Aaron Burr.

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

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is really a criminal. It is not, therefore, necessary for
us to determine this point at the present time. It is
not necessary to decide whether Doctor Bollman is or is
13



194 TRIAL OF AARON BURR.

not a pardoned man. We do sincerely hope, that ne
will appear in the character of an honorable man ; and
not refuse to answer the interrogatories of the grand
jury. But if he should pursue that course, it will be
then time enough for us to bring this discussion before
the court.

Mr. Hay. The proposition which I had stated, seems
to me to be so evident, as to require little argument. I
consider Doctor Bollman as a pardoned man ; and there-
fore, I desired that the court should certify that fact for
the instruction of the grand jury. Gentlemen, however,
seem themselves to concede the very point for which we
are contending. Why do they so much expatiate on the
consequences of a pardon, if they do not consider that
one has been already established? Why do they wish to
screen Doctor Bollman, under the plea, that he can not be
made to defame himself, unless they consider him not
sufficiently secured by the possession of a pardon ? As to
the effect of a pardon, it is a distinct question, on which
the court may hereafter instruct the grand jury. But at
present, I wish the court merely to certify that he is psr-
doned.

Mr. Martin replied, that if the gentleman had attended
to his argument, he would have seen that most of his
authorities had borne upon the existence of a pardon,
and not upon the effects of one.

Chief Justice. Have any of you authorities to show
when the pardon operates.

Mr. Martin. Certainly from the time of pleading.

Chief Justice. You mistake my question : suppose
the pardon to be lost, is it then valid ?

Mr. Martin. If it be proved, that he had pleaded it
to an indictment, I presume an exemplification of it
would answer every purpose.

As another reason, sir, why Doctor Bollman has refused
this pardon, perrrit me to say, that it would be considered
as an admission of guilt. Doctor Bollman does not ad-
mit that he has been guilty. He does not consider a
pardon as necessary for an innocent man. Doctor Boll-
man, sir, knows what he has to fear from the prosecu-
tion of an angry government: but he will brave it all.
The man who did so much to rescue the Marquis La



WITNESSES TO CHARGE OF TREASON. 195

Fayette from his imprisonment, and who has been known
at so many courts, bears too great a regard for his repu-
tation, to wish to have it sounded throughout Europe
that he was compelled to abandon his honor through
a fear of unjust persecution.

After some desultory conversation, Doctor Bollman
was sent up to the grand jury without any particular
notification. The questions whether he be pardoned,
and of course how far he may be called upon to disclose
all that he knows, were reserved for future discussionand
decision.

Mr. Hay requested leave to inform the grand jury
that fatigue alone had prevented General Wilkinson from
attending them on that day ; but that he should appear
before them on Monday.

Mr. Botts then observed, that there was one point in
the supplemental charge, which he wished to notice. In
one part of the charge, the clause of the constitution
relative to treason is quoted ; which clause recognizes
the necessity of two witnesses to prove an overt act.
In a subsequent part, there seems to be an implication
that one witness to an overt act is sufficient. How was
this seeming contrariety to be explained ?

Chief Justice. Though the constitution declares that
two witnesses are necessary to produce conviction, yet
it may not be so strictly and absolutely necessary to
authorize an indictment being found a true bill. My
present impression is, that though there must be be two
witnesses to the general charge of treason, yet that one
witness may be sufficient to prove one act, and another
to prove another. The Chief Justice quoted the statutes
of Edward VI. The law books made this discrimination
between a trial and an indictment.

Mr. Hay. There is one important question worthy of
our consideration. In your supplemental charge, sir,
you have referred to the statute of Edward VI. But no
such statute is now in force here. A general law of the
Virginia legislature, passed several years ago, swept off
all the British laws ; and then they set to re-enacting such
as were congenial with our form of government. But
this statute was certainly in force at the commencement
of our revolution ; and the question is whether, if it were



r 9 6 TRIAL OF AARON BURR.

in force then, it can be so considered now. Do gentlemen
contend, that we are bound by a statue, which the gov-
ernment has not adopted ?

At the close of the court, the Chief Justice observed,
that he had explained the sense in which the words which
had been remarked on by Mr. Mac Rae, had been em-
ployed ; that he had no desire that they should remain in
the written opinion ; that he did not perceivq that they
were calculated to excite any feeling, or liable to be so
misunderstood; but as it was not his intention to convey
the idea, that a conviction in any event, right or wrong,
was wished ; and as that idea had been inferred, and
might hereafter be attached to them, by those who might
see the opinion without the explanatory words, he had
expunged them.

MONDAY, JUNE isth, 1807.

General Wilkinson was sworn, and sent to the grand
jury, with a notification that it would facilitate their in-
quiries if they would examine him immediately.

Mr. Wickham stated, that as the indictments were now
pending before the grand jury, it was necessary to recall
to the memory of the court, a circumstance which had
been early suggested, that a number of improper papers
might be exhibited before the grand jury, which ought
to be prevented by the court ; that the attorney for the
United States had pledged himself to send up no papers
which had not previously passed the inspection of the
court : but it had since occurred to Colonel Burr's coun-
sel, that the witnesses themselves might carry up such
papers, which would defeat, and render of no avail the
promise of the attorney; that it would be changing the
duties of a witness, which were to give testimony, not to
carry papers. Finding that nothing could be done with-
out an application to the court, Mr. Wickham sub-
mitted to them, whether they ought not to instruct the
grand jury to receive no papers> but through the medium
of the court.

Mr. Hay said, that the witnesses would not deliver any
papers ; that he hoped the court would not act upon a
mere suspicion, that the witnesses would carry up im-



PAPERS TO GRAND JURY. 197

proper papers ; but that it was extremely probable, that
General Wilkinson, in delivering his evidence before the
grand jury, might find it necessary to refer to certain
letters which he had received, and to papers and docu-
ments relative to these mysterious transactions, in order
to refresh his memory. That he would not produce these
as distinct and substantive evidence ; but as so many
private memoranda, in order to strengthen his recollection
of the history of those transactions; and to enable him
to give a more connected and full narrative. Mr. Hay
hoped that after the splendid example of patience, which
the grand jury had displayed, they would not be inter-
rupted in the examination now commenced; but that he
had no objection to the court sending up by word, or by
writing, such instructions to them on this subject as might
be deemed proper.

Mr. Botts confessed, that after what had passed, this
opposition surprised him. On a former day, he under-
stood that it was agreed, that no papers should be sent
to the grand jury, but such as had been inspected by the
court.

Mr. Hay begged leave to explain. He had promised,
before the arrival of General Wilkinson, to send up no
papers without the inspection of the court. That he had
at that time, several authenticated papers, and several
affidavits ; and that he had an impression (though not a
very decided one) that they ought not to be submitted
to the grand jury. At that time gentlemen seemed to
apprehend, that certain papers and cyphered letters were
to be sent up to the grand jury, without any previous
motion. He had promised, and he would still pledge
himself, to avoid this course. But it might happen that
General Wilkinson had various papers to connect, explain,
and enlarge his narrative. If General Wilkinson had
brought these papers from New Orleans, and now pro-
duced them before the grand jury, in order to refresh his
memory, and enable him to explain and amplify his own
evidence, it would be correct; and no departure from his
word, to which he had substantially adhered. He hoped,
therefore, that gentlemen would not accuse him of a
breach of faith, and that Mr. Botts would withdraw his
expression of surprise.



198 TRIAL OF AARON BURR.

Mr. Botts. My surprise continues. I believe the at-
torney for the United States is incapable of anything like
a willful breach of promise ; but while I am willing to
admit his intelligence, fairness, and honor, I will say,
without intending, and I hope without seeming to cast a
reproach upon a character whose head and heart are in-
ferior to none, that a strong bias has stolen on that gen-
tleman's mind, which ought to be vigilantly watched.
He was still surprised at the gentleman's proceedings,
because the very principle which he supports as to the
papers, would go to prevent the introduction of witnesses
before the grand jury. Papers he admits, are not proper
to go before the jury ; and therefore, if witnesses are to
carry them, they themselves ought not to go. If Mr.
Hay were called before the jury, he would produce no
papers, but what had passed through the court. But
Mr. Hay is not the only prosecutor in this business.
There is another equally active and more deeply con-
cerned. Mr. Hay admits that this zealous prosecutor may
produce his papers before the jury. If he merely produce
papers to refresh his memory, any instruction which may
go from the court, will be perfectly innocent in its effects ;
but it is possible that such an instruction may be necessary
to repress the introduction of very improper papers,
which he might hope to convey to the multitude abroad,
through the channel of the grand jury. We are asked
why we suppose that improper papers will be carried to
the grand jury? There was a particular reason to re-
commend this vigilance. It was understood that a spe-
cies of plunder had been permitted ; that the post-offices
had been robbed ; and that letters thus improperly
obtained, ought not to be laid before the grand jury,
without being first examined by the court. It was, in
fact, impossible that any papers, obtained by such means,
could be legal evidence. Mr. Botts here read as an author-
ity, from the eighth volume of the American Museum,
Judge Grimpkie's charge to the grand jury, to show that
written evidence ought not to be heard by a grand jury ;
it being a well-established principle, that a grand jury
ought not to hear such evidence, till it is examined, and
declared to be authentic, by the court.

Chief Justice. Neither affidavits nor papers, contain-



PAPERS TO GRAND JURY. 199

ing distinct substantive testimony against the accused,
ought to be sent to the grand jury.

Mr. Martin. Mr. attorney has conceded this in sub-
stance ; and we admit that any witness may refer to
papers to refresh his memory.

Mr. Hay. I am willing to adhere in form and substance
to my promise. I know not what papers General Wilkinson
may produce. I was with him yesterday, and saw him in
possession of a great many. But which of them he may
choose to refer to, I can not possibly say. If gentlemen
wish to know the object of my visit to him, I will tell
them.

Mr. Martin. It is unnecessary.

Mr. Hay. I had said before in this court, that I would
not undertake to defend General Wilkinson ; but the re-
sult of my conversation with him yesterday is, that it is
my duty to defend him ; because I am well satisfied' that
he is an honest man, and a patriot. All my suspicions,
imbibed from the mysterious circumstances in the case,
have completely vanished ; and being convinced of his
unsullied integrity. I shall defend him with the most per-
fect sincerity.

Mr. Martin. The gentleman has taken a good way to
remove his unfavorable impressions, if that can be called
a good one, which consists in hearing but one side of a
cause. He has heard Wilkinson's own story. I wish he
would hear Colonel Burr's story ; perhaps his impressions
against him might also be removed.

Mr. Hay. I have heard his story from his counsel ;
but they have strengthened my conviction against him.

Mr. Wirt said, that he had perused the authority
quoted by Mr. Botts, and that he was satisfied that the
papers referred to by Judge Grimpkie, were only affida-
vits. [Mr. Wirt read quotations to prove his position.]
That the distinction was, that where a piece of written
testimony was distinct and substantive, it was not ad-
missible as evidence before a grand jury; but where it
was explanatory of viva voce evidence, it was proper and
admissible. That it was sometimes necessary to resort
to written papers as the very best testimony. For ex-
ample, said he, suppose General Wilkinson should state,
that on such a day he received a letter from Burr, by the
hands of Bollman or Swartwout ; would not Burr's letters,



200 TRIAL OF AARON BURR.

in such a case, with Wilkinson's oath, that they were the
handwriting of Burr, be evidence even before a petit
jury, and of course before a grand jury? Such letters
are the best evidence of their own contents. If he were
to make a verbal statement of their contents, would not
the jury have a right to say to him, " Produce the origi-
nal, we demand it as the best evidence?" Suppose
General Wilkinson were to produce the cyphered letter,
would it not be competent to the jury to say, " Produce
it ; we shall receive it, and explanations of its contents ? "
This shows, that the objection, as made generally to all
papers, is fallacious and can not be supported by law or
reason. There are many different links in the chain of
evidence. It is manifest, that written documents are
sometimes not only evidence, but the very best, which
can, in the nature of things, be adduced.

Mr. WickJiam. The counsel said, that he would send
up no papers. But it is contended that the witnesses
may carry up papers to the grand jury. It is a distinc-
tion without a difference. The object is to prevent the
admission of improper evidence ; and it is precisely the
same thing in substance to receive it from a witness who
carries as from the attorney who sends it. When a petit
jury is empaneled, the court inspect the papers before
the jury are permitted to see them. The gentlemen have
laid down a broad position, that any witness may have
recourse to any papers to' strengthen his recollection.
This is certainly not correct. I beg leave to remind the
court of a case (Judge Chase's trial), which happened be-
fore the highest tribunal in this country, the senate of
the United States, where it was decided, that a witness
(Mr. -Hay himself) was not permitted to read memoranda,
even to refresh his memory. Mr. Wirt admits that an
affidavit may not be read, but that a paper, not on oath,
may be read.

Mr. Wirt. The gentleman is uncandid. I wish he
would understand me, and answer me candidly. He
puts an absurdity into my mouth which I disclaim. I
wish the gentleman to state his argument against my
argument as it was, and not according to his own deduc-
tions.

. Mr. Wickham. I agree that the gentleman did not
state an absurdity in terms ; but an absurdity inevitably



PAPERS TO GRAND JURY. 201

follows from what he said. The court alone ought- to
determine what papers are evidence and proper to be at
all heard by a grand jury.

Mr. Hay. I beg leave to make one observation. I
care not for the decision in Chase's trial ; nor do I know
that it was as now stated ; but if it were, I assert, that
those who made it, knew that it was contrary to % law.
In the trials of Hardy, Tooke, and Thelwal, a con-
trary principle was determined. A witness, who was a
spy of the government, had no memory or recollection
of the circumstances he was to prove, but from his refer-
ence to written memoranda. Mr. Wickham knew this
decision not to be law, but he mentioned it merely be-
cause I was the witness in that case.

Mr. Bctts. Mr. Hay's observation is the longest I
ever heard. The senate did so decide, and perhaps unan-
imously ; and it was composed of the ablest lawyers
from all parts of the union.

Mr. Hay contested the fact of decision in that manner ;
but he was irritated, and did not recollect precisely how
it was ; but he was informed that it was not decided un-
animously, though it might have been so pronounced.

Messrs. Martin and Wickham stated, truit the decision
was by eighteen senators against sixteen (which was the
fact).

Mr. Botts.M.?. Hay and Mr. Wirt take different
grounds.

Mr. Martin contended, that the court was to decide
what evidence was to go to the grand jury. He cited
Danby's case, where a witness gave a deposition under
the statute of William and Mary ; he prevaricated before
the grand jury, and they sent for his deposition to con-
front him. The court decided that they should not have
it, because it was improper for them to see it.

Chief Justice. There is a difference between the grand
and petit jury. The former are to make inquiry ; they
may send for witnesses; directions ought therefore to be
given them in general terms. But lam not satisfied that
a court ought to inspect the papers which form a part of
a witness's testimony before he is sent to the grand jury.
This would render it necessary to examine the witnesses
in open court. The chief justice here delivered the opin-
ion of the court, reduced to writing, in order to be laid



202 TRIAL OF AARON BURR.

before the grand jury. Its purport was, to instruct the
grand jury not to inspect any papers but such as formed
a part of the narrative of the witness, and prove to be the
papers of the person against whom an indictment was
exhibited.

Mr. Hay objected to this form of instruction. Suppose
a pajjer from a person closely connected with the accused
were adduced ; as, for instance, Doctor Bollman. Such
a paper maybe important to prove to the jury the integ-
rity and proper conduct of General Wilkinson. It may
have had a material influence on his mind, even if not
genuine.

Chief Justice. Your argument is, that the papers are
to be admitted to justify the conduct of the witness ; but
they ought not to bear upon the accused.

Mr. Hay. The prejudices in the western and other
papers against General Wilkinson's character, represent-
ing him as connected with Aaron Burr, make it necessary
that his reputation should be vindicated. He comes be-
fore the jury as a suspected person. The language of
the cyphered letter seems to countenance the conjecture.
It may be necessary to exhibit these papers to support
the credit of the witness.

Chief Jiistice. The opinion may therefore be amended,
by adding that such papers are also admissible as tend
to justify the witness, but not to bear upon the prisoner.

Mr. Wickhain. General Wilkinson is not on his trial.
Their object is not to vindicate Wilkinson, but to accuse
Burr, who is on his trial. Wilkinson's oath is to be sup-
ported by proving papers by his oath ; so that he is to
support himself. This is not legal testimony, and ought
not to be admitted.' It is true, that these papers do not
criminate Colonel Burr directly, but they bear upon him
by vindicating Wilkinson ; and it is a sound rule of law,
that what can not be done directly shall not be permitted
to be done indirectly.

Mr. Wirt. The court does not contravene that doc-
trine. On Shaftsbury's trial, the grand jury wished to
examine witnesses as to the credibility of a witness.
Pemberton rejected such evidence, but that opinion has
been exploded. It is the privilege and duty of the
grand jury to judge of the credibility of witnesses. If



INSTRUCTIONS TO GRAND JURY. 203

they have doubts of the credibility of Wilkinson, they
ought to inquire into, and be satisfied upon the point.
They may call upon him for an explanation as to facts
and circumstances, which he can afford by the production
of his papers.

Mr. Hay proposed an amendment to the court's in-
structions : " that any paper might be exhibited which
came from the accused, or any other person proved to be
an accomplice of the accused, or that formed a part, or
was explanatory of the witness's narrative."

Mr. Martin. The prpposed alteration suits the gentle-
man's purpose. There is no paper under heaven, but
what might be introduced as part of his narrative ; even
papers procured by breaking open letters from the post-
office, or seized by violence or robbery, might be so used
under that general definition.

The Chief Justice wished to send some specific instruc-
tions to the grand jury, to prevent the delay which might
arise from their coming into court, when they had a par-
ticular paper before them, on which they would wish to
obtain the instruction of the court.

Mr. Hay, contended, that the alteration he had sug-
gested was proper ; and quoted authority to show, that
when a man was once proved to be an accomplice or con-
nected with another, what was in proof against the other,
was good proof against 'him [which see hereafter].

Chief Justice. Is there any authority to show, that
papers communicated by an accomplice can be used as
evidence ?

Mr. Hay. The doctrine is, that "where a man is
proved to be an accomplice, his papers may be used
against another." In Home Tooke's trial, Erskine con-
ceded, that where the prisoner's connection with a third
person was proved, the letters or papers of that third
person relating to the question before the court, were
testimony against him. I East's Crown Law, page 97.

Mr. Wirt added, that there was no difference between
the words or writings of an accomplice as evidence; in
support of which he referred to the trials of Hardy,
Tooke, and Thelwal [which see hereafter], and to 6th
Durnford & East's reports, p. 527 ; where it was solemnly
determined, on the trial of William Stone for high trea-



204 TRIAL OF AARON BURR

son. that " a letter sent by one of the conspirators in pur-
suance of the common design, with a view of reaching
the enemy, was evidence against all persons engaged in
the same conspiracy."

Mr. Martin. The cases mentioned by the gentleman
are cases of treason, for a conspiracy to kill the king; it
is only in such cases, where the crime consists in the
imagination of the mind, " to compass the death of the
king," that such testimony is admissible ; but where
" levying war" is the charge, the declarations or acts of
third persons, however connected, can not be admitted
as evidence.

Mr. Wickham. Mr. Wirt's authorities do not apply
to the case of levying war. The constitution of the
United States says, that no person shall be convicted
except by the evidence of two witnesses, or his own con-
fession in open court. Colonel Burr's confession out of
court could not be used against him ; but it seems by
the doctrine of gentlemen, that the confession of others
can be adduced against him.

Mr. Hay. There are several good lawyers on the
grand jury. Mr. Martin says it would take him a day to
state what he had to say on this subject. It would take
him his whole life to prove the distinction he contends
for. Modern systems of evidence lay down the doctrine
without the distinction. There is much absurdity in the
distinction. The same rule ought to prevail in both
cases. Levying war against the states, is a higher offense
than compassing the death of the king. In the latter
case, the declarations of third persons connected with the
person accused, are admissible evidence; & fortiori they
ought to be in the former case. Mr. Wickham says that
confession in open court is requisite to convict. He does
not understand the doctine correctly. It is this, sir:
that where a party is convicted on his confession only, it
must be in open court ; but where the confession itself is
proved as evidence of an overt act, it must be proved by
two witnesses. This discussion is an unnecessary waste
of time ; it may be thus prolonged at gentlemen's pleas-
ure ; but it is only proper to tell the jury to ask advice
when they want it.

Mr. Martin thanked the gentleman for enlightening



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 20 of 64)