Aaron Burr.

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

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of the president to that letter, which papers are supposed
to be material to the defense. As the legal mode of
effecting this object, a motion is made for a.subp(zna duces
iecum to be directed to the president of the United
States.

In opposition to this motion a preliminary point has
been made by the counsel for the prosecution. It has
been insisted by them that, until the grand jury shall
have found a true bill, the party accused is not entitled
to subpoenas nor to the aid of the court to obtain his
testimony.

It will not be said that this opinion is now for the
first time advanced in the United States ; but certainly,
it is now for the first time advanced in Virginia. So
far back as any knowledge of our jurisprudence is pos-
sessed, the uniform practice of this country has been
to permit any individual who was charged with any
crime to prepare for his defense, and to obtain the pro-
cess of the court for the purpose of enabling him so to
do. This practice is as convenient and as consonant to
justice, as it is to humanity. It prevents, in a great
measure, those delays which are never desirable, which
frequently occasion the loss of testimony, and which are
often oppressive. That would be the inevitable conse-
quence of withholding from a prisoner the process of the
court, until the indictment against him was found by the
grand jury. The right of an accused person to the pro-
cess of the court, to compel the attendance of witnesses,
seems to follow necessarily from the right to examine



OPINION ON MOTION FOR PAPERS. 173

those witnesses ; and, wherever the right exists, it would
be reasonable that it should be accompanied with the
means of rendering it effectual. It is not doubted that
a person who appears before a court under a recogniz-
ance, must expect that a bill will be preferred against
him, or that a. question, concerning the continuance of
the recognizance, will be brought before the court. In
the first event, he has the right, and it is perhaps his
duty to prepare for his defense at the trial. In the sec-
ond event, it will not be denied that he possesses the
right to examine witnesses on the question of continuing
his recognizance. In either case, it would seem reason-
able that he should be entitled to the process of the
court, to procure the attendance of his witnesses. The
genius and character of our laws and usages are friendly,
not to condemnation at all events, but to a fair and im-
partial trial ; and they consequently allow to the accused
the right of preparing the means to secure such a trial.
The objection that the attorney may refuse to proceed
at this time, and that no day is fixed for the trial, if he
should proceed presents no real difficulty. It would be
a very insufficient excuse to a prisoner who had failed
to prepare for his trial, to say that he was not certain
the attorney would proceed against him. Had the in-
dictment been found at the first term, it would have
been in some measure uncertain, whether there would
have been a trial at this, and still more uncertain on
what day that trial would take place; yet subpoenas
would have issued returnable to the first day of the term ;
and if after its commencement, other subpoenas had been
required, they would have issued returnable as the court
might direct. In fact, all process to which the law has
affixed no certain return day, is made returnable at the
discretion of the court.

General priniciples, then, and general practice are in
favor of the right of every accused person, so soon as his
case is in court, to prepare for his defense, and to receive
the aid of the process of the court to compel the attend-
ance of his witnesses.

The constitution and laws of the United States will
now be considered, for the purpose of ascertaining how
they bear upon the question. The eighth amendment



174 TRIAL OF AARON BURR.

to the constitution gives to the accused, " in all criminal
prosecutions, a right to a speedy and public trial, and to
compulsory process for obtaining witnesses in his favor."
The right, given by this article, must be deemed sacred
by the courts, and the article should be so construed as
to be something more than a dead letter. What can
more effectually elude the right to a speedy trial than the
declaration, that the accused shall be disabled from pre-
paring for it until an indictment shall be found against
him ? It is certainly much more in the true spirit of the
provision which secures to the accused a speedy trial,
that he should have the benefit of the provision which
entitles him to compulsory process as soon as he is
brought into court.

This observation derives additional force from a con-
sideration of the manner in which this subject has been
contemplated by congress. It is obviously the intention
of the national legislature, that, in all capital cases, the
accused shall be entitled to process before indictment
found. The words of law are, " and every such person
or persons accused or indicted of the crimes aforesaid
(that is of treason or any other capital offense), shall be
allowed and admitted in his said detense, to make any
proof that he or they can produce by lawful witness or
witnesses, and shall have the like process of the court
where he or they shall be tried, to compel his or their
witnesses to appear at his or their trial, as is usually
granted to compel witnesses to appear on the prosecution
against them."

This provision is made for persons accused or indicted.
From the imperfection of human language it frequently
happens that sentences which ought to be the most ex-
plicit are of doubtful construction ; and in this case the
words " accused or indicted," may be construed to be
synonymous to describe a person in the same situation,
or to apply to different stages of the prosecution. The
word or may be taken in a conjunctive or a disjunctive
sense. A reason for understanding them in the latter
sense is furnished by the section itself. It commences
with declaring that any person who shall be accused and
indicted for treason, shall have a copy of the indictment,
and at least three days before his trial. This right is ob-



OPINION ON MOTION FOR PAPERS. 175

viously to be enjoyed after an indictment, and therefore
the words are " accused and indicted." So, with respect
to the subsequent clause which authorizes a party to
make his defense, and directs the court on his application
to assign him counsel. The words relate to any person
accused and indicted. But when the section proceeds
to authorize the compulsory process for witnesses, the
phraseology is changed. The words are " and every such
person of persons accused or indicted," &c., thereby adapt-
ing the expression to the situation of an accused person
both before and after indictment. It is to be remarked,
too, that the person so accused or indicted, is to have
" the like process to compel his or their witnesses to ap-
pear at his or their trial, as is usually granted to compel
witnesses to appear on the prosecution against him."
The fair construction of this clause would seem to be,
that, with respect to the means of compelling the at-
tendance of witnesses to be furnished by the court, the
prosecution and defense are placed by the law on equal
ground. The right of the prosecutor to take out sub-
pcenas, or to avail himself of the aid of the court in any
stage of the proceedings previous to the indictment, is
not controverted. This act of congress, it is true, applies
only to capital cases ; but persons charged with offenses
not capital, have a constitutional and a legal right to exam-
ine their testimony; and this act ought to be considered
as declaratory of the common law in cases where this con-
stitutional right exists.

Upon immemorial usage, then, and upon what is
deemed a sound construction of the constitution and law
f the land, the court is of opinion that any person
charged with a crime in the courts of the United States,
has a right, before as well as after indictment, to the
process of the court to compel the attendance of his
witnesses. Much delay and much inconvenience may be
avoided by this construction ; no mischief, which is per-
ceived, can be produced by it. The process would only
issue when, according to the ordinary course of proceed-
ing, the indictment would be tried at the term to which
the subpcena is made returnable ; so that it becomes in-
cumbent on the accused to be ready for his trial at that
term.



176 TRIAL OF AARON BURR.

This point being disposed of, it remains to inquire,
whether a subpoena duces tecitm can be directed to the
president of the United States, and whether it ought to
be directed in this case?

This question orginally consisted of two parts. It
was at first doubted whether a subpoena could issue, in
any case, to the chief magistrate of the nation ; and if it
could, whether that subpoena could do more that direct
his personal attendance ; whether it could direct him
to bring with him a paper which was to constitute the
gist of his testimony. While the argument was opening,
the attorney for the United States avowed his opinion,
that a general subpoena might issue to the president ; but
not a subpoena duccs tecum. This terminated the argu-
ment on that part of the question. The court, however,
has thought it necessary to state briefly the foundation
of its opinion that such a subpoena may issue.

In the provisions of the constitution and of the statute,
which give to the accused a right to the compulsory pro-
cess of the court, there is no exception whatever. The
obligation, therefore, of those provisions is general ; and
it would seem that no person could claim an exemption
from them, but one who would not be a witness. At any
rate, if an exception to the general principle exist, it
must be looked for in the law of evidence. The excep-
tions furnished by the law of evidence (with one only
reservation) so far as they are personal, are of those only
whose testimony could not be received.' The single
reservation, alluded to, is the case of the king. Although
he may, perhaps, give testimony, it is said to be incom-
patible with his dignity to appear under the process of
the court. Of the many points of difference which exist
between the first magistrate in England, and the first
magistrate of the United States, in respect to the per-
sonal dignity conferred on them by the constitutions of
their respective nations, the court will only select and
mention two. It is a principle of the English constitu-
tion that the king can do no wrong, that no blame can
be imputed to him, that he can not be named in de-
bate.

By the constitution of the United States, the president,
as well as every other officer of the government, may be



OPINION ON MOTION FOR PAPERS. 177

impeached, and may be removed from office on high
crimes and misdemeanors.

By the constitution of Great Britain, the crown is hered-
itary, and the monarch can never be a subject.

By that of the United States, the president is elected
from the mass of the people, and, on the expiration of
the time for which he is elected, returns to the mass of
the people again.

How essentially this difference of circumstances must
vary the policy of the laws of the two countries, in refer-
ence to the personal dignity of the executive chief, will
be perceived by every person. In this respect, the first
magistrate of the Union may more properly be likened
to the first magistrate of a state ; at any rate, under the
former confederation ; and it is not known ever to have
been doubted but the chief magistrate of a state might
be served with a subpoena ad testificandum.

If, in any court of the United States, it has ever been
decided, that a subpoena can not issue to the president,
that decision is unknown to this court.

If, upon any principle, the president could be construed
to stand exempt from the general provisions of the con-
stitution, it would be, because his duties, as chief magis-
trate, demand his whole time for national objects. But
it is apparent that this demand is not unremiting, and,
if it should exist at the time when his attendance on a
court is required, it would be sworn on the return of the
subpoena, and would rather constitute a reason for not
obeying the process of the court, than a reason against
its being issued. In point of fact it can not be doubted,
that the people of England have the same interest in the
service of the executive government, that is of the cabinet
counsel, that the American people have in the servict- of
the executive of the United States, and that their duties
areas arduous and as unremitting. Yet it has never been
alleged, that a subpoena might not be directed to them.
It can not be denied, that, to issue a subpoena to a per-
son filling the exalted station of the chief magistrate, is
a duty which would be dispensed with much more che-r-
fully than it would be performed ; but, if it be a duty, the
court can have no choice in the case.

If, then, as is admitted by the counsel for the United



178 TRIAL OF AARON BURR.

States, a subpoena may issue to the president, the accused
is entitled to it of course ; and, whatever difference may
exist with respect to the power to compel the same obe-
dience to the process, as if it had been directed to a pri-
vate citizen, there exists no difference with respect to the
right to obtain it. The guard, furnished to this high
officer, to protect him from being harassed by vexatious
and unnecessary subpoena, is to be looked for in the con-
duct of a court after those subpoenas have issued ; not in
any circumstance which is to precede their being issued.
If, in being summoned to give his personal attendance to
testify, the law does not discriminate between the presi-
dent and a private citizen, what foundation is there for
the opinion, that this difference is created by the circum-
stances that his testimony depends on a paper in /his
possession, not on facts which have come to his knowl-
edge otherwise than by writing? The court can perceive
no foundation for such an opinion. The propriety of in-
troducing any paper into the case as testimony, must de-
pend on the character of the paper, not on the character
of the person who holds it. A subpoena due ~es tecum, then,
may issue to any person to whom an ordinary subpoena
may issue, directing him to bring any paper of which the
party praying it has a right to avail himself as testimony ;
if, indeed, that be the necessary process for obtaining the
view of such paper.

When this subject was suddenly introduced, the court
felt some doubt concerning the propriety of directing a
subpoena to the chief magistrate, and some doubt, also,
concerning the propriety of directing any paper in his
possession, not public in its nature, to be exhibited in
court. The impression, that the questions which might
arise in consequence of such process, were more proper
for discussion on the return of the process than on its
issuing, was then strong on the mind of the judges ; but
the circumspection with which they would take any step,
which would in any manner relate to that high person-
age, preventing their yielding readily to those impres-
sions, and induced the request, that those points, if not
admitted, might be argued. The result of that argu-
ment is a confirmation of the impression originally enter-
tained. The court can perceive no legal objection to



OPINION ON MOTION FOR PAPERS. 179

issuing a subpoena duces tecnm to any person, whatever^
provided the case be such as to justify the process.

This is said to be a motion to the discretion of the
court. This is true. But a motion to its discretion is a
motion, not to its inclination, but to its judgment ; and
its judgment is to be guided by sound legal principles.
A subp&na duces tecum varies from an ordinary subpoena
only in this: that a witness is summoned for the purpose
of bringing with him a paper in his custody. In some
of our sister states, whose system of jurisprudence is
erected on the same foundation with our own, this pro-
cess, we learn, issues of course. In this case it issues, not
absolutely of course, but with leave of the court. No
case, however, exists, as is believed, in which the motion
has been founded on an affidavit, in which it has been
denied, or in which it has been opposed. It has been
truly observed, that the opposite party can regularly
take no more interest in the awarding a subpoena duces
tecum than in the awarding of an ordinary subpoena. In
either case, he may object to any delay, the grant of
which may be implied in granting the subpoena ; but he
can no more object regularly to the legal means of ob-
taining testimony, which exists in the mind, than in the
papers of the person who may be summoned. If no in-
convenience can be sustained by the opposite party, he
can only oppose the motion in the character of an ami-
cus curicz ; to prevent the court from making an improper
order, or from burdening some officer, by compelling an
unnecessary attendance. This court would certainly be
very unwilling to say that, upon fair construction, the
constitutional and legal right to obtain its process, to
compel the attendance of witnesses, does not extend to
their bringing with them such papers as may be material
in the defense. The literal distinction which exists be-
tween the cases is too much attenuated to be counte-
nanced in the tribunals of a just and humane nation. If,
then, the subpoena be issued, without inquiry into the
manner of its application, it would seem to trench on the
privileges which the constitution extends to the accused ;
it would seem to reduce his means of defense within nar-
rower limits than is designed by the fundamental law of
our country, if an overstrained rigor should be used with



i8o TRIAL OF AARON BURR.

respect to his right to apply for papers deemed by him-
self to be material. In the one case, the accused is made
the absolute judge of the testimony to be summoned ;
if, in the other, he is not a judge, absolutely for himself,
bis judgment ought to be controlled only so far as it is
apparent that he means to exercise his privileges, not
really in his own defense, but for purposes which the
court ought to discountenance. The court would not
lend its aid to motions obviously designed to manifest
disrespect to the governmant ; but the court has no right
to refuse its aid to motions for papers to which the ac-
cused may be entitled, and which may be material in his
defense.

These observations are made to show the nature of the
discretion which may be exercised. If it be apparent
that the papers are irrelative to the case ; or that, for
state reasons, they can not be introduced into the defense,
the subpoena duces tecum would be useless. But, if this be
not apparent ; if they may be important in the defense ; if
they may be safely read at the trial ; would it not be a
blot on the page which records the judicial proceedings
of this country, if, in a case of such serious import as this,
the accused should be denied the use of them?

The counsel for the United States take a very different
view of the subject ; and insist that a motion for process
to obtain testimony should be supported by the same
full and explicit proof of the nature and application ofthat
testimony, which would be required jon a motion, which
would delay public justice, which would arrest the ordi-
nary course of proceedings, or would, in any, in any other
manner affect the rights of the opposite party. In favor
of this position has been urged the opinion of one, whose
loss as a friend, and as a judge, I sincerely deplore ; whose
worth I feel, and whose authority I shall at all times
greatly respect. If his opinion were really opposed to
mine, I should certainly revise, deliberately revise, the
judgment I had formed : but I perceive no such opposi-
tion.

In the trials of Smith and Ogden, the court, in which
Judge Patterson presided, required a special affidavit in
support of a motion, made by the counsel for the ac-
cused, for a continuance, and for an attachment against



OPINION ON MOTION FOR PAPERS. 181

witnesses who had been subpoenaed and had failed to at-
tend.

Had this requisition of a special affidavit been made as
well a foundation for an attachment as for a continuance,
the cases would not have been parallel ; because the at-
tachment was considered by the counsel for the prosecu-
tion merely as a mean of punishing the contempt, and
a court might certainly require stronger testimony to
induce them to punish a contempt, than would be re-
quired to lend its aid to a party in order to procure evi-
dence in a cause. But the proof furnished by the case
is most conclusive, that the special statements of the
affidavit were required solely on account of the contin-
uance.

Although the counsel for the United States considered
the motion for an attachment, merely as a mode of pun-
ishing for contempt, the counsel for Smith and Ogden
considered it as compulsory process to bring in a witness,
and moved a continuance until they could have the
benefit of this process. The continuance was to arrest
the ordinary course of justice ; and, therefore, the court
required a special affidavit,,showing the materiality of the
testimony before this continuance could be granted.
Pr in la facie evidence could not apply to the case; and
there was an additional reason for a special affidavit.
The object of this special statement was expressly said
to be for a continuance. Golden proceeded : " The
present application is to put off the cause on account of
the absence of witnesses, whose testimony the defendant
alleges is material for his defense, and who have dis-
obeyed the ordinary process of the court. In compliance
with the intimation from the bench yesterday, the defen-
dant has disclosed by the affidavit which I have just
read, the points to which he expects the witnesses who
have been summoned will testify.

" If the court can not, or will not, issue compulsoiy
process to bring in the witnesses who are the objects of
this application, then the cause will not be postponed.

" Or, if it appear to the court, that the matter dis-
closed by the affidavit might not be given in evidence, if
the witnesses were now here, then we can not expect
hat our motion will be successful. For it would be ab-



1 82 TRIAL OF AARON BURR.

surd to suppose that the court will postpone the trial on
account of the absence of witnesses whom they can not
compel to appear, and of whose voluntary attendance there
is too much reason to despair ; or, on account of the
absence of witnesses, who, if they were before the court,
could not be heard on the trial." (See page 12 of the
Trials of Smith and Ogden.)

This argument states, unequivocally, the purpose for
which a special affidavit was required.

The counsel for the United States considered the sub-
ject in the same light. After exhibiting an affidavit for
the purpose of showing that the witnesses could not
probably possess any material information, Mr. Standford
said, " It was decided by the court yesterday, that it was
incumbent on the defendent, in order to entitle himself
to a postponement of the trial, on account of the
absence of these witnesses, to show in what respect they
are material for his defense. It was the opinion of the
court that the general affidavit in common form, would
not be sufficient for this purpose ; but that the particu-
lar facts expected from the witnesses must be disclosed,
in order that the court might, upon those facts, judge
of the propriety of granting the postponement." (p. 27.)

The court frequently treated the subject so as to show
the opinion, that the special affidavit was required only
on account of the continuance : but, what is conclusive
on this point is, that after deciding the testimony of the
witnesses to be such as could not be offered to the jury,
Judge Patterson was of opinion, that a rule, to show
cause why an attachment should not issue, ought to be
granted. He could not have required the materiality of
the witness to be shown on a motion, the success of
which did not, in his opinion, in any degree depend on
that materiality ; and which he granted after deciding
the testimony to be such as the jury ought not to hear. It
is, then, most apparent, that the opinion of Judge Patter-
son has been misunderstood, and that no inference can
possibly be drawn from it, opposed to the principle which
has been laid down by the court. That principle will
therefore be applied to the present motion.



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