Aaron Burr.

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

. (page 19 of 64)
Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 19 of 64)
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The first paper required is the letter of General Wilk-
inson, which was referred to in the message of the presi-



OPINION ON MOTION FOR PAPERS. 183

dent to congress. The application of that letter to the case
is shown by the terms in which the communication was
made. It is a statement of the conduct of the accused,
made by the person who is declared to be the essential
witness against him. The order for producing this letter
is opposed,

First, Because it is not material to the defense. It is
a principle, universally acknowledged, that a party has a
right to oppose to the testimony of any witness against
him, the declarations which that witness has made, at
other times, on the same subject. If he possesses this
right, he must bring forward proof of those declarations.
This proof must be obtained before he knows positively
what the witness will say; for, if he waits until the wit-
ness has been heard at the trial, it is too late to meet
him with his former declarations. Those former declara-
tions, therefore, constitute a mass of testimony which a
party has a right to obtain by way of precaution, and the
positive necessity of which can only be decided at the trial.

It is with some surprise an argument was heard from
the bar, insinuating that the award of a subpoena, on this
ground, gave the countenance of the court to suspicions
affecting the veracity of a witness, who is to appear on
the part of the United States. This observation could
not have been considered. In contests of this descrip-
tion, the court takes no part ; the court has no right to
take a part. Every person may give in evidence, testi-
mony such as is stated in this case. What would be the
feelings of the prosecutor, if, in this case, the accused
should produce a witness completely exculpating himself,
and the attorney for the United States should be arrested in
his attempt to prove what the same witness had said upon
a former occasion, by a declaration from the bench, that
such an attempt could not be permitted, because it would
imply a suspicion in the court, that the witness had not
spoken the truth? Respecting so unjustifiable an inter-
position but one opinion would be formed.

The second objection is, that the letter contains matter
which ought not to be disclosed.

That there may be matter, the production of which
the court would not require, is certain ; but that, in a
capital case, the accused ought, in som& form, to have



1 84 TRIAL OF AARON BURR.

the benefit of it, if it were really essential to his defense,
is a position which the court would very reluctantly deny.
It ought not to be believed, that the department, which
superintends prosecutions in criminal cases, would be in-
clined to withhold it. What ought to be done under
such circumstances, presents a delicate question, the dis-
cussion of which it is hoped, will never be rendered
necessary in this country. At present it need only be
said, that the question does not occur at this time.
There is certainly nothing before the court which shows
that the letter in question contains any matter the dis-
closure of which would endanger the public safety. If
it does contain such matter, the fact may appear before
the disclosure is made. If it does contain any matter,
which it would be imprudent to disclose, which it is not
the wish of the executive to disclose ; such matter, if it
be not immediately and essentially applicable to the
point, will, of course, be suppressed. It is not v easy to
conceive, that so much of the letter as relates to the con-
duct of the accused can be a subject of delicacy with the
president. Everything of this kind, however, will have
its due consideration on the return of the subpoena.

Thirdly, It has been alleged that a copy may be re-
ceived instead of the original, and the act of congress has
been cited in support of this proposition.

This argument presupposes, that the letter required is
a document filed in the department of state, the reverse
of which may be and most probably. is the fact. Letters,
addressed to the president, are most usually retained
by himself. They do not belong to any of the depart-
ments. But, were the fact otherwise, a copy might not
answer the purpose. The copy would not be-superior to
the original, and the original itself would not be admitted
if denied, without proof that it was in the handwriting
of the witness. Suppose the case put at the bar of an
indictment on this letter for a libel, and on its produc-
tion it should appear not to be in the handwriting of
the person indicted. Would its being deposited in the
department of state make it his writing, or subject him
to the consequence of having written it? Certainly not
For the purpose, then, of showing the letter to have been
written by a particular person, the original must be pro-



OPINION ON MOTION FOR PAPERS, 185

duced, and a copy could not be admitted. On the con-
fidential nature of this letter much has been said at the
bar, and authorities have been produced, which appear
to be be conclusive. Had its contents been orally com-
municated, the person to whom the communications
were made, could not have excused himself from detail-
ing them, so far as they might be deemed essential
in the defense. Their being in writing gives no ad-
ditional sanctity; the only difference produced by the
circumstance is, that the contents of the paper must be
proved by the paper itself, not by the recollection of the
witness.

Much has been said about the disrespect to the chief
magistrate, which is implied by this motion, and by such
a decision of it as the law is believed to require.

These observations will be very truly answered by the
declaration, that this court feels many, perhaps peculiar
motives, for manifesting as guarded a respect for the
chief magistrate of the Union as is compatible with its
official duties. To go beyond these would be to exhibit
a conduct, which would deserve some other appellation
than the term respect.

It is not for the court to anticipate the event of the
present prosecution. Should it terminate as is expected
on the part of the United States, all those who are con-
cerned in it should certainly regret that a paper which
the accused believed to be essential to his defense, which
may, for aught that now appears, be essential, had been
withheld from him. I will not say that this circumstance
would in any degree tarnish the reputation of the gov-
ernment ; but I will say that it would justly tarnish the
reputation of the court, which had given its sanction to
its being withheld. Might I be permitted to utter one
sentiment, with respect to myself, it would be to deplore
most earnestly, the occasion which should compel me to
to look back on any part of my official conduct with so
much self-reproach as I should feel, could I declare on
the information now possessed, that the accused is not
entitled to the letter in question, if it should be really
important to him.

The propriety of requiring the answer to this letter is
more questionable. It is alleged, that it most probably



1 86 TRIAL OF AARON BURR.

communicates orders showing the situation of this coun-
try with Spain, which will be important on the misde-
meanor. If it contain matter not essential to the de-
fense, and the disclosure be unpleasant to the executive,
it certainly ought not to be disclosed. This is a point
which will appear on the return. The demand of the
orders, which have been issued, and which have been,
as is alleged, published by The Natchez Gazette, is by no
means unusual. Such documents have often been pro-
duced in the courts of the United States, and the courts
of England. If they contain matter interesting to the
nation, the concealment of which is required by the public
safety, that matter will appear upon the return. If they
do not, and are material, they may be exhibited.

It is said, they can not be material, because they can
not justify any unlawful resistance, which may have been
employed or meditated by the accused.

Were this admitted, and were it also admitted, that
such resistance would amount to treason, the orders
might still be material: because, they might tend to
weaken the endeavor to connect such overt act with any
overt act of which this court may take cognizance. The
court, however, is rather inclined to the opinion, that the
subpoena, in such case, ought to be directed to the head
of the department, in whose custody the orders are.
The court must suppose, that the letter of the secretary
of the navy, which has been stated by the attorney for
the United States, to refer the counsel for the prisoner
to his legal remedy for the copies he desired, alluded to
such a motion as is now made.

The affidavit on which this motion is grounded has
not been noticed. It is believed, that such a subpoena
as is asked, ought to issue, if there exist any reason for
supposing that the testimony may be material, and ought
to be admitted. It is only because the subpcena is to
those who administer the 'government of this country,
that such an affidavit was required as would furnish prob-
able cause to believe, that the testimony was desired for
the real purposes of defense, and not for such as this
court will forever discountenance.

When the chief justice had concluded his opinion, Mr
Mac Rae addressed the court.



INDIFFERENCE OF COUNSEL. 187

/I hope, sir, that I have misunderstood an expression
which has just escaped from your honor; but the opin-
ions of those gentlemen, who are near me, completely
confirm my own conceptions. Your honor has declared,
if I mistake not, that " if the present prosecution ter-
minate as is wished on the part of the United States."
I hope, sir, that nothing has appeared in my conduct,
nothing in the conduct of the gentlemen who are asso-
ciated with me on the present occasion, and nothing in
the conduct of the government, to produce such a con-
viction in the breast of the court. Permit me, sir, to
assure this court, if we feel any sentiment at all, that it
is one of a very different description. The impression
which has been thus conveyed by the court, that we not
only wished to have Aaron Burr accused, but that we
wished to convict him, is completely abhorrent to our
feelings. We trust, that it has rather accidentally fallen
from the pen of your honor, than that it is your deliber-
ate opinion. We wish for nothing, sir, but a fair and
competent investigation of this case. It is far from our
wishes that Aaron Burr should be convicted but upon
the most satisfactory evidence. And let me assure this
court, that nothing would more severely wound my feel-
ings, than if you or any other man should suppose it
possible, that I myself, or the gentlemen with whom I
am associated, or the government which we have the
honor to represent, should at all events, desire the con-
viction of the prisoner.

The Chief Justice replied, that it was not his intention
to insinuate, that the attorneys for the prosecution, or
that the administration, had ever wished the conviction
of Colonel Burr, whether he was guilty or innocent ; that
his assertion was this : " Gentlemen had so often, and so
uniformly asserted, that Colonel Burr was guilty, and
they had so often repeated it before the testimony was
perceived, on which that guilt could alone be substan-
tiated, that it appeared to him probable that they were
not indifferent on the subject."

Mr. Mac Rea begged leave to point out to the court a
considerable difference between the opinions and wishes
of the counsel for the prosecution ; that from the testi-
mony which they had examined, they thought it ex-



i88 TRIAL OP AARON BURR.

tremely probable that Aaron Burr was really guilty ; but
that this was very different from wishing to find him
guilty, or to convict him at all events.

Mr. Hay observed, that his own conscience was satis-
fied with the course which he had pursued in this busi-
ness ; that he should attempt to secure the same sentiment
by his future deportment ; and, provided he enjoyed that
satisfaction', he was completely indifferent to the opinion
of others ; and he should certainly pursue his own judg-
ment. He asked whether he might not send up the
witnesses to the grand jury?

Mr. Burr then pressed upon the court the necessity of
giving the supplemental charge ; that it would be of con-
siderable benefit in instructing the jury to separate what
was proper in the evidence from what was improper;
that if the charge was not delivered for several days, the
jury might in the meantime be receiving very false im-
pressions ; and that their minds might be so completely
involved in these impressions that it would be impossible
for them to separate them from their decisions, even after
the delivery of the charge. He conceived that the court
ought either to prevent the witnesses from going to the
grand jury, or to deliver its supplemental charge.

The Chief Justice replied, that on Monday morning he
would deliver the charge, if all the necessary preliminary
points could be settled.

Mr. Hay then requested the clerk to swear four of the
witnesses : Thomas Truxtun, William Eaton, Benjamin
Stoddert, and Stephen Decatur, who were accordingly
sworn.

Mr. Burr hoped, that the court would immediately
take up the supplemental charge to the jury. What
was the objection which the attorney for the United
Satets has submitted to your honor, and on which you
seemed to entertain some doubts ?

Chief Justice. It is, whether the statute of Edward
VI. is now in force in this country.

Mr. Randolph. We are ready on that point, sir.

The clerk then proceeded to call four other witnesses to
the book : but when Erick Bollman appeared, Mr. Hay
addressed the court to the following effect:

Before Mr. Bollman is sworn, I must inform the court



DR. BOLLMAWS PARDON. 189

of a particular, and not an immaterial- circumstance.
He, sir, has made a full communication to the govern-
ment of the plans, the designs, and views of Aaron Burr.
As these communications might criminate Doctor Bollman
before the grand jury, the president of the United States
has communicated to me this pardon (holding it in his
hands) which I have already offered to Doctor Bollman.
He received it in a very hesitating manner ; and I think
informed me that he knew not whether he should or
should not accept it. He took it from me, however, as
he informed me to take the advice of counsel. He re-
turned it in the same hesitating manner; he would
neither positively accept nor refuse it. My own opinion
is, that Doctor Bollman, under these circumstances, can
not possibly criminate himself. This pardon will com-
pletely exonerate him from all the penalties of the law.
I believe his evidence to be extremely material. In the
presence of this court, I offer this pardon to him, and if
he refuses, I shall deposit it with the clerk for his use.
Will you (addressing himself to Doctor Bollman) accept
this pardon ?

Doctor Bollman. No. I will not, sir.

Mr. Hay then observed, that Doctor Bollman must
be carried up to the grand jury with an intimation that
he had been pardoned.

Mr. Martin. It has always been Doctor Bollman's
intention to refuse this pardon : but he has not positively
refused it before, because he wished to have this oppor-
tunity of publicly rejecting it.
.Several other witnesses were sworn.

Mr. Martin did not suppose, that the pardon was real
or effectual ; if he made any confessions before the grand
jury, they might find an indictment against him, which
would be valid notwithstanding the pardon ; that the
pardon could not be effectual before it was pleaded to an
indictment in open court.

Mr. Hay inquired, whether Doctor Bollman might not
go to the grand jury?

The Chief Justice suggested, that it would be better to
settle the question about the validity of the pardon be-
fore he was sent to the grand jury.

Mr. Hay. I am anxious to introduce the evidence be-



190 TRIAL OF AARON BURR.

fore the grand jury in a chronological order, and the
suspension of Doctor Bollman's testimony will make a
chasm in my arrangement. He added that, however,
it was not very important whether he was sent now or
some time hence to the grand jury.

Mr. Martin. Doctor Bollman is not pardoned ; and
no man is bound to criminate himself.

The Chief Justice required his authorities.

Mr. Martin. I am prepared to show, that a party even
possessed of a pardon is still indictable by the grand jury,
unless he has pleaded it in court.

The other witnesses were sent to the grand jury, and
Doctor Bollma'n was suspended.

Four other witnesses were then sworn.

Mr. Hay. I again propose to send Doctor Bollman to
the grand jury.

At this time the marshal entered, and Mr. Hay informed
the court, that the grand jury had sent for the article of
the constitution and the laws of congress relating to trea-
son, and the law relating to the misdemeanor.

Jacob Dunbaugh was sworn and sent to the grand
jury.

Some desultory conversation here ensued between the
bar and the court respecting Doctor Bollman, when Mr.
Hay addressed the opposite counsel : Are you then will-
ing to hear Doctor Bollman indicted? Take care in what
an awful condition you are placing this gentleman.

Mr. Martin. Doctor Bollman, sir, has lived too long to
be alarmed by such menaces. He is a man of too much
honor to trust his reputation to the course which you
prescribe for him.

The *Chief Justice. There can be no question, but
Doctor Bollman can go up to the jury : but the question
is, whether he is pardoned or not ? If the executive
should refuse to pardon him, he is certainly not pardoned.

Mr. Martin. But there can be no doubt, if he chooses
to decline his pardon, that he stands in the same situation
with every other witness, who can not be forced to crim-
inate himself.

Some desultory conversation here ensued, when Mr.
Hay observed, that he should extremely regret the loss
of Doctor Bollman's testimony. He believed it to be



DR. BOLLMAN' S PARDON. 191

material. He trusted that he should obtain it, however
reluctantly given. The court would perceive that Doc-
tor Bollman now possessed so much zeal as even to en-
counter the risk of an indictment for treason. Whether
he should appear before the grand jury, under the cir-
cumstance of a pardon being annexed to his name, might
hereafter become the object of a distinct inquiry. In
the meantime, he might go up without any such notifi-
cation.

The counsel of Mr. Burr acquiesced.

Chief Justice. Whether he be really pardoned or not,
I can not, at present, declare. I must take time to de-
liberate.

Mr. Hay. Categorically then I ask you, Mr. Bollman,
do you accept your pardon ?

Mr. Bollman. I have already answered that question
several times. I say no. I repeat, that I would have re-
fused it before, but that I wished this opportunity of
publicly declaring it.

Mr. Hay. If the grand jury have any doubts about
the questions that they put to Doctor Bollman, they can
apply to the court for instructions. I assert, sir, that
Mr. Bollman is a pardoned man. I wish the opposite
counsel to prove that he is not. I therefore move, sir,
that he be sent up to the grand jury, certified by you
that he is pardoned. I make this motion, that gentle-
men, who wish to discuss the question, may have an op-
portunity of adducing their arguments.

Mr. Williams, counsel for Mr. Bollman. There are
three questions to be decided. 1st, Whether a witness be
bound to answer any questions, which tend to criminate
himself, or afford a clue to evidence for that purpose?
2d, The operation of a pardon, whether it change the
question ? but in this case, it having been refused, the
court can not notice it. 3d, Who is to be the judge, the
witness or the court, as to the propriety of answering the
question ?

On the first question Mr. Williams laid down the fol-
lowing propositions : 1st, The rule of law is, that no man
shall be bound to answer any question which shall accuse
himself. i Mac Nally's Ev. 256 ; 2 Haw. c. 46. 2d, He
shall not be bound to answer any questions which shall



192 TRIAL OF AARON BURR.

accuse himself of a misdemeanor. I Mac Nal. 256. 3d,
He shall not be called upon to caluminate himself. i
Mac Nal. 256; 2 State Trials, 822.; 1017 to 1038, Tabs-
borough's case. 4th, He is not to defame himself. I Mac
Nal. 256, 258 ; 2 State Trials, 439. 5th, Not to answer en-
snaring questions. Mac Nal. 256. 6th, To ask a man if
he is a Roman catholic is not permitted. Mac Nal. 257 ;
9 State Trials, 414 ; 2 Dougl. 593. 7th, Not bound to an-
swer any question which tends to criminate himself.
Mac Nal. 257 ; 4 State Trials. 605, 606. 8th, The case of.
Gooseley in this court, upon the trial of Reynolds; he
was called as a witness, but not compelled to criminate
himself, had been acquitted the day before by the grand
jury. So i Black. Rep. 27.

As to the second question, the rule of law is the same,
even if the man be pardoned. 1st, A witness, although
pardoned, shall not be bound to calumniate himself, for
the pardon having placed him in statu quo, no question
shall be asked him, which tends to make him contempti-
ble, or do away the benefit of the pardon. i Mac Nal.
256; 2 State Trials, 822, 1035. If Doctor Bollman were
bound to acknowledged himself acquainted with any
treason, he was guilty of a very high misdemeanor, and
therefore it would do away any benefit from the pardon.
But the court can not notice a pardon, unless it be a
pardon by statute ; for if under great seal and accepted,
yet it would be error in the court to allow if not pleaded
2 Hawk. ch. 37, sec. 59. 64, 65 ; 5 Bac. 294. If party only
entitled upon pleading it, then if he refuse, court can
not take notice of it. Here party refusing to accept,
court must say that he is not pardoned ; for until it is
pleaded, party liable, is to be punished. For if he plead
not guilty, the court will not allow him to plead it after-
wards. 2 Hawk. ch. 37, sec. 59 ; Bac. 294.

As to the third question, the witness must be the
judge of necessity: 1st, Because he can only know what
the answer is, and the bearing it will have. 2d, If the
court do decide they must know what would be the
answer ; and to get that from the witness would criminate
himsel-f, which I have shown he is not bound to do.

If it be objected, that by this means, no witness would
give evidence against the accused, it may be answered,



DR. BOLLMAX'S PARDON. 193

1st, The refusal is upon oath, because he affirms that to
answer it would be to criminate himself. 2d, You have
the same obligation on him to answer that truly, as to
speak truth upon any other subject. 3d, If he perjure
himself in that, he would certainly do it to get clear of
giving evidence against the accused. It is his privilege
not to answer any question having that tendency. This
rule is upon the following authorities : The court in a
case, in 1743, in 4 State Trials, 414, note, states, to wit,
" If you think it will criminate yourself, you need not
answer it." I Mac Nal. 257-8. It is put to the witness
and not to the court, because he knew what was to be
the answer. If it be objected, that nothing is evidence
against him, which he may say on his oath, the answer
is, that it has been otherwise decided. 2 Doug. 398.

Mr. Martin would merely suggest a few additional
authorities. Among these were 5 Bac. p. 293 ; 2 Hawkins,
ch. 57, p. 59, 60, 65. Mr. Martin contended; that these
authorities demonstrated that there were two kinds of
pardons in England ; one by parliament, and the other
under the great seal. That the first exempted an indi-
vidual from the cognizance of the court as to the partic-
ular crime for which he might stand charged : but that

o o

the latter was no bar to a judicial prosecution ; and was
not indeed effectual until it had been pleaded and allowed
in court. Mr. Martin also quoted an authority from
Salkeld to show in corroboration of Mr. Williams's posi-
tion, that no witness, however exempted from the charge
and necessity of criminating himself however responsi-
ble on that account to the law can be made to discredit
himself by his own testimony.

Mr. Williams also quoted another authority, to the
same effect, from page 258 of Mac Nally's Evidence.

Mr. Mac Rae. It is extremely uncertain, sir, whether
Mr. Bollman will or will not answer the questions, which
may be propounded to him by the grand jury. If he be
the very honorable man, whom these gentlemen have
represented, he certainly will not refuse to answer. But
if he do refuse, it can only be upon the ground that he



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 19 of 64)