Aaron Burr.

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

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so dangerous to the liberties and lives of the citizens. I
hope it is no rebellion, but I hope our objection to this
dangerous and unconstitutional declaration of the presi-
dent will be handed down to posterity, to prevent his
conduct in this respect from being imitated. Congress
did not call upon him for his opinion. They would have
been satisfied with his statement of public transactions,
without his opinion. He is to see that the laws be faith-
fully executed, and to give information with respect to
the state of the Union ; but he is not to give opinions
concerning the guilt or innocence of any person.

A copy of this letter would do in every other sense, or
for any other purpose ; but the original must be produced
to Wilkinson, otherwise he might deny it to be his. If
a copy were produced, he might deny that he had written,
and on every correct principle of law demand the pro-
duction of, the original. He would look towards the city
of Washington, and consider the consequences of testi-
fying here. He would consider how the government
would view his conduct. He might know it to be a true
copy, and yet be afraid to say so. Perhaps there might
be inducements for him not to deny it ; but suppose he
were to deny it at the trial, could you discharge the jury
till the original was brought? No sir, you could not; and
every objection would be made and sustained against
reading the copy. Original papers only have ever been
admitted as evidence in penal cases. There is no instance
?f a conviction, in a capital case, on the copy of a letter



MOTION TO PRODUCE PAPERS. 151

as evidence. The case of Smith and Ogden is egre-
giously misunderstood on this point. [Here Mr. Wirt
explained. Mr. Randolph read the case and proceeded.]
The affidavit was wanted there to put off the trial. To
postpone a trial the utmost precision (precision ad
unguent) is necessary ; but on a motion to take testimony
belief is sufficient.

I believe that Mr. Jefferson ought to hasten to produce
that paper. His regard for the promotion of public
justice ought to induce him to do it. His character
requires that he should produce it. Lest that character
should surfer, I would almost ask it for his sake. Gentle-
men say, why do we not rely upon him, and demand it
of him ? I answer that, without the orders of this court,
the prospect of obtaining it is very unpromising, after
we have made an application to one of his secretaries
(Mr. Smith), and received from him a positive and
peremptory denial, with a declaration that the orders
were intended for the officers alone who were to execute.
Mr. Van Ness had said that there had been a promise
made to furnish it to Mr. Burr's counsel; but the prom-
ise had not been performed. The orders could not be
secret, since they were published in The Natchez Ga-
zette. Can there be any hopes, then, of obtaining them
from the president himself? Time has been taken, and
he has very probably been consulted. Mr. Hay is not
authorized to produce the papers, although he has some
of them. As then it is probable that the heads of
department have been consulted, in the time which has
elapsed since bur application was made ; as the secretary
of the navy has refused to furnish these papers, and the
attorney will not permit us even to look at the papers in
his possession, I trust we shall be excused for not apply-
ing to the president, without the order of this court.

It is again said that this letter is confidential. I must
revert to the president once more. He is but a man, has
ears and eyes, and can see and hear like another man ;
he may be a witness like other men ; he has no preroga-
tive to have any secrets, the withholding of which may
go to the destruction of the dearest interests of an
accused man. Mr. Hay has been pleased to call the
affidavit " farcical." I wish he had been so good as to



152 TRIAL OF AARON BURR.

tell us how he would have had it drawn. [Here he read
it.] Mr. Burr has indications that it is material. The
president, in his message to congress, in announcing the
doubtless guilt of Mr. Burr, has made himself judge and
accuser. The opposition now made to its production
justifies the opinion that the letter contains more than
has yet been disclosed; that there is something more
behind the curtain. Sir, I contend that when the dearest
interests of a fellow-citizen are involved, the president's
cabinet is not too sacred to be examined and exposed to
view in a court of justice. I know that the present
president abhors such conduct; but would you permit a
future president to hunt down any man by proclamation,
declaring him to be guilty of treason, and withholding a
part of the facts on which his opinion is founded? This
puts an engine into the president's hands to destroy an
enemy, by giving a partial statement of facts, while he
publishes the most unfavorable opinion of him. Mr. Hay
indulges himself in little verbal criticisms ; he says that
" may be material," is the same thing as " may or may
not be material." Sir, Mr. Burr believes that they may
be material. With this impression he has made the affi-
davit, which in my opinion is sufficiently explicit, if an
affidavit be at all necessary. Something has been said
of unmasking our defense. Do you wish us to tell Gen-
eral Wilkinson all the grounds upon which he will be
attacked. We only say that he is grossly inconsistent
in his disclosures, and that he will be contradicted. We
can not go further while the contents of his letter are
unknown to us.

But Mr. Burr's affidavit is not to be attended to,
because he has feelings and may be misled by them !
It is the same thing with every other man. Because a
man is interested, he is more ready to make known to
the world his injuries and assert his innocence. But I
must notice that part of the argument relating to these
orders of the government, wherein my friend Mr. Mar-
tin was charged with speaking treasonably. This has
raised an amazing clamor. I added, the other day, the
illegality of these orders, as then understood by me, to
the other causes of dissatisfaction with the conduct of
the president. But I now learn that these orders were



MOTION TO PRODUCE PAPERS. 153

worse than I expected: that they were to burn, kill, and
destroy the person and property of Mr. Burr and his
party. Whether the orders were exactly to this effect
or not, I am not sure ; but I believe this statement not
to be very incorrect, and the refusal of gentlemen to
produce them proves that there is something behind ; or
why does not the attorney produce the copy he has in
possession ? Mr. Martin never did say (as I understood
him) that these orders justified an opposition to the gov-
ernment of the United States. Whatever he did, we
shall contend was legal, and not in opposition to the
government. But I will say, that if the president had
called out a military force, illegally, to destroy the per-
son or property of any man, that man had a right to
resist. The orders to destroy the person and property
of Mr. Burr, if given, were unconstitutional and unjusti-
fiable. If I am wrong in my statement I pray to be set
right; but if I recollect the constitution correctly, it does
not justify such orders in such a case as this. It only
empowers congress " to provide for calling forth the
militia to execute the laws of the Union, and to suppress
insurrections and repel invasions." The president is
sworn " to preserve, protect, and defend the constitution,
and he is to take care that the laws be faithfully
executed." " The United States are to protect each
state against invasion and against domestic violence, on
application of the legislature, or of the executive when
the legislature can not be convened." The president is to
call out a military force only to suppress insurrections or
to repel invasions. Was this either ? There certainly was
no invasion of our country by a foreign nation. If there
*had been an insurrection the state governments might
have interfered. Was there any application for aid by
any state government ? There is a third case, it must
be admitted, in which an armed force may be resorted
to. I mean infractions of the law of nations by armed
vessels. These are the only three cases in which the
president is, or can be authorized by the law of congress
under the constitution to call out a military force ; and
as none of them occurred, those orders were illegal and
unjustifiable.

Chief Justice. Does not the law of congress authorize



154 TRIAL OF AARON BURR.

the president to call out the militia to suppress an
expedition against any foreign state in amity with the
United States?

Mr. Wirt said that the act of congress passed in the
year 1794, expressly required the president to employ
military force to suppress or prevent any such ex-
pedition.

Mr. Botts said that Mr. Burr could not say more posi-
tively than that " it may be material." That as he
did not know what evidence might be adduced against
him, it could not safely be otherwise expressed.

Chief Justice. Could not the word be changed to
"will?"

Mr. Botts. For the sake of precedent I wish it
to remain as it is.

Mr. Wirt. If the word " will " were to be inserted in-
stead of " may be," the objection to the generality of
the affidavit would still remain.

Mr. Martin. Agreed ; but we will speak of that here-
after.

Mr. Wirt. Examine the letter ; it only goes to the
guilt of Mr. Burr. How can it confront Wilkinson if it
speaks of the guilt of Burr ?

CJiief Justice. But there may be contradictory state-
ments of guilt.

Mr. Wirt. But the prima facie evidence of this letter
is, that it charges guilt ; but there is no evidence of con-
tradiction, there are only vague insinuations. The law
of congress authorized the president to act as he did.
By the /th section of this law, " the navy or army of the
United States may be called out to take such ship or #
vessel," and also for the purpose of quelling any force
raised for carrying on any expedition against any coun-
try with which the United States are at peace.

Mr. Randolph proceeded. The object of requiring the
orders to be produced is, to ascertain whether they be
conformable to the law ; and no power to call out the
militia in the commencement of an expedition, or in be-
ginning to prepare the means, is given by the law. I
will suppose, for a moment, what I utterly deny to be
the fact, that Mr. Burr had actually begun an expe-
dition, had prepared arms, vessels, men, &c. ; yet, as



MOTION TO PRODUCE PAPERS. 155

penal laws are to be construed strictly, he could only be
stopped under this law, when the expedition was actually
formed and carried on. But it is insinuated to be im-
proper to ask the president, and not the officers of gov-
ernment, for those papers. The president is the person
who must be considered as having refused the papers.
All the officers act under him, and must obey him. Ap-
plication should be made to the department of state.
The chief justice said that the department of state ought
not to be applied to. [See Mr. Hay's argument.] As
to the letter, it must be in the president's bureau ; for,
as far as we can discover, it is directed to him, and he
withheld it from the legislature. But it is asked, what
is to be done with the letter, if parts of it are not proper
to be exposed? This is a most extraordinary objection.
Shall we be refused the parts important for our defense,
because other parts are improper to be published ? An
arrangement could easily be made, by which only those
parts which are proper to be disclosed, should be used.

Sir, I must make a few remarks with respect to your
exhortation, and what was said by gentlemen yesterday
and to-day. We have been charged with the policy of
exciting prejudices against the administration, rather
than defending Burr. Hints were also thrown out as to
popular opinion. Sir, I never defend my client by popu-
lar prejudice. I know it would be in vain to attempt it.
I know who has got the windward of me. They have
the public approbation strongly in their favor. I know
how impotent is one individual, when opposed to the
power of the government. 'But I hope the arguments
we have been compelled to use, will have their due
weight with the court. The gigantic magnitude of the
crime charged against us, is diminishing every day ; and
we have nothing but an interested man, whose all is at
stake, to oppose us. We demand justice only, and if
you can not exorcise the demon of prejudice, you can
chain him down to law and reason, and then we shall
have nothing to fear.

Mr. Wirt. As to the denial of the law by Mr. Ran-
dolph and the gentleman from Baltimore, I insist that
they are mistaken ; and that the law is as I have stated
it to be. The respect which I owe to this court would



156 TRIAL OF AAROft BURR.

prevent me from asserting for law, that which I do not
know to be law. Mr. Randolph has enumerated three
cases in which force could be used, and then sat down
majestically, and called the giant to be produced at
once?

Mr. Martin endeavored to explain, by saying that he
had not said that there was no such law.

Mr. Randolph explained.

Chief Justice. The truth is, that you did not advert
to the law.

Mr. Botts observed, that Mr. Wirt had said that the
law justified an order to kill Burr and his party, without
trial or condemnation.

Mr. Wirt denied it. He had only said that there was
such a law. I mentioned it before, said he, and I pointed
to it afterwards. I feel my candor impeached by the
course which gentlemen have thought proper to take.
If the court should doubt as to the construction of the
act of congress, I should wish to be heard further on the
subject.

Mr. Randolph said that he meant nothing personally
against Mr. Wirt ; but he had said that he knew no law
that was applicable ; and he now insisted that the law
was as he represented.

Mr. Martin asked leave to speak again ; and the court
was adjourned till to-morrow. The grand jury was ad-
journed till Saturday.

FRIDAY, June i2th, 1807.

Mr. Martin. I shall now, may it please your honors,
make a few observations, in which I shall endeavor to
avoid all extraneous matter. This has been uniformly
asserted by the gentlemen for the prosecution, to be a
motion addressed to the discretion of the court; and in
some degree admitted by the counsel with whom I act.
But the practice in the state from whence I came (Mary-
land) is different. Ksubpana duces tecum is never applied
for in court. It is issued, of course, by the clerk, acqui-
esced in by the parties and counsel, approved by the
court, and never opposed. According to that practice,
(and which gentlemen will excuse me for mentioning, as



MOTION TO PRODUCE PAPERS. 157

they have so repeatedly called on me to state whether
I had known such a process to issue in such a case), the
right of the prosecuting counsel to oppose the demand
of the accused is denied ; and it is no more competent
for them to do this, than to oppose the granting sub-
poenas for living evidence. It would be deemed highly
indecorous to make such an opposition. They ask us
the reason why we make this motion. We tell them
that the object of the accused, in demanding the s pro-
duction of General Wilkinson's letter, is, that we may
compare its purport with that of communications which
he has made to others. If he has made inconsistent or
contradictory statements, and we can prove that he has
done so, we certainly have a right to avail ourselves of
it, to lessen or destroy his credit. But its production
is opposed on the ground of its containing state secrets;
and that it may expose the names of others presumed
to be implicated. Is this exposure to be prevented at
the hazard of Mr. Burr's life ? Innocence can not suffer
by exposure: guilt ought to be detected. What, sir!
shall the cabinet of the United States be converted into
a lion's mouth of Venice, or into a repertorium of the
Inquisition ? Shall envy, hatred, and all the malignant
passions pour their poison into that cabinet against the
character and life of a fellow-citizen, and yet that cab-
inet not be examined in vindication of that character,
and to protect that life ? Shall a citizen be privately
accused, and the name of his accuser not even made
known to him ? No more of this letter is sought to be
used as evidence than relates to the accused. When the
letter is produced the court can judge of it, and with-
hold from the public any secrets which ought not to be
disclosed. The mere possibility of its containing state
secrets is no reason why there should be a suppression
of what is no secret. Gentlemen tell us that they are
perfectly willing we should get it ; and yet they throw
impediments in our way to prevent us from getting it !

Mr. Hay declared that he had written for the letter,
and had done everything in his power to obtain it,
though gentlemen seemed disposed not to credit him.

Mr. Martin. If we were certain that the gentleman
would succeed in his application we should be disposed



158 TRIAL OF AARON BURR.

not to trouble the court with this motion. But can we
depend on his success when the gentleman tells us that
when the papers come he will not let us look at them ?
What will be our situation after the trial is begun if the
papers do not come? It will be then too late to move
for a postponement ; and we shall lose the evidence.
We are entitled to it now, and ought to have it. I can
not say that I feel disposed to rely much on the favors
of an adverse party. " Timeo Danaos et dona ferentes"
I prefer the enjoyment of my certain rights to the
promises of him whose interest is opposed to mine.

But we are told that there ought to be respect
between the departments of government ; that we ought
to respect the president. Is it derogatory from that
respect to issue process to obtain necessary testimony
from him ? Will the president think himself insulted by
the demand of a mere document? Can he possibly
think it disrespectful? But suppose he should, is
the life of a man, lately high in public esteem, not
indeed the first, but the second citizen in our coun-
try, to be endangered for the sake of punctilio to the
president of the United States? Sir, we appeal to the
Supreme Maker that we only wish justice, and fear only
perjury. We approach with uplifted hands the sacred
altar of justice, as a sanctuary to screen us, not from
just punishment, but from unjust, rancorous persecu-
tion ! and from this sanctuary we confidently expect
protection.

But we are told that a copy will be sufficient. But
will the copy show that the original is not a forgery ?
It may prove that there is a paper, of which it is a copy,
deposited in the office ; but it will not prove that the
paper so deposited is the handwriting of General Wil-
kinson. If General Wilkinson wrote a libel and sent it
to the president, would a copy be admitted as evidence
against him on a prosecution for the libel ? Copies are
never admitted as evidence in prosecutions for libels or
in any criminal prosecutions. But gentlemen say that
General Wilkinson would not dare to deny that he had
written it if the counsel agreed that it should be evi-
dence. Would that make it in his handwriting? Gen-
eral Wilkinson has already violated his oath in willfully



. MOTION TO PRODUCE PAPERS. 159

and tyrannically violating the constitution he had
solemnly sworn to support. Has he not .exercised the
most wanton military despotism ? Has he not insult-
ingly resisted and trampled under foot the constituted
authorities, in disobeying the writ of habeas corpus?
Has he not done all these things in open defiance and in
palpable violation of the plain letter and meaning of the
constitution ? He comes here to justify these misdeeds.
A man who has done a series of bad acts will not fail to
add one more in order to conceal them from view, and
secure himself from punishment. Though he is the
pivot on which the prosecution turns, and, therefore, the
counsel for the United States uphold him, Mr. Burr
has not confidence in the honor or integrity of General
Wilkinson to trust his life to his veracity. But it is said
that if he should deny it, then we can send for the orig-
inal. He would have no occasion to deny it till the
jury were sworn to try Mr. Burr ; and if the testimony
on both sides were equal, and the scales of justice hang-
ing even, the denial of General Wilkinson put in the
scale against us M r ould predominate; then it would be
too late so send for the original to confront and disprove
his denial ; the "fiat " of life and death must be deter-
mined by the evidence before the jury ; we ought, there-
fore, to get the original now.

But the gentleman asserts that we have made the mo-
tion "in order to glance at the president. We disclaim
such motives. It would be dastardly to make a court of
justice the scene of such detraction ; the means to abuse
individuals. We deny such motives; nor are gentlemen
warranted in imputing them to us.

But the gentleman has told us that respect ought to be
paid to the officers of government. It is granted. I
once thought so. I thought that the officers of govern-
ment ought to be treated with high respect, however
much their conduct ought to be the subject of criticism ;
and I invariably acted according to that principle. If I
have changed my opinion, 1 owe it to the gentleman
himself, and the party he is connected with. They for-
merly thought differently. That gentleman and his
friends so loudly and incessantly clamored against the
officers of government, that they contributed to effect a



160 TRIAL OF AARON BURR.

change in the administration, and are now in consequence
basking in the sunshine of office ; and therefore they
wish to inculcate and receive that respect which they
formerly denied to others in the same situation. We
have a right to inspect the orders issued from the war
and navy departments ; because, if they were illegal, we
have a right to oppose them. If they were unconstitu-
tional and oppressive, it was right to resist them ; but
this is denied, because we are not trying the president.
God forbid we should. But we are trying if we had a
right to resist. If every order, however arbitrary and
unjust, is to be obeyed, we are slaves as much as the
inhabitants of Turkey. If the presidential edicts are to
be the supreme law, and the officers of the government
have but to register them, as formerly in France (the
country once so famed by these gentlemen for its progress
and advancement towards liberty); and if we must sub-
mit to them, however unjust and unconstitutional, we
are as subject to despotism as the people of Turkey, the
subjects of the former " Grand Monarques " in France, or
those of the despot Bonaparte at this day. If this were true
where would be our boasted freedom ? where the superior
advantages of our government, or the beneficial effects
of our revolutionary struggle? I will take the liberty
of explaining how far resistance is justifiable. The pres-
ident has certain known and well defined powers ; so has
a common magistrate, and so has a constable. The pres-
ident may exceed his legal authority, as well as a magis-
trate or a constable. If a magistrate issue a warrant and
direct it to a constable, resistance to it is at the peril of
the person resisting. If the warrant be illegal, he is
excused ; but if it be legal, he is not. On the same
principle, resistance to the orders of the president is
excusable, if they be unconstitutional and illegal. Re-
sistance to an act of oppression, unauthorized by law,
can never be criminal; and this is all we contend for.

Mr. Hay stated that he was sorry to interrupt
the gentleman; but, from his argument, it was evident
that the ground taken by himself and the gentlemen
associated with him in the prosecution was entirely mis-
understood. He denied that he ever said that the presi-
dent's orders are invariably to be observed. That such



MOTION TO PRODUCE PAPERS. 161



an assertion might justly be considered as incompatible
with the principles of our government. Mr. Hay then
explained what his argument had been, a/id what he
. meant to insist on as correct. That if information had
been lodged with the president that a dangerous con-
spiracy or insurrection against the government and laws,
or an expedition against a nation in amity with this
country, was secretly or openly forming, it was the duty
of the president to issue orders to suppress the insurrec-
tion or prevent the expedition ; and if he did issue such
orders or precept, it would not be lawful in an individual



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 16 of 64)