Aaron Burr.

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

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daughter. Beautiful and accomplished beyond her sex,
she grew up no ordinary woman, and her love for her
father partook of the purity of another world, being holy,
deep, and unchanging. No sooner did she hear of his



PREFACE. xv

arrest, than she fled to his side, and even the character of
Burr borrows a momentary halo from her. Once, and once
only, does he melt when he tells her that he will die worthy
of himself. Although Colonel Burr had been arrested in
February, and Blannerhasset in July, the trials of these
two with their companions, John Smith of Ohio, Comfort
Tyler, Israel Smith of New York, and Davis Floyd, were
oft postponed. For twelve days the court was engaged in
obtaining a jury, and in discussing points of law. Never
before in the history of the country was there so grand a
display of legal acumen and forensic talent. Upon the
bench sat the venerated Marshall, whom it was rumored
might shrink from his duty, as in his private character he
had ordered or permitted something to be inserted in the
" Argus," exculpatory of Colonel Wilkinson. On that
point Blannerhasset says in his diary, " I am certain, what-
ever dust or insects may have sought the judge's robes
while off his back, none will venture to appear upon the
ermine that bedecks his person." Calm, dignified, and
attentive, the chief justice analyzed the arguments of coun-
sel, and noted their relevancy with the nicety of a critic, jus-
tifying the reputation which he always had of spotless
purity and soundness of judgment without an equal. At
the bar was Wirt, whose fervid and soul-thrilling elo-
quence, even in this very trial, placed him at once amongst
the foremost of American orators. With a brilliancy of
imagination which startled his auditors he swayed the minds
of the jury with wonderful effect. Then there was Luther
Martin, whom Blannerhasset calls, " the rear guard of
Burr's forensic army," who had previously distinguished
himself in the trial of Judge Chase before the United States
Senate, and who on this occasion made a speech of four-
teen hours' duration. Every word that he uttered like a
two-edged sword pierced the arguments of his opponents at
every point. There was the Attorney-General, George Hay,
whose insolence to Mr. Pritchard some time before had oc-
casioned the latter to throw a plate at his head, which ter-



xvi PREFACE.

minated the affair, and kept Mr. Attorney forever after
within the bounds of civility. Hay was always ready to
take advantage of suspicious circumstances, and wield them
with tenfold force against the prisoner. There was Ran-
dolph, slow, calculating, and careful, building up the vul-
nerable points of his case against the attacks of his adversa-
ries. There was Botts facetious, and playful ; sometimes
descending to the ludicrous, but often rising with convinc-
ing argument to the grand. There was Wickham, dignified
and commanding, taking up the subject with a master-
hand, and holding it to view in every conceivable light.
And there was Burr, proudly pre-eminent in point of in-
telligence to his brethren of the bar, who had been Vice-
President of the United States, and now accused of the
highest and darkest crime in the criminal code. Standing
before the supreme tribunal of his country and with the
eyes of the nation upon him, he was, in the opinion of
many, already condemned. He had the talent, and tact, and
the resources of the Government to contend against, and
every faculty of his mind was exerted in his own defense.
The magnitude of the charge, the number of persons in-
volved, the former high standing and extraordinary for-
tunes of the accused, had excited an interest in the commu-
nity such as never before had been known. The witnesses
against him were mostly Government officers, with whom,
at one time or another, he had been in some way con-
nected. On the charge of treason the Court took twenty-
six days to complete its inquiry, and the evidence of sixty
witnesses had to be taken. There being no suitable quarters
in the city, Burr was confined in the Penitentiary, in the
suburbs of Richmond, from whence he was marched every
day into Court escorted by a body guard of two hundred
men, which would have done honor to an Eastern prince.
In addition to the charge of treason, there was one of mis-
demeanor. The question before the Chief Justice was
whether a man once put in jeopardy of life in one district,
for treason charged to have been therein committed, and



PREFACE. xvii

acquitted thereof, may afterwards be put to answer charges
of other overt acts of the same treason in another district.
On the ist of September the jury returned a verdict-r-that
Aaron Burr is not proved to be guilty under the indictment
by any evidence submitted to us; we, therefore, find him
not guilty. Burr objected to the verdict as being incorrect
in point of form, and asked that it might be given in the
usual way simply "not guilty." Mr. Hay answered
that in fact it was a verdict of acquittal, and that it should
be entered in the jury's own words. He said, " There are
no precise words by which the jury should be governed."
Burr replied, " They have no right to return a written verdict
at all ; they have no right to depart from the usual form."
He then called for the recital of the common directions
given the jury by the clerk. They were read and end as fol-
lows : " If you find him guilty, you are to say so : if not
guilty, you are to say so, and no more." "The jury can not
be indulged," said Burr ; " they have defaced a paper be-
longing to the Court, by writing upon it words which they
had no right to write. They ought to be sent back."
After a short consultation it was agreed that the simple
verdict of " not guilty " might be entered on the records of
the Court. The question was now about the second in-
dictment, and Col. Burr said he was ready to enter an ap-
pearance for the misdemeanor, insisting, till he did so, he
was not legally in Court on that charge. Wickham and
Botts supported their argument with not only English and
Federal authorities, but with the doctrines of Attorney-
General Hay himself, delivered by him on Chase's trial,
which they dressed up in such comments and strictures as
exhibited Hay the most bewildered spectacle of confusion
and mortiacation. The Chief Justice deferred his opinion
to the following day, and on the ninth of September Burr
was again arraigned upon an indictment for a misdemeanor
which consisted of seven counts, the substance of which was
that Aaron Burr did set on foot a military enterprise to
be carried on against the territory of a foreign prince, viz.,



xviii PREFACE.

the province of Mexico, which was within the territory of
the King of Spain, with whom the United States were at
peace. After the prosecution had examined some of the
witnesses, and the Court had decided that the testimony of
the others was not relevant, the District Attorney made a
motion to discharge the jury. To this motion Burr ob-
jected, insisting upon a verdict. This was on the fif-
teenth of the month. The court being of opinion that
the jury could not at this stage of the case be discharged,
a verdict of acquittal was given.

After his trial at Richmond, Colonel Burr sailed for
England, where he made unsuccessful attempts with the
government. He was ordered to leave London by Lord
Liverpool, and proceeded to Sweden ; after which he
travelled through Germany to Paris, where he was refused
a passport by the American Minister. Finally, four years
after, he returned to New York, and died without any
further encouragement being extended from any quarter to
his daring project,




THE



TRIAL OF AARON BURR



CITY OF RICHMOND, FRIDAY, May 22, 1807.

Court of the United States for the fifth circuit and
district of Virginia.

PRESENT JOHN MARSHALL, chief justice of the
United States ; and CYRUS GRIFFIN, judge of the dis-
trict of Virginia.

Counsel for Aaron Burr : Edmund Randolph, John
Wick ham, Benjamin Botts, and John Baker.

Counsel for the prosecution : George Hay, district-
attorney, William Wirt, and Alexander Mac Rae.

The clerk having called the names of the gentlemen
who had been summoned on the grand jury, Mr. Burr's
counsel demanded a sight of the panel; which was
shown to them ; when Mr. Burr addressed the court to
the following effect :

" May it please the court,

" Before any further proceeding with regard to swear-
ing the jury, I beg leave to remark some irregularity
that has taken place in summoning part of the panel.
This is the proper time to make the exception. I un-
derstand that the marshal acts not under an act of con-
gress, but a law of the state of Virginia, by which he
is required to summon twenty-four freeholders of the
state to compose the grand jury. When he has sum-
moned that number, his function is completed. He can-
not on any account summon a twenty-fifth. If, there-
i. i



2 TRIAL OF AARON BURR.

fore, it can be made to appear, that the marshal has
struck off any part of the original panel, and substituted
other persons in their stead, the summons is illegal.
Such is the law and the dictate of true policy ; for in im-
portant cases, like the present, a different course would
produce the most injurious consequences. I consider it
proper to ask the marshal and his deputies, what persons
they have summoned, and at what periods; whence ,it
may be known, whether some have not been substituted
in place of others struck off the panel. When we have
settled this objection, I shall proceed to exceptions of a
different nature."

Mr. Botts observed, that it was the 2Qth section of the
judicial act, which refers to the state law, besides a dis-
tinct act, which enumerates other duties; that neither of
these laws specified any particular mode by which mar-
shals were to summon juries in different districts. By
the first section of the Virginia act, the sheriff is to sum-
mon twenty-four freeholders, any sixteen of whom ap-
pearing are to constitute a grand jury. The first section
does not state that he is to make a return, but a distinct
section inflicts a penalty, if he violate the duties pre-
scribed by the first section; that is, if he fail "to sum-
mon a grand jury, and return a panel of their names."
Colonel Burr is anxious to have nothing more than a fair
trial. The reports circulated, and prejudices excited
against him, justify a strict attention to his rights. He
therefore asks the strictest scrutiny into past and subse-
quent measures. An important interest is involved in
the authority of the grand jury. And if there be any
irregularity in the marshal's summons, it ought now to
be rectified. By the act of Virginia, a sheriff, and by
the act of congress a marshal, are mere ministerial officers
bound to discharge certain duties. He is to summon
twenty-four jurors. When that act is done, it is irrevo-
cable, and his duty at an end. This court only possesses
the authority to excuse any of those who have been sum-
moned, and direct the marshal to substitute others, till
the necessary quorum be completed.

Mr. Botts further observed, that he had no intention
of casting the slightest imputation on the marshal for his
conduct in this transaction ; that his honorable character



ARGUMENT. 3

placed him above suspicion, and the fault, if any, must have
arisen from official misconceptions; that he did not pro-
pose to interrogate Major Scott in any manner that might
possibly criminate him ; but that the court had a right
to inquire, and if any error was committed, to correct it.
That if he was overruled in this motion, he would then
crave leave of the court to produce testimony as to the
facts ; that he took it for granted, that if a single mo-
ment intervened between the summoning of a juror and
the meeting of a court, the court alone had the power to
discharge him; that with regard to the present panel it
would appear, that the marshal after summoning one in-
dividual, had notified another to attend ; in other words,
he had summoned him according to the legal definition
of the term " summons." That this was not the duty of
the marshal ; that when the original panel was complete,
his duty was at an end, and he must return that very
panel precisely, without any addition. What mischiefs
might not result from a different practice, particularly in
cases of extreme importance, where the government was
concerned, since the marshal himself depended on the
government for the duration of his commission ?

Mr. Botts therefore contended, that the ministerial'
duties of a marshal ceased with the summons which he
gave ; and that, if the jurors did not appear, it was the
privilege of the court to supply any deficiency. He
cited the decision of the supreme court of the United
States in the case of Marbury v. Madison, to show, that
when the ministerial duties of an officer were discharged,
his power necessarily ceased, and his act was irrevocable.
This doctrine was of universal application in law, both in
America and England. It was applicable to a sheriff,
after he had served a common writ of fieri facias. If
he summon a petit juryman, who fails to appear before
the court, it is the right of the court alone to fine or to
excuse him. Mr. Botts then concluded, that he would
ask the marshal who were the twenty-four whom he had
first summoned ; for that may constitute the grand jury.
Every one beyond that number was illegally summoned.
It was the right of Colonel Burr to demand such a pur-
gation of the panel.

Mr. Hay, the district-attorney, observed, that he was



4 TRIAL OF AARON BURR.

not prepared to make any observations upon this ques-
tion, as it was a point which they had never before had
any .occasion to consider; that the proposition was, how-
ever, of no great importance, since, if any of them were
set aside, there would still be a sufficient number to con-
stitute a grand jury; or the deficiency might be supplied
by a new summons among the bystanders. If there
were, in reality, any objection to the regularity of the
summons, he was willing to accommodate the opposite
counsel ; that he was not certain how far it was strictly
proper to interrogate, or examine into the time of slim-
moning the different members of the panel, as he had
not been very conversant with business of this kind.
He was, however, content that the court should decide ;
and if it should be their opinion that the marshal should
be interrogated, how many jurymen he had summoned,
and when he had discharged them, he should feel perfect-
ly satisfied.

Mr. Wickham. Before we go into this inquiry, we
declare, that we mean no personal imputation upon the
respectable gentleman who is the marshal. His intentions
were certainly pure. It is an error of judgment alone
to which we object. But in the present case, where
such important interests are at stake, and where such
unjustifiable means have been used to prejudice the pub-
lic mind against Colonel Burr, it is his right to take every
advantage which the law. gives him. We are prepared
to show, that when a person is bound in a recognizance,
he has a right, at this period of the business, to come
before the court with his exceptions to the grand jury;
and if in any other case, why not in one of such deep
importance as the present? In support of this position,
Mr. Wickham cited 2 Hawkins's Pleas of the Crown,
page 307, sect. 16, and 3 Bacon's Abridgment, page 725.
Whether we might afterwards file a plea in abatement
for the error committed, is not now to be discussed. It
is Colonel Burr's anxious desire, that this whole affair
should terminate here, and that this grand jury may
determine his case.

The chief justice called for the law of Virginia.

Mr. Hay read it Revised code, 100, 2. The con-
struction put upon this part of the law seems to me far



ARGUMENT.

more rigid than sound sense warrants. By this law, the
marshal is empowered to select twenty-four freeholders,
legally qualified to serve* on the grand jury. The officer,
in many cases necessarily ignorant of the situation of an
individual, summons him to attend. The person in-
forms him, that, for some personal misfortune, some do-
mestic calamity, or some indispensable business, it is im-
possible for him to attend. We ask, whether the accu-
rate construction of this law forbids him to summon
another in his place ? Where is the legal authority to
prove, that when he has once summoned twenty-four
jurymen, his ministerial function is at an end ? The mo-
ment it appears in court, that the legal number of jurors
is not present, he is to fill up his panel from the bystand-
ers. We appeal to the candor of the opposite counsel,
to point out the real distinction between the two cases.
Why should the marshal have the right to fill up his
panel, when it is once ascertained before the court, that
some of the jurymen have not actually attended, and
yet deny him the right of substituting others in the
place of those he has summoned, but who, he is satisfied,
before the meeting of the court, can not attend ? In-
stead of a difference, the two cases are strikingly paral-
lel. What the fact was, Mr. Hay said he knew not, but
he believed that some of those who were said to be sub-
stituted had not been positively summoned by the mar-
shal, but had been merely applied to, to know whether
they could attend.

Mr. Wickham contended, that the counsel for the Uni-
ted States had not fairly met the question. There is a
doubt whether Colonel Burr has not a right to come for-
ward with his exceptions now to the grand jury. As the
authorities on this subject are short, he would take the
liberty of reading them to the court. (He read those
he before cited.) From these authorities it manifestly
appears, that a person bound in a recognizance, had a
right before the grand jury were sworn, to state his ex-
ceptions to the mode of impaneling them. It is for this
reason th.it Colonel Burr has, in this stage of the busi-
ness, come forward with his objections. Mr. Hay con-
tends, that, our construction of the law is more rigid than
f ound policy demands. But when the words of the la\tf



6 TRIAL -OF AARON BURR.

are obvious, why should we resort to a dubious construc-
tion ? " Ita lex scripta est." But if we are to wander
into the wide field of policy, how completely would
it bear against the gentleman's cause ! God forbid, sir,
that I should utter the slightest imputation upon the
character and official conduct of Major Scott ; they soar
above suspicion. But if once the marshal, who holds
his commission at the will of the government, were per-
mitted to alter the panel as he pleased, the life of every
citizen in this state would be held at his pleasure. It is
therefore essentially important, that the ministerial of-
ficer should rigidly pursue the statute from which he de-
rives his authority. And what is his duty in the present
instance ? He is to summom twenty-four freeholders to
serve on the grand jury, any sixteen of whom may con-
stitute a quorum. Mr. Hay had declared, that this provi-
sion was mere matter of form ; for if there be not a suffi-
cient number present to constitute a quorum, the mar-
shal may make up to the full number twenty-four.
But this is not the fact. If sixteen jurymen attend, the
marshal can not add one more. Let us, then, apply a
suppositious case. The marshal, if notified that one of
the jury whom he has summoned can not attend, is au-
thorized, according to Mr. Hays doctrine, to summon a
substitute. It is no impediment to the exercise of this
authority, that there be the legal quorum of sixteen re-
maining upon the panel ; he may proceed to summon
substitutes till he completes the whole number twenty-
four. And yet, if the case were to happen in court, the
marshal would certainly have no authority to complete
the whole number. Why, then, suppose such a difference
of authority in and out of court ? Why not rather sup-
pose, that the marshal has no authority to do that out
of court, which he can not do before the court ? Let us
suppose another case. A grand juror has been sum-
moned for several weeks before the meeting of the court.
The bare authority of the marshal is sufficient, according
to this doctrine, to excuse him from serving, and to sub-
stitute another in his place, only one hour before the
meeting of the court. Mr. WickJtam declared he could
mention the case of a man who had been excused from
this very panel.



ARGUMENT. 7

Mr. Scott (the marshal.) Name him, sir ; I demand his
name.

Mr. Wickham declared, that he meant no imputation
upon Mr. Scott, but he would not submit to such inter-
ruptions. If no sufficient excuse is given by the absent
juror, he is subject to a fine. Is it then contended, that
the marshal is to judge in the place of the court? not
only to relieve the person of the juror, but his property
also from the fine? The words of this law are too plain
to be mistaken. It admits of no latitude of construc-
tion. But if the marshal has really transcended his au-
thority, yet I do not hesitate to declare my opinion, that
he intended to discharge his duty with fidelity. It was
only an error in judgment, to which all men, however
well versed in the law, are liable.

Mr. Hay. Will the court indulge me with a single
additional remark ? I stated before, that when the mar-
shal found that one of the jury, whom he had before
summoned, could not attend, he was authorized to sum-
mon a substitute. Mr. Wickham, however, contends,
that the marshal can not summon others, after sixteen
have appeared. But for what reason ? Because there is,
in reality, no occasion for it. The object of the law is
already attained. The grand jury is complete, and it is
unnecessary to take up further time, when the grand
jury is legally full. But before the court convenes, how
is it possible for the marshal to know how many of those
summoned will attend ? According to the doctrine of
the opposite counsel, there maybe no grand jury.

The chief justice inquired, whether the question had
ever come before the state courts?

Mr. Randolph. Not, sir, to my knowledge. In nearly
thirty years' practice (and a considerable part of that
time I was attorney-general for the commonwealth) no
occasion has occurred for such an objection. I have
never seen a case where it was so absolutely necessary to
assert every privilege belonging to the accused, as in this.
But as to the right itself, abstractedly considered, I have
never hesitated a moment about its existence. It is
written in broad, intelligible characters. Sir, if we ever
submit to these relaxations of the rights of the accused,
a time may possibly come, when we may lament the



8 TRIAL OF AARON BURR.

precedent we have established ; when men less virtuous
than the present respectable marshal, shall succeed to
his functions. But the question in the present case is,
not what has been the practice in the state courts, but
what is the right? If this right has never been before
asserted, it is because there never was an occasion which
so imperiously demanded it as the present ; because
there never was such a torrent of prejudice excited
against any man, before a court of justice, as against
Colonel Burr, and by means which we shall presently
unfold.

Chief Justice. As this question has never been de-
cided before the state courts, we must refer to the words
of the act of assembly. There can be no doubt that this
is the time when the accused has a right to take excep-
tions to the jury ; and the only doubt can be, is this a
proper exception ? The marshal is authorized by law to
summon twenty-four jurymen ; but he is not to summon
a twenty-fifth. Of course, the twenty-fifth is not legally
summoned, unless he has the power to discharge a person
already summoned. He has no such power, unless the
jury be composed of bystanders. The twenty-four first
summoned must compose the jury, sixteen of whom
constitute a quorum. It follows, therefore, that no one
can be on the grand jury, unless he be one of the twenty-
four first summoned, or one who has been selected from
the bystanders by the direction of the court. When the
panel has been once completed by the marshal, its
deficiencies can be supplied only from the bystanders.

The chief justice further observed, that he was not
well acquainted with the practice in the state courts ;
but he believed the practice of sheriffs to be, to excuse a
man summoned on the jury, if they are satisfied that his
excuse is reasonable. So it may have been with the
officer of this court, who acted, he had no doubt, with



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