Aaron Burr.

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

. (page 14 of 64)
Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 14 of 64)
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we learn of it is its general character, that it goes to
prove the guilt of Burr. Now, in order to produce any



MOTION TO PRODUCE PAPERS. 129

collision between this letter and Wilkinson's parol evi-
dence, the letter must have an opposite character ; that
is, it must go to show the innocence of Burr. If Wil-
kinson continues to avow the guilt of Burr, there will be
no contradiction between his testimony and his letter, '
and consequently there can be no confrontation between
them, beneficial to the prisoner ; there can be a confron-
tation in no other event, than that of his deposing to
Burr's innocence. The result of the argument is, that
Burr, apprehensive that the evidence of General Wilkin-
son may be favorable to him, wishes the general's letter
for the purpose of destroying that evidence, and prov-
ing his own guilt. Again, sir, I have never seen or
heard of an instance of this process being required to
bring forward any paper, but where such a paper was in
its nature evidence, for which either party has an equal
right to call, and to use it when produced. But it is ob-
vious that in this case and in the present state of things,
we could not use the letter of General Wilkinson as
evidence ; although the opposite party should obtain his
subpana duces tecum for this paper, and would seem
thereby to have made it evidence, and introduced it into
the cause. Yet after it comes we can not use it : hence
there is no reciprocity in it. The paper is not, at
present, evidence, and therefore is not within the princi-
ple on which this process is awarded. One more remark
on this letter, and I have done with it. I am no more an
advocate for the needless multiplication of state secrets,
than the gentleman who has preceded me. It looks too
much like the mysteries of monarchy ; and I. hate mon-
archy with all its mysteries, as I do the mysterious
movements of those who are lovers of monarchy. Yet
it is obvious, that there may be cases in which the very
safety of the state may depend on concealing the views
and operations of the government. I will instance in
this very letter. I do not know what it contains ; but it
is from the general who commands on the Spanish
frontier. That the state of our affairs was and is with
Spain, not the most amicable, is well understood. We
know that our affairs in that quarter wear, even at this
time, the most lowering aspect. Suppose this letter
should contain a scheme of war, a project of attack,
i. 9



13 o TRIAL OF AARON BURR.

would appear to me not very sound which would be de-
termined by a consideration like that.

I can see but one possible objection to the particular
affidavit which I require, which is, that the prisoner
would thereby unmask his defense. But in the case of
the United States against Smith, a particular affidavit
was required by Judge PATTERSON, setting out what
it was expected to prove by the witnesses ; and although
it was objected in that case that by demanding such an
affidavit he compelled the accused to unmask his de-
dense, he nevertheless demanded the affidavit. And in
that case, as in this, although the materiality of the evi-
dence was supported by some of the ablest advocates on
the continent, the court determined against its materi-
ality, and the cause went on without it; but in the
present instance, an objection as to unmasking the de-
fense would be an objection merely of form, because the
gentlemen have by their arguments, in fact, taken off
the mask, and stated the manner in which they expect
this evidence to apply. We have examined their expec-
tations, and I hope found them baseless.

I conclude, sir, that this is an application to the dis-
cretion of the court ; that justice to the prisoner required
only that he should have all papers from the officers of
state which he shall show to be material and relevant to
his defense ; that he has not shown them to be so in
this case ; and that, therefore, the process should be
withheld until he does show them to be so. I know of
no other rule, which, while it protects the rights of the
prisoner, will also save the offices from needless, wanton,
and wicked violations.

I can not take my seat, sir, without expressing my
deep and sincere sorrow at the policy which the gentle-
men in the defense have thought it necessary to adopt.
As to Mr. Martin, I should have been willing to impute
this fervid language to the sympathies and resentments
of that friendship which he has taken such frequent oc-
casions to express for the prisoner, his honorable friend.
In the cause of friendship I can pardon zeal even up to
the point of intemperance ; but the truth is, sir, that be-
fore Mr. Martin came to Richmond, this policy was
settled, and on every question incidentally brought be-



MOTION TO PRODUCE PAPERS. 131

fore the court, we were stunned with invectives against
the administration. I appeal to your recollection, sir.
whether this policy was not manifested even so early as
in those new, and until now, unheard of challenges to
the grand jury for favor? Whether that policy was not
followed up with increased spirit, in the very first
speeches which were made in this case ; those of Mr.
Botts and Mr. Wickham on their previous question
pending the attorney's motion to commit? Whether
they have not seized with avidity every subsequent oc-
casion, and on every mere question of abstract law before
the court, flew off a tangent from the subject, to launch
into declamations against the government? Exhibiting
the prisoner continually as a persecuted patriot : a Rus-
sell or a Sidney, bleeding under the scourge of a despot,
and dying for virtue's sake ! If there be any truth in
the charges against him, how different were the purposes
of his soul from those of a Russell or a Sidney ! I beg
to know what gentlemen can 'intend, expect, or hope,
from these perpetual philippics against the government?
Do they flatter themselves that this court feel political
prejudices which will supply the place of argument and
innocence on the part of the prisoner? Their conduct
amounts to an insinuation of the sort. But I do not
believe it. On the contrary, I feel the firm and pleasing
assurance, that as to the court, the beam of their judg-
ment will remain steady, although the earth itself should
shake under the concussion of prejudice. Or is it on
the bystanders that the gentlemen expect to make a
favorable impression ? And do they use the court-
merely as a canal, through which they may pour upon
the world their undeserved invectives against the gov-
ernment ? Do they wish to divide the popular resent-
ment, and diminish thereby their own quota? Before
the gentlemen arraign the administration, let them clear
the skirts of their client. Let them prove his innocence ;
let them prove that he has not covered himself with the
clouds of mystery and just suspicion; let them prove
that he has been all along erect and fair, in open day,
and that these charges against him are totally groundless
and false. That will be the most eloquent invective
which they can pronounce against the prosecution ; but



132 . TRIAL OF AARON BURR.

until they prove this innocence, it shall be in vain that
they attempt to divert our minds to other objects, and
other inquiries. We will keep our eyes on Aaron Burr
until he satisfies our utmost scruple. I beg to know,
sir, if the course which gentlemen pursue is not disre-
spectful to the court itself? Suppose there are any for-
eigners here accustomed to regular government in their
own country, what can they infer from hearing the fed-
eral administration thus reviled to the federal judiciary?
Hearing the judiciary told that the administration are
" blood hounds, hunting this man with a keen and savage
thirst for blood ; that they now suppose they have
hunted him into their toils and have him safe." Sir, no
man, foreigner or citizen, who hears this language ad-
dressed to the court, and received with all the complac-
ency at least which silence can imply, can make any
inferences from it very honorable to the court. It would
only be inferred, while they are thus suffered to roll and
luxuriate in these gross invectives against the adminis-
tration, that they are furnishing the joys of a Mahometan
paradise to the court as well as to their client. I hope
that the court, for their own sakes, will compel a decent
respect to that government of which they themselves
form a branch. On our part, we wish only a fair trial
of this case. If the man be innocent, in the name of
God let him go ; but while we are on the question of his
guilt or innocence, let us not suffer our attention and
judgment to be diverted and distracted by the introduc-
tion of other subjects foreign to the inquiry.

Mr. Wickham appealed to the court if the counsel for
Mr. Burr had been the first who began the attack ; and
wished the gentleman to follow his own wise maxims.
He observed, that Mr. Wirt had met the question fairly,
and conceded several points which had been contended
for by his associates. He admitted the granting a writ
of " subpoena duces tecum " to be a matter of discretion ;
but insisted, that the opinion of the party applying for
it, that the papers might be material, was sufficient. He
said that the question in the case of the United States v.
Smith, arose on a motion for a continuance.

Mr. Wirt corrected his statement ; observing, that the
motion was for a continuance and for an attachment



MOTION TO PRODUCE PAPERS. 133

against the witnesses at the same time, and both ques-
tions were argued collectively.

Mr. Wickhain agreed that such was the case; but con-
tended that the special affidavit was required, because
there was a motion for a continuance ; and that on a
motion of this kind, an affidavit need not be special. He
said, that the reason given by Judge Patterson, for re-
quiring a special statement of what was intended to be
proved by Messrs. Madison and Smith, was, that if they
had been present, their evidence (if it only went to prove
that the president had sanctioned the expedition) would
have been of no consequence ; since the president's sanc-
tioning the expedition could not have rendered it
lawful.

We are told, said Mr. Wickham, that Wilkinson's letter
is not important! Yet he is the pivot on which this
prosecution turns. Without his evidence they could not
progress with the trial. When he arrives, it will be all
important to us to prove the falsehood of his testimony,
by proving that he has contradicted himself. His credi-
bility Is the point in question ; and surely General Wil-
kinson is not so immaculate as the government. We
may allude to his tyrannical and oppressive conduct at
New Orleans; we may demonstrate that his feelings, his
interests, his character, require him to secure the convic-
tion of Mr. Burr. Under these circumstances, his ve-
racity must be very doubtful, especially if we can show-
that he has made three or four different and inconsistent
representations of the transactions charged to be treason-
able. His letter, therefore, ought to be produced.

As to the inconvenience to which the public offices
may be subjected, it ought not to be regarded ; for those
offices were made for the good of the people, not for the
good of the officers. All that Mr. Burr is obliged to
show, is probable cause to believe that Wilkinson's let-
ter may be material, though he can not swear that it
is material. Mr. Wirt says, he is not an advocate for
state secrets; but he is in this case, without knowing
it. He has said, too, that the acquittal of Mr. Burr will
be a satire on the government. I am sorry that the gen-
tleman has made this confession, that the character of the
.government depends on the guilt of Mr. Burr. If I be-



134 TRIAL OF AARON BURR.

lieve him to be correct, I could easily explain, from that
circumstance, the anxiety manifested to convict him, and
the prejudices which have been excited against him.
But I will not believe that this is the case, but will tell
the gentleman that we think Burr may be acquitted, and
yet the government may have pure intentions.

The writ of subpoena duces tecum ought to be issued,
and if there be any state secrets to prevent the production
of the letter, the president should allege it in his return ;
for at present we can not know that any such secrets
exist. And the court, when his return is before them,
can judge of the cause assigned. But I have too good
an opinion of the president to think he would withhold
the letter.

The gentlemen on the other side have said that we do
not wish to unmask our defense ; but in withholding the
papers which we demand, they show that they have on
the mask, and we wish the court to aid us in making them
pull it off.

We contend that no affidavit on the part of Mr. Burr
is necessary. Wilkinson's affidavit, already published,
together with the president's communication to con-
gress, prove that the letter in question must be material.
It may show that the treasonable transactions attrib-
uted to Mr. Burr within the limits of this state, never
existed ; for, as to Blannerhasset's Island, the gentlemen
in the prosecution know that there was no such thing as
a military force on that island.

[Here Mr. Hay interrupted him, and said that it was
extremely indelicate and improper to accuse them of
voluntarily supporting a cause which they knew to be
unjust. He solemnly denied the truth of the charge
against him and the gentlemen who assisted him, and
declared that they could prove the actual existence of an
armed assemblage of men on Blannerhasset's Island,
under the command of Aaron Burr.]

, Mr. Wickham acknowledged that he had gone too far
in the expression he had used, and ought not to have
uttered what he had said concerning the counsel for the
United States, and declared that he meant nothing per-
sonal against them. He proceeded to argue the question
concerning the production of the president's orders. He



MOTION TO PRODUCE PAPERS. 135

denied, as Mr. Martin had done before, the legality oi
those orders, and contended that Mr. Burr had a right to
resist them. Mr. Burr was brought here how he was
brought we will not say ; but we will say, that resistance
to the militia ordered out against him, was resistance to
tyranny and despotism.

Mr. Wickliam returned to the question relative to Wil-
kinson's letter. We are told, he said, that the letter is
in the department of state, and a copy will be suffi-
cient. If the letter was written to the president of the
United States, and not to the secretary of any depart-
ment, we may presume that the president has it in his
own possession. But if a copy were here, Wilkinson
might deny that he ever wrote the letter ; and although
the copy might be faithful, it could not prove that the
letter was not a forgery. The original, therefore, will
alone answer our purpose.

Mr. Wirt lays down the strange principle that Wilkin-
son's letter is not evidence, because it could make only
in favor of one side ; but that it ought to make in favor
of the other side also. Give the gentleman his premises,
and his conclusion follows. But his premises are false;
for the doctrine can not be sound, that nothing is evi-
dence but that which makes in favor of both sides of a
question. Such reciprocal effect is not essential to the
admissibility of evidence.

When Mr. Wickham had finished, the chief justice
observed that although many observations (in the course
of the several discussions which had taken place) had
been made by the gentlemen of the bar, in the heat of
debate, of which the court did not approve, yet the
court had hitherto avoided interfering; but as a pointed
appeal had been made to them on this day (alluding to
the speech of Mr. Wirt), and they had been called upon
to support their own dignity, by preventing the govern-
ment from being abused, the court thought it proper to
declare that the gentlemen on both sides had acted
improperly in the style and spirit of their remarks : that
they had been to blame in endeavoring to excite the
prejudices of the people ; and had repeatedly accused
each other of doing what they forget they have done
themselves. The court, therefore, expressed a wish that



136 TRIAL OF AARON BURR.

the counsel for the United States and for Mr. Burr
would confine themselves on every occasion to the point
really before the court ; that their own good sense and
regard for their characters required them to follow such
a course ; and it was hoped that they would not here-
after deviate from it.

THURSDAY, June nth, 1807.

Mr. Hay addressed the court to this effect : I am
happy the court has recommended to the counsel on
both sides to adhere more strictly to the subjects in
debate. Their admonition will be followed by me, and I
wish they would cause it to be followed by others. I
regret, indeed, that it was not made somewhat sooner.
Perhaps if it had, we might have been spared the pain of
hearing many remarks, as unauthorized in point of prin-
ciple and fact as they are irrelevant ; remarks, which, as
a public prosecutor, as a friend of my country, and a
supporter of its constitution, government, and laws, I
heard with surprise and regret, and with a sentiment
which I will not name. I will not imitate this example
of my opponents, but endeavor to confine my observa-
tions exclusively to the question now in discussion. I
am really doubtful, however, whether I should not be
departing in some degree from this declaration in notic-
ing one argument used by the gentleman who last spoke
(Mr. Wickham). Language so strange, -a charge so un-
just, I hope, however, I may be permitted to repel.

The gentleman, with a tone of voice calculated to
excite irritation, and intended for the multitude, charged
us with conceding point after point i He insinuates
that we have been catching at everything to bear down
the accused ; that we inconsiderately contend for any
doctrine, however absurd, which might have the effect of
injuring him, and afterwards are obliged to abandon the
ground we have too precipitately taken. I will ask, if
any occurrence has shown that we are actuated by this
spirit ? No, sir. The gentleman knows the charge is
unjust. But even if it had been true that we had made
concessions, it ought to have been considered as a proof
of our candor and liberality, in giving up ground as soon



MOTION TO PRODUCE PAPERS. 137

as we thought it untenable, and not as a matter of
reproach. But, sir, it is not correct. We have con-
ceded no point that we ever maintained. We admitted
that the president might be subpoenaed as a witness,
because we always thought so. We never clothed him
with those attributes of dignity which gentlemen have
accused us of ascribing to him. We know the president
is but a man, though among the first of men ; he is but
a citizen, though the first of citizens. The president, too,
knows, that, like the great Cato, he ought to pay obe-
dience to the laws of his country, and obey the com-
mands of its courts of justice. All this we have uni-
formly admitted; but have denied, and deny now,
that a subpoena duccs tecum ought to be issued to the
president.

Mr. Hay morover observed, that the objection made
the day before to the prisoner's right to make the motion
in the present stage of the prosecution was not waived;
and that in opposing the motion, he was influenced solely
by a desire to keep the accused and his counsel within
legal limits ; because he had endeavored to procure for
them the very evidence they requested. He proceeded
to argue the question upon its merits.

It having been admitted, that this was a motion ad-
dressed only to the discretion of the Court, it followed,
that it ought to be granted only when substantial justice
required it ; that it is to be granted to a person accused,
because his defense when properly conducted requires it.
But the accused himself in this case does not say these
papers are material in his defense. His affidavit is
drawn with great caution. He only says that the papers
may be material. This is nothing more than the mere
expressing of an opinion, which may be correct or incor-
rect. Mr. Hay asked the counsel for Mr. Burr, and more
especially Mr. Martin, if in the course of their long expe-
rience they had ever known such an affidavit. Its
language is unprecedented, designedly vague, and equiv-
ocal. The letter may be material ! This may depend upon
the use intended to be made of it. The object of demand-
ing it may be to give his counsel an opportunity to speak
as they have done before; to charge the government
with illegal and barbarous persecution, and with endea-



138 . TRIAL OF AARON BURR.

voring to crush and overwhelm the accused. All this
may be said, and no doubt will be said, and may be a
very considerable help to Mr. Burr.

The affidavit is truly farcical ; because from anything
expressed in it, the letter of General Wilkinson may, or
may not be material. Suppose these words " or may not "
had been inserted, would it then have been regarded ?
The absurdity would then have been too evident. And
is it not the same thing in substance as it now stands? If
such an affidavit as this is sufficient, and mere curiosity
is to be indulged, the President might be required to
produce all our correspondence with the Spaniards about
our disputed territories ; in short, all the papers of gov-
ernment would be laid open to the inspection of Burr.
But the Court ought not to issue process on speculation
only ; it ought not to subject the public officers to incon-
venience, and the national archives to derangement,
unless in a case where justice plainly requires it.

But the affidavit would not have been sufficient if he
had said, what he dared not to say, that the papers are
material. It should appear how they are material. The
nature of the evidence ought to be specially stated, that
the Court may judge of it. Will the Court rely on the
judgment of the party in this case? Misled as he is by
his feelings, his judgment ought not to be trusted.

Even in ordinary cases the Court will inquire as to the
contents of papers on a motion for a continuance. Which
doctrine is recognized in 2 Bl. Rep. 514. The same thing
was done in the case of the United States v. Smith and
Ogden, in which almost as much clamor was excited as
in this. There, the evidence of Mr. Madison and others
was sworn to be material ; but the Court required a
specification of its substance, and decided that it was not
admissible. The papers required in the present case
would probably be so decided if they were here. I have
a knowledge of the orders, and think so with respect to
them. The letter I know nothing about. Mr. Wickham's
argument, that the Court did right in Smith and Ogden's
case, because it was prima facie presumable that the evi-
dence would not be admissible, turns against him here ;
for, certainly, it is prima facie presumable that General
Wilkinson's letter can not make in Burr's favor, since the



MOTION TO PRODUCE PAPERS.- 139

orders to intercept him on his passage to the seat of his
empire were founded on the information received from
that letter.

The conduct of the gentlemen proves that they feel us
to be right. Their involuntary conviction of this is
evinced by their endeavoring to supply the defect in the
affidavit, and to specify the purposes for which the
papers are wanted. The accused has not ventured to
swear that they are material, but they assert it, and
attempt to show it by argument.

First, as to the letter. Mr. Wickham says that Wilkin-
son has written other letters to other persons differing
from this. We deny the fact. If it be true, why is it not
sworn to ? But suppose General Wilkinson had done so,
what is the inference? Is his evidence before the jury not
to be regarded? It is strange indeed that the gentlemen
say they have never seen this letter, and only guess at its
contents, yet say, that letters containing different state-
ments have been written ! Surely such efforts as these are
deplorable ; for, whether the assertion be true or not, it
is not known to be true.

They next contend that the orders are material because
they were illegal, arbitrary, unconstitutional, oppressive,
and unjust ; that Burr's acts were merely acts of self-
defense against tyranny and usurpation, and, of course,
were justifiable.

Many strange positions have been laid down, but this
is monstrous. Mr. Martin will excuse me for saying that
I expected sounder doctrine from his age and experience.
These principles were not learnt by him in Maryland, nor



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 14 of 64)