duces tecum in a civil
question, stating, indeed, that there was at present no
suit to which the paper could apply, but that he appre-
hended one might be brought, in which it might be
material, would his motion be granted ? Now where is
the difference between such a motion, and the very re-
mote 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 further. No one pretends to know
anything of the details of this letter ; all we know of it
is derived from the president's message ; and from that all



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 13 of 64)