Aaron Burr.

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

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are they the doctrines of this place. Considering that
he has come all the way from Maryland to enlighten us
of the Virginia bar by his great talents and erudition, I
hoped he would not have advanced a doctrine which
would have been abhorred even in the most turbulent
period of the French revolution, by the Jacobins of 1794!
It is the duty of the president to call out the militia to
suppress combinations against the laws (see L. U. S. vol.
3, page 189^, and particularly to prevent enterprises
against foreign nations in amity with the United States
(ib. page 92). Yet it is contended that his orders for such
purposes are illegal, and may be resisted by force of arms!



140 TRIAL OF AARON BURR.

I will not say it is treason to advance, or a misdemeanor
to believe such doctrines ; but deplorable is the cause
which depends on such means for support. Suppose
however, the president was misled, and that Mr. Burr was
peaceably engaged in the project of settling his Washita
lands ; will it be contended that he had a right to resist
the president's orders to stop him ? I say this would be
treason. If congress were to pass an arbitrary or oppres-
sive act, but not unconstitutional (such as the excise law,
for example), it has been decided, that an armed combin-
ation to resist it would be treason. Of course, resistance
to the execution of the statute, under which the president
was acting, would be treason. The president receives
information that a law of the United States is about to
be violated ; he issues orders to enforce the law in the
way prescribed by itself. Is not opposition by violence
reason? Will the gentlemen, after seriously reflecting,
still contend that Burr had a right to resist ? This doc-
trine is not the growth of this country, nor is it the
doctrine of the real friends of human liberty ; but this
is a new-born zeal of some of the gentlemen, in defense
of the rights of man. No wonder, therefore, they are
not so well acquainted with the subject as those who have
always contended, and always will contend, for them.
But admit their inference correct ; that Burr had a right
to resist an illegal order (which I utterly deny), will the
court issue a subpoena founded on that supposition?
Will you insult the executive by saying, that its orders
were illegal, and ought on that account to be produced
as evidence? especially after you have yourself said, that
there was probable cause for committing Mr. Burr on the
charge of a" misdemeanor?

Mr. Hay proceeded to argue another point, that the
court ought not only to be satisfied that the letter was
material, but that it was a public paper. He said, if it was
a public document, the right to a copy of it was admitted,
unless there should be something in it, which, in the
opinion of the president, the public good forbade to be
disclosed. But he denied that the letter was a public
paper merely because addressed to the president of the
United States. It had been observed that the president
had made it so by referring to it in his message to con-



MOTION TO PRODUCE PAPERS. 141

gress. If this argument is correct, only so much is public
as is referred to. [Here Mr. Hay read a part of the
president's communication to congress.] He contended,
that there might have been a great deal more in that let-
ter than what related to the discovery of Burr's plans ;
that there might have been information of a private
nature, accounts of the disposition of the people in the
western country towards the government, and General
Wilkinson's thoughts on many important subjects. Will
the court say, that all these things shall be made known?
If a copy was received, such parts only could be extracted
as ought to be made public ; but if the original should be
granted, the whole would be seen and inspected by the
court, by the counsel on both sides, and by the public.
He said, that the court ought also to be satisfied, that
the president has the custody of this letter. The subpoena
ought to be addressed to the person who has it in his
custody. It is said to b^ a public document ; if so, it is
in the office of the secretary of state (see L. U. S. vol. I,

p. 42, 43)-

It is absurd, then, as well as indecorous, to summon the
president of the United States to bring a paper which he
has not. The same observations applied to the copies of
orders. The original orders were lodged with the secre-
tary of state, and copies were sent by him to the secreta-
ries of war and of the navy. To the secretary of state,
therefore, the subpoena ought to be issued, if at all.

The court ought also to be satisfied that the party
could not obtain, without a motion, the copies of the
orders now required. The accused ought, therefore, to
show that he has demanded copies : but he has not done
so. He asked, indeed, a copy from the secretary of the
navy ; and because he refused, process is to be issued
against the president of the United States, though he was
never applied to !

The Chief Justice asked Mr. Hay, what was the legal
way of getting the paper which the secretary of the navy
refused. He answered, " by application to the secretary
of state for copies."

Mr. Hay made many other observations, which the
limits of this sketch will not permit us to insert. In
opposition to the argument that General Wilkinson might



142 TRIAL OF AARON BURR.

deny any recollection of his letter if a copy only was
produced, he said it was mere presumption, a preposterous
supposition ; that it would be immaterial whether he
denied it or not, since the copy is evidence by the act of
congress. He here vindicated General Wilkinson from
the attacks which were wantonly made upon him ; saying,
it was the policy of Mr. Burr and his counsel to endeavor
to tear down his character before he arrived, and that
every principle of propriety was violated by such conduct.
He asked if it was right that a man, high in the confi-
dence of government and of his country, should be thus
attacked, and declared he should be sorry for the character
of his fellow-citizens, if the abuse lavished on him by the
accused should have the slightest effect on the event of
the trial, i

Mr. Mac Rae said it was plainly to be inferred from
the president's message to congress, that the letter
in question was confidential. It appears that the presi-
dent furnished extracts of some of the letters he
received relative to Mr. Burr. His not furnishing
congress with a copy of this or any other part of it,
is presumptive evidence that it ought not to be made
public.

Mr. Randolph. May it please your honors : To the
observations I shall make, I have no preface norapolosry.
I beg leave to appropriate to argument the time which
falls to my lot in the discussion of the present motion.
I did not believe, sir, that to-day there would have been
a resurrection of the discussion which took place yester-
day ; but since the attorney on the part of the prosecu-
tion has thought proper to introduce it, I shall not
shrink from it, but meet it. I make no appeal to the
multitude ; it is not my desire to excite the sympathy,
or rouse improperly the feelings of the bystanders. I
shall simply state the proposition. Why is Mr. Burr not
entitled to ask the court to issue a subpoena for the pro-
duction of those papers? Is Mr. Burr not now before
the court ? Is he not here upon his recognizance? Has
he not been here a considerable time on the tenterhook
of expectation, that when General Wilkinson, that great
accomplisher of all things, arrived, an indictment would
be preferred against him ? But has he, on that account,



MOTION TO PRODUCE PAPERS. 143

resigned the rights of defense ? Is he to be tongue-tied
and hand-tied, without the privilege of defending him-
self? He can not be properly defended without the
production of these papers, and on that account he now
demands the interposition of the court. But, say the
counsel for the prosecution, he is not entitled to this
privilege until an indictment is preferred, and the grand
jury find a true bill. Why did we not hear this objec-
tion when the grand jury were empaneled ? It was
proved, yesterday, by several law authorities ; it was
proved, sir, by invariable practice ; and it was proved,
by a wish of all our souls, that the accused ought to have
this privilege from the very commencement of the pros-
ecution. Wherefore, then, sir, are we to be vexed and
perplexed again with this objection? Wherefore do
they say it is premature on the part of my client? I see
a corps of worthies around me, to justify what I say.
Every man, I assert, who appears on the grounds of a
recognizance, stands in the same condition as one on his
trial. Are you to shut a man out from evidence because
he is only accused, because his life can only be forfeited ?
There is a iiarshness in this ; there is a severity in this
sentiment, which, however agreeable it may be to the
principles of law, I have to thank God, has never been
my practice. The principles to which I have been accus-
tomed have always agreed with truth, and the sacred
books of the scripture. No bill is yet found ; and I
trust none ever will. The amendment to the constitu-
tion, they say, does not apply to the present case, but to
a trial. We no not mean to force this point, although
ample authority might be produced in support of it.
You, sir, will certainly do what is right in the present
motion ; this we do not mean to doubt ; but you will
give me leave to ask, what our situation would be, in
what a deplorable dilemma we should be placed, if, at
the instant, the attorney was pressing us with his testi-
mony, we had to supplicate your honors to grant us the
purport of the motion now in question ? and if the trial
could not be postponed (which in all probability it would
not), we must go to a final decision without it. In that
case, even were the sun of innocen.ce ready to shed his
beams upon us, we would be cast into utter darkness.



i 4 4 TRIAL OF AARON BURR.

No, sir, such can never be the opinion of this court: jus-
tice must be changed; law must be changed; nature
must be changed, before such sentiments can be heard.
I will not trouble you much further with discussing the
propriety of our application, feeling the confidence with
which I am certain it is regarded by the court ; but I will
come directly to the consideration of what are the real
points in discussion.

This is not whether a president can be summoned :
that part is happily conceded ; and I rejoice that we
mistook in the commencement of the argument, the
sentiments of the attorney on the part of the prosecu-
tion on this point. I rejoice, I say, that I did mistake
him ; because, from that very concession I will draw
every corollary that may be necessary for establishing
the great point for which we contend. By admitting
that the president of the United States can be sum-
moned, a great canon of evidence is admitted. I must,
however, be excused by the worthy gentlemen, if I tell
them they are a little inconsistent. In throwing ob-
stacles in our way against obtaining the papers for which
we have moved the court to issue a subpoena, they
imitate that bad example which they have imputed to
us. What is the nature of the evidence we do ask?
We ask for that sort of evidence which may enable us to
confront James Wilkinson with himself. There is not
an idea beyond this. We wish to show that James
Wilkinson, in his official capacity as commander of the
army of the United States at New Orleans, is not the
same with James Wilkinson the correspondent of the
president. We wish to prove that James Wilkinson has
varied from himself, and that he has varied in most
essential points in the greatest degree. Mr. Hay tells
us that everything depends upon this same James Wil-
kinson ; that he is, in reality, the AlpJia and Omega of
the present prosecution. - He is, in short, to ^support by
his deposition the sing-song and the ballads of treason
and conspiracy, which we have heard delivered from one
extremity of the continent to the other. The funeral
pile of prosecution is already prepared by the hands of
the public attorney, and nothing is wanting to kindle
the fatal blaze but the torch of James Wilkinson. He



MOTION TO PRODUCE PAPERS. 145

is to exhibit himself in a most conspicious point of view
in the tragedy which he fancies will take place. He,
James Wilkinson, is to officiate as the high priest of this
human sacrifice.

Of James Wilkinson we are not afraid, in whatever
shape he may be produced ; in whatever form he may
appear before this court. We are only afraid of those
effects which desperation may produce in his mind.
Desperation, may it please the court, is a word of great
fitness in the present case. General Wilkinson we
behold first acting as a conspirator to insnare others,
afterwards as a patriot to betray others from motives ot
patriotism. What must be the embarrassment of this
man when the awful catastrophe arrives, that he must
either substantiate his own innocence by the con-
viction of another, or be himself regarded as a traitor
and conspirator, in the event of the acquittal of the
accused.

Is it not to be supposed that General Wilkinson will
do many things rather than disappoint the wonder-
seizing appetite of America, which for months together
he has been gratifying by the most miraculous actions?
If I am not mistaken, I have seen it in some of the pub-
lic prints that he is no longer the vicegerent of the
Upper Louisiana ; and if I may be indulged with the
slightest power of prophecy, I may predict that this
same General Wilkinson, who has been astonishing the
citizens of New Orleans with plots and conspiracies, will,
before many weeks, only figure in the capacity of a pri-
vate citizen. I shall not say that Generel Wilkinson
would commit perjury ; let me not be understood as
making such an assertion ; but if I know human nature,
if I understand the feelings of the human breast, if I
have the slightest knowledge of those principles which
govern the mind of man, I may be allowed to affirm,
that every feeling would be asleep in his breast if he did
not use every exertion in his power for the conviction of
Mr. Burr. Upon the conviction of Mr. Burr, upon the
guilt, I say, of Mr. Burr, depends the innocence of Gen-
eral Wilkinson. If Mr. Burr be proved guilty, then,
indeed, General Wilkinson may stand acquitted with
many of his countrymen ; but if Mr. Burr be not found
10



i 4 6 TRIAL OF AARON BURR.

guilty, the character, the reputation, in short, everything
that deserves the name of integrity, will be gone forever
from General Wilkinson. Sir, in that event, I say, in
the event of Burr's acquittal, as sure as man is man,
storms and tempests will cover the western glory of Gen-
eral Wilkinson, and gather darkness all around him.
We have, therefore, the justest cause to scrutinize this
gentleman's deposition. We have the strongest reasons
to examine this gentleman's character, and to trace him
in his most confidential walks. From his letters we
have already had some glimpse of him ; but 1 should
wish, as I have said, to have him confronted with him-
self; I mean, to have his correspondence with the presi-
dent of the United States opposed to whatever state-
ment he may deliver here. I shall therefore suppose, by
way of illustration, that the president were here, and
certain questions were put to him. The president
certainly could not dispense with answering these
questions. Much as I respect the illustrious character
of the president of the United States, yet I should
begin to imagine that the sheet-anchor of our govern-
ment was gone, if the president could be excused more
than any other individual before this court, from answer-
ing any questions which might be put to him. It is
really most extraordinary that these gentlemen should
tell us, after arriving in the porch of the temple, that we
shall not go into the sanctum sanctorum ; that we are at
liberty to know part of the correspondence which has
taken place between General Wilkinson and the presi-
dent of the United States, but not the whole.

The gentleman for the prosecution has to-day, sir,
given us an eulogium upon himself an'd his associate
friends. He has pictured to us the zeal and the anxiety
he has had for the production of those papers, and has
assured us that he has already taken means for having
them here. I thank the gentleman for his exertions,
but at the same time I must beg leave to remark the
equal zeal with which he and his friends combat our
application. If Mr. Burr were now asking you for these
papers, without showing any probable cause that they
were material, this, indeed, would be a wanton, woman-
ish, feverish curiosity ; but it is no such curiosity : we



MOTION TO PRODUCE PAPERS. 147

have shown in the fullest manner that they are material
and of the first importance. It is said that by their pro-
duction General Wilkinson, that huge Atlas, on whose
shoulders the American world is sustained, is wished to
be represented as a man in whom confidence ought not
to be placed. But, I say, if the production of these
papers were to effect the annihilation of General Wilkin-
son, that I hope and believe no other visible chasm in
the creation would be produced, but in that portion of
space at present occupied by his material body. How
can the rank and safety of General Wilkinson be con-
cerned in the production of these papers? General Wil-
kinson is only an organ in the hands of government.
As to his glory, I believe its meridian splendor is set, and
that he will be no longer worshipped as the political
Messiah of America ; but even if he were crucified, I
trust it would make no era in our time. Suspicion at
all events belongs to him. He stands in that character
which is always regarded as odious ; that of an approver.
He has confessed himself guilty of the most heinous ot
crimes, for the purpose of entrapping others ; of render-
ing others equally infamous with himself.

We are told that our motion goes to reveal state
secrets; that confidential characters are to be brought
into view ! State secrets ! The very name strikes me with
horror! I have heard one of the gentlemen concerned,
renounce the idea, and I shall not again be the means ot
recalling the principle. Sir, I will not say that there
ought not to be a limitation with respect to the produc-
tion of state papers. But in what character is the name
of General Wilkinson inscribed in the roll of fame, to
entitle his actions to be concealed? Is the safety of this
country to be endangered by calling upon him as a wit-
ness, who is known and declared to be one of the arch-
witnesses of this prosecution ? Is the national safety to
be endangered by this? A nation stand upon this? a
nation which ought only to look to the Almighty for its
rule ! Shall the people of this country be considered as
in danger, though this motion be granted? Should they
be in danger, though General Wilkinson were given up
to be buffeted ? I should be very unwilling indeed that
a single name should be unnecessarily exposed ; but are



148 TRIAL OF AARON BURR.

one man's fortune, character, and life to be brought into
jeopardy in order to conceal the names of others ? Is
this to be the shield under which General Wilkin-
son is to be screened? Is the executive bureau to be
made a sanctuary of scandal, to protect the fame of
General Wilkinson, and when opened at some future
period, to display to the citizens of this country, a tale
perhaps as horrid as many of those which the red book
of France has unveiled ? The revealing of confidential
secrets has also been objected to. Two cases of this
nature were yesterday ably detailed by the counsel asso-
ciated with me. The case of Lord Barrington, and the
surgeon, whose evidence was given on the trial of the
duchess of Kingston ; but, sir, I have seen within the
walls of this house, a case still more affecting ; a case in
which, if ever confidential secrecy was to be pleaded, it
ought then to have been sustained. This, sir, was the
case of a young lad of sixteen years of age, who \vas
arraigned at this bar for a criminal offense. His infant
mind, and the feelings of his heart, had been unburdened
to his father alone. He, led by paternal affection, was
anxiously attending at the side of the lad, at the issue
of the trial. The attorney for the state, after fruitlessly
examining all the evidence for the prosecution, and find-
ing no testimony sufficient to sustain it, at length darted
his keen and penetrating eye upon the distressed parent.
He immediately made an application to the court to
compel him to give evidence against his son. The court
were greatly affected ; tears streamed from their eyes. I
defended him. I do not know that I used any reasoning
on the subject ; but the close ties of father and son, and
the nature of confidential secrecy, were in vain pleaded.
The court determined that he was a competent witness,
and must be sworn to testify ; and were about to compel
the father to give testimony against the son, who on this
testimony alone would have been convicted. The father
. approached the book, and was going to swear ; but, for
the honor of Virginia, the records of the state were not
blotted with so sanguinary a sentence. The scene was
so truly affecting, that at the recommendation of the
court the demand for his evidence was not persisted in.
But is General Wilkinson the child of the president of



MOTION TO PRODUCE PAPERS. 149

the United States ? Is the president to be viewed as the
father of General Wilkinson? Is Mr. Jefferson to be
placed in the same situation with respect to James Wil-
kinson, as the parent I have mentioned, with regard to
the boy? Are the hearts of Mr. Jefferson and General
Wilkinson connected by the same tender ties of sympa-
thy^as those of a father and son ! The law is, that every
man, who is not interested in the event of a cause, is a
witness, and bound to give his testimony when called on,
except in cases of professional confidence.

The objection to the insufficiency of the affidavit is
unfounded. It is a work of supererogation to make it
at all. It was not necessary to entitle us to make the
president disclose the paper. It is evident, without it,
that he ought to produce it. We proceeded in this by
way of frank accommodation, to prevent the necessity of
his attendance. As they deny, we insist on the right to
draw this paper from the president's pocket. [Here he
expressed a hope that he had not misunderstood Mr.
Wirt, concerning the "necessity of the affidavit. Mr. Wirt
repeated what his argument had been, and the Chief
Justice stated that the impression of the court was sim-
ilar.] A man ought not-to be precluded from evidence
which he thinks material, though he does not know it to
be positively so. If the paper were not in a bureau of
office, we should want no subpcena duces tecum. It stands
on the same ground as a common subpcena, and we have
the same right to have it as to have a common subpcena.
But the object being to obtain the paper only, if it be
tramsmitted and found to be different from what it has
been represented to be, the witness would then be ex-
cused from attending.

If our affidavit stated the materiality of the paper,
and yet the paper should be found to be otherwise, we
should then have to encounter the full torrent of Mr.
Hay's invectives, for having incautiously sworn to what
was incorrect, although the affidavit stated the fact pre-
cisely, as Mr. Burr had every just reason to believe it.
Mr. Burr desires to obtain this paper, but he knows not
its contents; he can not say what is in it, but we have
the holy word of the president himself that it relates to
*Jr. Burr. This is one of the few things which he has



i 5 o TRIAL OF AARON BURR.

done wrong. The president testifies that Wilkinson has
testified to him fully against Burr. I am absolved from
all scruples on this subject. I have a right to demand
peremptorily Wilkinson's letter, when it is said that it will
prove Burr's guilt. The president's declaration of Burr's
guilt is unconstitutional. I den)' his right to make such
a declaration against any man, or to make such an infer-
ence from statements made to him. The constitution
gives him no such right ; and its exercise by the president
would be dangerous. It may and must excite unjust
prejudices, and create a powerful influence against a man
who is really innocent. The constitution very wisely
withholds from the president a power so unfavorable to a
fair trial between the public and individuals accused, and



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