Aaron Burr.

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

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to oppose them by force ; that an act of opposition to
his precept so issued, if not treason, would be at least a
high misdemeanor ; that such a precept was very different
from an order to kill or imprison without bail or main-
prise, or to raze to the ground and destroy, as a gentle-
man had represented the orders in question. A

Mr. Martin appealed to the court and bystanders
whether Mr. Hay's assertions or arguments had not been
substantially as he had represented them, and then con-
tinued. The gentleman expressed his surprise that such
doctrines should come from me, who come from Mary-
land to instruct and enlighten the Virginia bar. I come
not to instruct or enlighten. I come to unite my feeble
efforts with those of other gentlemen in defense of my
friend, whom I believe to be perfectly innocent of the
heavy charges against him ; but their conduct evinces
that if I were to attempt it, my instructions would be in
vain. If, however, I did venture to advise him, it would
be not to accuse us of evil intentions; to mix a little of
the milk of human nature with his disposition and argu-
ments ; to make his conduct conformable to his profes-
sions, and not to be perpetually imputing guilt to us.
But the gentleman needs no advice.

I have said that I believed the orders and letter to be
necessary. I will not examine now as to their legality;
that will be discussed hereafter ; but it is evident that
they are material to try whether they were legal or not ;
and if they were resisted, whether that resistance was
legal or not. The president is the proper person to
apply to, because all the officers of the government are
under his control. But two objections have been

II



162 TRIAL OF AARON BURR.



made, which have not yet, within my recollection, been
answered : One is in the form of a question, that if this
evidence came, what would be done with it ? The answer
is obvious : that it must be retained by the court till it*
is wanted. The other objection is that there is no par-
ticular day to which the subpoena is legally returnable ;
the cause is not set on the docket to be tried on any
particular day, and therefore no particular day is named.
But this will produce no inconvenience ; in general, pro-
cess is made returnable on the first day of the term.
There the witness can attend as soon as it may be con-
venient ; that is, as soon as possible after the subpcena
shall have been served ; and it is in the power of the
court to make it returnable when they think proper.
[Here Mr. Martin made a reference to the practice in
Maryland, which was not distinctly understood.] I thank
the court for their patience in hearing these few observa-
tions ; whether time has been gained or not, the result
will show.

Chief Justice. The affidavit speaks of an answer to
General Wilkinson's letter.

Mr. Burr. Though I am extremely well satisfied with
the arguments of my counsel, as far as they have gone,
yet I shall offer a few additional remarks. The counsel
for the prosecution are mistaken when the say that it
would be improper to address the subpcena to the presi-
dent. The public papers are not kept in the department
of state, but in the separate departments according to
their nature. There is no official communication between
General Wilkinson, as a general or commander-in-chief,
and the the president; though there may be as governor
of Louisiana. The communications from him, as gen-
eral, are to the department of war. The president's letter
does not show where General Wilkinson's letter is depos-
ited. If addressed to him, it continues in his possession.
His communication to congress shows that he has it.
The course in congress is to apply directly to the presi-
dent for any papers or documents wanted, and not to
the secretaries ; because they are all under his control
and direction ; he can order them to deliver any paper
or document in their possession, and they must obey
him. Mr. Burr then- went more into detail, the substance



MOTION TO PRODUCE PAPERS. 163

of which was that there was no evidence of the commis-
sion of treason ; that the president, in his communication
to congress, and in his proclamation, grounded on Gen-
eral Wilkinson's letter to him of the 2ist of October,
insinuates nothing of a treasonable nature; that in
these he states that an attack on the Spanish colonies
was supposed to be intended ; but if there had been any
just reason for believing that treason had been commit-
ted, the president would certainly have stated it ; that
he had been denounced by the highest authority in the
country ; that this denunciation had created a general
prejudice against him ; that the government ought to
furnish all the means in its power to remove the unjust
prejudices thus improperly excited against him ; that he
asked no privilege but what the laws conferred on ever)'
citizen. He demanded these papers, not for the purposes
of detraction, as had been unjustly asserted ; but to dis-
cover facts tending to prove his own innocence. He
denied, in strong terms, having advised or stimulated his
counsel to abuse the administration ; that, on the con-
trary, he had charged them to avoid all irritating reflec-
tions. He concluded by expressing his hopes that the
motion would be granted ; that if the court made the
order, the papers would be obtained without delay ;
whereas a previous application for them without such
order, if unsuccessful, would produce considerable delay,
which he wished very much to avoid ; and that the
approach of General Wilkinson required a prompt
opinion of the court to prevent delay.

Mr. Hay observed that he was much struck with the
boldness of some gentlemen on a subject on which they
were not correctly informed. He said that no opportu-
nity was lost to abuse the administration. He animad-
verted on the argument of Mr. Randolph the other day
That he had proclaimed loudly that some parts of the
orders of the navy department had excited in his mind
the most uneasy sensations. He confidently stated that
these orders were most cruel and illegal ; that they were
to kill and destroy Mr. Burr, and burn his property
wherever found. That the purpose of gentlemen was
easily discerned; that Mr. Martin, in his vehement man-
ner, talked about the hell-hounds and blood-hounds of



164 TRIAL OF AARON BURR.

persecution having been let loose by the president or his
instrumentality, to hunt down and destroy Mr. Burr.
That he was sorry that gentlemen should ascribe such
acts to the government as not only it had never done,
but as it was incapable of doing. T.o silence their
clamors, and put an end to such declamations about
cruelty and tyranny, he said that he would produce a
copy of the order from the secretary of the navy, to
which all their complaints referred ; that he would read
it, and it would appear to be legal and proper; and that,
notwithstanding all the invectives against the administra-
tion on account of it, there was no just cause of com-
plaint against it.

The counsel of Mr. Burr wished to inspect the paper
before it was read. Mr. Hay offered to read it, but
refused to let them examine it. They then objected to
its being read, and insisted that it was the undoubted
right of counsel, iri every case, to examine all documents
intended as evidence before they could be read.

Mr. Hay then observed that their objection to its
being read showed clearly their object, and was a pal-
pable contradiction to their statement ; that they used
it as a mere pretext. Believing it not to be in court,
they loudly dejnanded it as a document essential to their
client and demonstrative of oppression in the govern-
ment ; but the moment it is offered to be read they
object to it.

Mr. Martin vindicated Mr. Burr from the charge of
having stimulated him to make any severe reflections ;
that Mr. Burr had, in fact, endeavored to restrain him ;
but that he was urged by his own feelings to express his
sentiments, contrary to the directions of his client.

Mr. Botts vindicated Mr. Randolph (who was absent)
from the charge preferred against him by Mr. Hay.
He did not believe that Mr. Hay had intentionally mis-
represented anything ; but that he was incorrect in say-
ing that the counsel of Mr. Burr had expressed com-
plaints without cause, and exhibited charges without any
evidence. We are, said Mr. Botts, in a delicate situ-
ation : great prejudices have been excited, and the popu-
lar voice is raised against us. But we hope that truth
and justice will prevail. We do not wish to accuse the



MOTION TO INSTRUCT GRAND JURY. 165

executive unjustly ; innocence ought to be presumed until
guilt appears. We have prima facie evidence of what
we allege ; but still we hope that the honor and charac-
ter of the' government will be found to be unsullied, and
that all doubts respecting its conduct will be cleared up.
This can be most effectually done by producing freely,
without reserve or opposition, all the testimony in its
power, which we demand as material to our defense.
Mr. Burr wished us not to wander into charges against
the administration unless the proofs of its improper acts
were undubitable, and they were clearly connected with
this cause.

The chief justice, after having expressed the regret of
the court at the length of time already consumed in the
discussion of this motion, proposed that no more than
the usual number of counsel should speak on incidental
points. That the court was unwilling to check gentle-
men in their arguments, but it was hoped that hereafter
they would endeavor to avoid repetitions, and the un-
necessary waste of time.

Mr. Hay again proposed to read the letter of the
secretary of the navy.

Chief Justice. The propriety of reading depends on
its authentication.

Mr. Hay. I suppose the gentlemen wish to see it,
though not legally authenticated.

Mr. Martin expressed a doubt whether this was the
same order; he presumed that there were more orders.

Mr. Randolph (who had returned into court) wished to
see it, in order to ascertain whether it was the same
which they had seen in The Natchez Gazette.

Mr. Hay declared his belief that it was the same, but
as gentlemen did not wish to hear it he put it up again.

Mr. Burr addressed the court. He observed that
this was perhaps the most proper time for renewing the
motion which he had made some time ago, about giv-
ing more specific instructions to the grand jury on cer-
tain points of evidence. These points he had reduced
to writing, in the form of abstract propositions, which he
would take the liberty of reading to the court ; the fol-
lowing is a list of thpse propositions, with the authori-
, ies cited to support them :



1 66 TRIAL OF AARON BURR.

First. That the grand jury can not, consistently with
their oath find a bill except on such testimony as would
justify a petit jury to find the prisoner guilty. Foster,
232, 8; 3 Institute, 25; 2 Id., 384; Dal ton, 519; 2
Judge Wilsons Works, 364 ; 3 St. Tr., 419, 420; and Sir
John Hawles' Observations, 4^. Tr., 133 ; 4 Black. ; 302-
306, 2 Hale, ch. 8, 61, Wilson's edition with Wilson's
note; 2 /fa/^, ch. 22, 157, with Wilson's note; 2 Euno-
mos Diet. 39, 124, 5, 6, ; 5 S/. Tr. 3 ; .fiwter, 232,

o
o.

Second. That no testimony or witness ought to go
to the grand jury, but what is legal and competent
to support the charge about which the inquiry is made.
Danby's case, Leech, 443, c. 187 ; Dodd's case, Id., 59, c.
77 ; Commonwealth of Virginia v. Hopbam, Warles &
Dtnvs, before the general court at Williamsburg.

Third. That the grand jury can not return a bill for
treason for levying war against the United States, unless
they have two witnesses who swear to the overt act of
the treason laid in the indictment ; both which wit-
nesses are believed by them. East's Crown Law, ch. 2,
64.

That both must be believed. 3 St. Tr., 56.

Fourth. That there must be two witnesses to the
grand jury of each overt act, follows also as a conse-
quence from the former position, that they must have
such testimony as would be requisite for the petit
jury.

Fifth. That the grand jury can not find a bill for
treason in consequence of any confessions made, though
proved by two witnesses. Foster, 241 ; 4 Black. ; Con-
stitution of the United States, article 3, 3 ; Graydons
Digest, n; Judge Iredell's charge, Fries s Trial, 171,
1 72 ; Easfs Crown Law, 96, 97.

Sixth. That as the grand jury only hear evidence
on the part of the state, if upon that evidence they
entertain a doubt of the truth of the charge, they ought
not to find a bill ; as the presumption is ever in favor of
innocence. I Mac N., 2- 6.

Seventh. No act of a third person can be given in
evidence against the accused to prove him guilty of
treason or of a misdemeanor under the law of the 5th



MOTION TO INSTRUCT GRAND JURY. 167

June, 1794, unless that act is proved to have been com-
mitted by the advice, command, direction, or instigation
of the accused, if done in his absence, or if done in his
presence, unless it be proved that the accused was aiding
or assisting.

An act shall bind a person connected with the act, but
the declaration shall not bind him, because no part of
the act. Mac N., 615, 616.

Eighth. The declarations of others can not be given
in evidence on the present inquiry to support the charge
of treason or of a misdemeanor under the act of congress
1 5th June, 1794, unless it be proven that the accused was
present and assented thereto.

East, 96. In case of conspiracy, confessions good
against him who makes them, but not against others,
Peake,c}\. i ; Admiss. Hearsay Kelyng, 18; Mac N., 40,
41. Confessions of one can not be read against others.
3 St. Tr., 57.

A relation of what had been done, no evidence. Mac
N.,6i6.

Declarations of others are not evidence. 4 St. Tr. 192-
196.

6 St. Tr., 218. In the presence of others, they acqui-
escing. Mac N., 621.

Mr. Hay opposed this proceeding. He contended
that the court had no right to give specific instructions
to the grand jury after they had been once generally
charged by the court; that such a course was contrary
to all law and all precedent ; that not a single instance
could be quoted to support it ; and that there were
cogent, and in this instance particular reasons why crim-
inal prosecutions should be suffered to progress without
these interruptions. He further contended that the chief
justice had anticipated such a situation ; and that the
language in his charge clearly indicated his expectation
that bills would be laid before the grand jury on the
ground of treason ; and that under this expectation the
chief justice had dilated on the nature of treason, and
given all the information which he thought material ;
that there was no reason at all why Aaron Burr should
enjoy greater privileges than any other man, or why he
should rake up all the old, musty, and absurd doctrines



168 TRIAL OF AARON BURR.



of antiquity, and have them enlisted in his service ; and
that he stood on the very same ground as any other
man. That perhaps all the propositions on Mr. Burr's
list would not be wanting at all ; or if there should be
any necessity for them, that these questions might be
discussed as they successively arose ; that these discus-
sions would necessarily consume much of his own time
as well as the time of the court, which might probably
be devoted to more useful purposes; and after all, the
grand jury might refuse any instructions, and in that
case how could they be controled by the court ? If the
grand jury determined to pay no regard to it, of what
avail would be the recommendation of the court? (for it
was in fact no more.) And if they were to find, accord-
ing to their own opinions, and in the old way, how could
the court know of this variation, and how could they
rectify it ?

Mr. Botts replied. He stated that the gentleman had
demanded precedents: and yet it was but the other day
when that very gentleman had inquired why we so con-
stantly resorted to precedents, and why we did not
sometimes consult the principles of common sense : that
the grand jury were not that lawless mob which the gen-
tlemen had seemed to represent them ; and that they
would not certainly act against the law when it was pro-
perly expounded to them by the court ; that although
the chief justice's charge was extremely able, yet it was
impossible that it could be so comprehensive as it might
now be made from the information which has since
occurred ; and that the very necessity of giving any
charge at all, showed the propriety of perfecting it ; that
it was not Mr. Burr's desire to consume much time, as it
was his most earnest wish to end at once the bonds of
recognizance and the public prejudice which surrounded
him ; and that they were even willing to limit their
share of the discussion to a particular time.

The chief justice said that it was usual and the
best course for the court to charge the jury generally
at the commencement of the term, and to give their
opinion on incidental points as they arose, when the
grand jury themselves should apply to them for informa-
tion ; that it was manifestly improper to commit the



MOTION TO INSTRUCT GRAND JURY. 169

opinion of the court on points which might come before
them to be decided on the trial in chief; that he had
generally confined his charges to a few general points,
without launching into many details; one reason was,
that some of the detailed points might never arise during
the session of the grand jury, and any instruction on them
would of course be unnecessary ; another was, that some
of these points might be extremely difficult to be decided,
and would require an argument of counsel ; because
there was no judge or man who would not often find the
solitary meditations of his closet very much assisted by
the discussions of others ; that he would have had no
difficulty, however, in expanding his charge if he had
been particularly requested to do it, or if he could have
anticipated any necessity for it, and that he would have
no difficulty in giving his opinions at this time on cer-
tain points on which he could obtain a discussion by the
counsel, provided he did not thereby c'ommit his ques-
tion on the trial in chief.

Mr. Burr then requested him to inspect the list of
propositions, and the authorities referred to in support
of them, which he had prepared ; he might then deter-
mine which of those points would admit of the delivery
of his opinion, and which would not.

SATURDAY, June i3th, 1807

Mr. Burr thought proper to mention that his counsel
had understood that a supplemental charge had been
written by the court, and put into the hands of the
attorney of the United States, and that it was to be
shown to his counsel before it was delivered. That for
want of time, or some other cause, it had not yet been
submitted to them. The court had yesterday requested
and obtained a copy of his propositions, that they might
judge of their application, and if satisfied on that point
that they might give additional instructions to the grand
jury. Though the court might not at first have per-
ceived the necessity of a supplemental charge, yet it
must now appear that each of his propositions must
come before the grand jury. If the court were satisfied
that they ought, they would have such additional instruc-



1 7 o TRIAL OF AARON BURR.

tions as were necessary; and if they had doubts, they
would require an argument. He was ready to demon-
strate the truth of every one of them. That he was
ready to argue three weeks ago, and was desirous to save
time, and would support them by written or oral argu-
ments, as .the court might think proper.

The Chief Justice stated that he had drawn up a
supplemental charge, which he had submitted to the
attorney for the United States ; with a request that it
should also be put into the hands of Mr. Burr's counsel ;
that Mr. Hay had, however, informed him, in the con-
versation which he had just had with him, that he had
been too much occupied himself to inspect the charge
with attention, and deliver it to the opposite counsel ;
but another reason was that there was one point in the
charge which he did not fully approve. He should not,
therefore, deliver his charge at present, but should re-
serve it until Monday. In the meantime Mr. Burr's coun-
sel have an opportunity of inspecting it, and an argu-
ment might be held on the points which had produced
an objection from the attorney for the United States.

Mr. E. Randolph. Is it the wish of the court that the
argument should be carried on orally, or in writing?

Chief Justice. I am willing to see the remarks, on
both sides, in writing.

Mr. Hay objected to this method, from the excessive
labor which it would impose upon them either way.

The Chief Justice declared that it was perfectly indif-
ferent to him.

Mr. Martin assured the court that it was perfectly con-
venient to him to argue the point either orally or in writing.

Mr. Wtckham stated that the attorney for' the United
States wished to object to certain propositions which Mr.
Burr had submitted to the court ; that he was ready to go
into the discussion immediately ; that the attorney for the
United States preferred an argument before the court to
one in writing; and that this was, in fact, the very course
which Mr. Burr's counsel had first recommended. Mr.
Wickham hoped that this supplemental charge would be
given to the jury before the witnesses were sent up ; that
the counsel for the prosecution preferred the contrary,
but which was, in fact, the most improper course.



MOTION TO INSTRUCT GRAND JURY. 171

The Chief Justice observed that the court would also
have wished that the charge should have been delivered
before the witnesses were sent up ; but that it was almost
indifferent to him whether the testimony was submitted
to the grand jury before or after the delivery of the
charge ; that it was often the custom for the petit jury
itself to hear the testimony before 'the law was ex-
pounded, and the same practice might extend to the
grand jury; for it was extremely easy for them, after
they had heard the testimony, to apply the instructions
of the court, and distinguish those parts which were
admissible from those that were not so. It was not, for
instance, absolutely necessary for them to know, previous
to the delivery of the charge, that two witnesses were
necessary to prove the overt act. When the charge had
been delivered, that principle would apply to the testi-
mony which they had actually heard ; and that it was
desirable that though the charge should precede the
testimony, yet it was not so essential as to interrupt the
proceedings.

Mr. Randolph conceived it far more important to give
the supplemental charge before than after the exhibition
of the testimony ; that with one set of principles on
their mind the grand jury would frequently ask ques-
tions in one point of view, which they would not under
other impressions ; and that the supplemental, like the
original, charge ought to precede the evidence.

Mr. Martin observed that there was this considerable
difference between a grand and a petit jury, that when any
doubt arose about the propriety of testimony before the
petit jury, the court would be present and ready to de-
cide ; but the grand jury has not the same aid of the
judgment of the court in selecting the testimony.

The chief justice said, that the necessity of giving a
supplemental charge, at this time, was not so manifest,
as in his original charge he had expressed his ideas on
the nature of treason. That he stated this crime to con-
sist in an actual " levying of war," and that, of course,
the grand. jury would have to inquire into the existence
of overt acts ; that, from this statement, it would readily
occur to the jury that no matter what suspicions were
entertained, what plans had been formed, what enter-



T72 TRIAL OF AARON BURR

prizes haa been projected, there could be no treason
without an overt act, and without some overt act, no
crime of treason had been committed.

The discussion of this question was at length waived,
when the chief justice delivered the following opinion on
the motion to issue a subpcena duces tccum directed to
the president of the United States :

77/1? Chief Justice. The object of the motion, now to
be decided, is to obtain copies of certain orders, under-
stood to have been issued to the land and naval officers
of the United States for the apprehension of the ac-
cused, and an original letter from General Wilkinson to
the president in relation to the accused, with the answer



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