Aaron Burr.

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

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INSTRUCTIONS TO GRAND JURY. 305

his mind; but insisted that such a construction as that
contended for by him, was novel and extraordinary.

Mr. Botts, after some facetious remarks on the doctrine
of pleas, rejoinders, and rebutters, &c., as exemplified in
the cause, proceeded to this effect : The declarations of
persons connected in a conspiracy, are not to be received
in evidence until the conspiracy itself is proved. Pre-
viously, the association and the extent of it must be
proved. The association itself is not to be proved by
such declarations. Such evidence is admissible under
very limited restrictions. It is unreasonable and absurd
for such evidence to prevail over evidence of a superior
nature; over evidence of overt acts. Neither conspiracy
nor intention is war. The best evidence which the na-
ture of the case is susceptible of, must be produced on
all occasions. You make it out by such an unreasonably
dangerous doctrine as this is, that where a guilty inten-
tion is once formed it can not be forsaken with safety ;
for if it be admissible evidence, a previous declaration
may be proved against a man after he has repented and
relinquished his criminal intentions.

Mr. Hay informed the court, that the grand jury had
sent for Doctor Bollman ; that they wanted him to
decypher, if he could, a cyphered letter annexed to
Mr. Willie's affidavit, and which he held in his hand.
That Mr. Willie, the reputed secretary of Mr. Burr,
would prove the identity of the paper, and Dr. Bollman,
it was expected, would interpret it.

Mr. Martin hoped the affidavit would be severed from
the letter to which it was annexed.

Mr. Hay consented : and Mr. Willie who was absent,
was sent for.

The Chief Justice declared, that he did not wish to
pronounce an opinion on the distinction as to the evi-
dence in the two kinds of treason, without seeing authori-
ties referred to. That he was inclined to think that such
a distinction as was stated might exist.

Here the chief justice delivered the instruction, as
amended, to the marshal, to be transmitted to the grand
jury. It was not read in court.

Mr. Hay wished the expression concerning " credi-
bility " to be struck out as implying a doubt.



206 TRIAL OF AARON B URR.

Chief Justice. That idea was not suggested by the
court ; such evidence is deemed inadmissible, except
for the purpose of supporting the credibility of wit-
nesses.

Mr. Hay wished the latter clause to be altered, as the
grand jury might think themselves bound to make ap-
plication to the court ; and that showed the impropriety
of giving such instructions at all.

Mr. Botts. It is indecorous to be consuming time
until the grand jury shall have returned ; their own ex-
cellent understanding will condemn this conduct.

Mr. Hay. General Wilkinson is not under examina-
tion.

Mr. Wickham. Gentlemen think General Wilkinson
the sole patron of the cause, but there are other wit-
nesses.

Mr. Hay. None who are expected to have any papers.
Mr. Hay again produced the cyphered letter, annexed
to Willie's affidavit (Willie appearing in court). He
then proceeded : This is the paper which I wish to trans-
mit to the grand jury. It is addressed, I understand, to
Doctor Bollman under a fictitious name, and is all in the
handwriting of Mr. Willie.

Mr. Botts objected to its being sent up to the grand
jury ; that he understood that no paper was to be laid
before them ; that was not material to the cause, whether
it could or could not be authenticated ; and that gentle-
men must therefore prove both its materiality and its
authenticity.

Mr. Hay. A hard proposition indeed, when it is
written partly in cypher and partly in German ! I deem
it material, because I understand it was either dictated
by the accused, or first written by him, and afterwards
writen by his secretary, and at his request ; it is addressed
to Henry Wilbourn alias Erick Bollman. I wish it to
be sent up while Doctor Bollman is before the grand
jury.

Mr. Botts. Our wishes are at issue.

Mr. Wirt. May it not be received under the instruc-
tions already sent up?

Mr. Burr. The paper is now in possession of the
court ; it is not to be sent up to the grand jury, but under



THE CYPHERED LETTER. 207

the judgment of the court ; and of course the court
must be satisfied with the materiality of the paper.

Mr. Hay. The accused is mistaken in point of fact.
The paper is in my possession. Though I considered
myself bound to show it to the court according to my
agreement, I have not yet delivered it, nor am I bound
to deliver it.

Mr. Wickham. Why was it offered to the court, if it
were not to be put into their possession? If it be merely
brought into court that it maybe sent to the grand jury,
and not considered as in possession, or under the control
of the court, any paper may be conveyed to them in the
same manner. Mr. Hay asserts, that it is addressed to
E. Bollman. But how has it been obtained ? Has it
not been taken from the post-office? Has it not the
post-office mark on it ? Has it not been obtained by
felony? He wished to see it.

Mr. Hay refused to show it, and said that he would
know what to do with papers hereafter. [He was
understood to deny that there was any post-office mark
on it ; this, however, may be a mistake.]

Mr. Wickham demanded as a matter of right, that the .
paper should be delivered to him.

Mr. Hay. I deny that the paper is in possession of
the court, or that it was offered by me. If "it were, I
acted improperly. There is no precedent to justify the
doctrine, that I was compelled to offer it. A paper
offered to the court is either delivered or read. I did
neither. I have a right to send any paper to the grand
jury, under the directions already received by them ;
unless it be explained by Willie and Bollman, it will be
no more than an oak leaf. I hope I shall be permitted
to pursue the usual and regular course.

Mr. Wickham. If the paper be not before the court,
I wish to know what is the question ? Does he offer it
to the court ? [Mr. Hay. No.] How then can any notice
be taken of it ? How can he send it up to the jury. By
the marshal? He is the officer of this court, and bound
to pursue its orders. By Mr. Willie? He is but a wit-
ness, and not bound to carry it. If any paper go from
the prosecutor to the grand jury, it must be with the
leave of the court. If a witness go up, it is because he is



zoS TRIAL OF AARON BURR.

presumed to be a relevant witness; but if it be a paper
how can its relevancy be established, until its contents
and materiality are known ? If an improper paper be
sent to the grand jury, the indictment may be quashed,
because founded on illegal evidence. Was not the leave
of the court asked ? If it were, that put it in the power
of the court. If it were not asked, the whole is improper
and illegal. As to what they say they can prove respect-
ing the paper, let them first prove it. When they do,
the paper may be proper.

Some ingenious sparrings between Messrs. Wickham
and Wirt amused the audience a moment; when,

Mr, Botts objected to the transmission of the paper.
It was immaterial, or it was not. If it were immaterial,
why embarrass the jury with it? If it contained perti-
nent matter, it was certainly wicked matter, in which
Mr. Willie may be himself concerned. If he be sent to
the grand jury with this paper, what would he say about
it ? Would the court wish him to say anything that
would criminate himself? We have a right, said Mr.
Botts, to see this paper. Perhaps we shall find, that it
has been filched from the post-office, contrary to the
eighth amendment of the constitution, which protects
every man's papers from unreasonable searches and
seizures. If it has been obtained by such illegal and
violent means, perhaps the court would arrest it ; even
the grand jury would not dirty their fingers with it.

Some desultory conversation ensued, when Mr. Willie
was called to the court.

Mr. Williams, his counsel, hoped that no question
would be put the answer to which might tend to crimin-
ate himself.

Mr. Mac Rea. Did you copy this paper?

Mr. Williams (after consulting with his client). He
says, that if any paper he has written have any effect on
any other person, it will as much affect himself.

Mr. Wirt. He has sworn, in his deposition, that he
did not understand the cypher of this letter. How then
can his merely copying it implicate him in a crime when
he does not know its contents ?

Mr. Mac Rea. We will change our question. Do you
understand the contents of that paper?



THE CYPHERED LETTER. 209

Mr. Williams. He objects to answering. He says,
that though that question may be an innocent one, yet
the counsel for the prosecution might go on gradually,
from one question to Another, until he at last obtained
matter enough to criminate him.

Mr. Mac Rea. My question is not, " Do you under-
stand this letter, and then what are its contents ? " If I
pursued this course, I might then propound a question
to which he might object ; but unless I take that course,
how can he be criminated ?

Mr. Botts. If a man know of treasonable matter, and
do not disclose it, he is guilty of misprision of treason.
Two circumstances, therefore, constitute this crime :
knowledge of the treason, and concealment of it. The
knowledge of the treason, again, comprehends two ideas ;
that he must have seen and understood the treasonable
matter. To one of these points, Mr. Willie is called
upon to depose. If this be established, who knows but
the other elements of the crime may be gradually un-
folded, so as to implicate him. The witness ought to
judge for himself.

Mr. Mac Rea. I did not first ask, if he copied, and
then understood it? but first, if he understood it? Had
he answered this question in the affirmative, I certainly
should not have pressed the other question upon him,
because, that might have amounted to self-crimination ;
but, if he did not understand it, it could not criminate
him.

Mr. Hay. I will simply ask him whether he knows
this letter to be written by Aaron Burr, or by some one
under his authority.

The Chief Justice said that that was a proper ques-
tion.

Mr. Williams. He refuses to answer ; it might tend
to criminate him.

The court were of opinion, that Mr. Willie should
answer upon oath, whether or not he thought that an-
swering the proposed question, might have a tendency
to criminate himself.

Here a long desultory argument ensued.

Chief Justice. Has the witness a right to refuse to
answer?

114-



210 TRIAL OF AARON BURR.

Mr. Williams. The knowledge of the treason, and
concealment of it amount to a misprision of treason.

Chief Justice. The better question is, Do you under-
stand it?

Mr. Williams. He ought not to have such a question
put to him, because he might be obliged to answer " Yes."
He ought not to be compelled to answer, if it might
possibly criminate him. The witness is to |udge for him-
self though the question may not seem to affect him.
He referred to the case of young Goosely before referred
to by Mr. Randolph.

Mr. Botts. I will give Mr. Hay the benefit of an au-
thority, i Mac Nally, 257-258, which shows, that the
possibility of crimination is sufficient to excuse the wit-
ness from answering.

Mr. Williams. What the witness says here, tending
to his own crimination, may be used as evidence against
him on a prosecution. If he answer at all, he is deprived
of the privilege given by the law, not to criminate one's
self.

Chief Justice. If he be to decide upon this, it must
be on oath. He asked Willie, whether his answering the
question, whether he understood that letter, would crim-
inate himself? He answered, it may in a certain
case.

Chief Justice. I wish to consider the question until
to-morrow.

Judge Griffin (to Mr. Williams). The case of Goosely
was not as you represented it. It was the court who
knew that the witness was one of those who robbed the
mail.

Mr. Hay. The doctrine is most pernicious and con-
trary to the public good.

Mr. Williams. The public good does not require the
conviction of Colonel Burr so much as to dispense with
the law.

It was then agreed that the point should be argued to-
morrow, and Colonel Burr's counsel promised to produce
their authorities to show, that Willie could not be com-
pelled to answer such questions, as might in his own
ooinion tend to criminate himself.



LETTER FROM THE PRESIDENT. 211

TUESDAY, June i6th, 1807.

As soon as the court met, Mr. Hay produced and read
the following letter from the President of the United
States, in answer to his letter on the subject of the sub-
pcena duccs fecum, observing at the same time, that he
read it to show the disposition of the government not to
withhold any necessary papers, and that if gentlemen
would specify what orders they wanted, they would be
furnished without the necessity of expresses:

WASHINGTON, June isth, 1807.

" SIR, Your letter of the pth is this moment received.
Reserving the necessary right of the President of the
United States, to decide independently of all other au-
thority what papers coming to him as president, the pub-
lic interest permits to be communicated, and to whom,
I assure you of my readiness, under that restriction, vol-
untarily to furnish on all occasions whatever the purposes
of justice may require. But the letter of General Wil-
kinson of October 2ist, requested for the defense of
Colonel Burr, with every other paper relating to the
charges against him, which were in my possession when
the attorney-general went on to Richmond in March, I
then delivered to him ; and I have always taken for
granted he left the whole with you. If he did, and
the bundle retains the Ofder in which I had arranged it,
you will readily find the letter desired, under the date
of its receipt, which was November 25th ; but lest the
attorney-general should not have left those papers with
you, I this day write to him to forward this one by post.
An uncertainty whether he be at Philadelphia, Wilming-
ton, or New-Castle, may produce delay in his receiving
my letter, of which it is proper you should be apprised.
But as I do not recollect the whole contents of the letter,
I must beg leave to devolve on you the exercise of that
discretion which it would be my right and duty to exer-
cise, by withholding the communication of any parts of
the letter which are not directly material for the purposes
of justice. With this application, which is specific, a
prompt compliance is practicable ; but when the request
goes to copies of the orders issued, in relation to Colonel'



212 TRIAL OF AARON BURR.

Burr, to the officers at Orleans and Natchez, and by the
secretaries of the war and navy departments, it seems to
cover a correspondence of many months, with such a
variety of officers civil and military, all over the United
States, as would amount to laying open the whole exec-
utive books. I have desired the secretary at war to
examine his official communications, and on a view of
these we may be able to judge what can and ought to be
done, towards a compliance with the request. If the
defendant allege, that there was any particular order
which, as a cause, produced any particular act on his part,
then he must know what this order was, can specify it,
and a prompt answer can be given. If the object had
been specified, we might then have had some guide for
our conjectures, as to what part of the executive records
might be useful to him. But with a perfect willingness
to do what is right, we are without the indications which
may enable us to do it. If the researches of the secre-
tary at war should produce anything proper for commu-
nication and pertinent to any point we can conceive in
the defense before the court, it shall be forwarded to you.
I salute you with esteem and respect.

"TH. JEFFERSON.
" George Hay, Esq."

Some conversation ensued, about the specification of
the papers wanted for the executive.

Mr. Hay stated, that in his communication to the
president, to which this letter was a reply, he had men-
tioned these papers in the terms by which he thought
the opposite counsel would probably have described
them.. The president, however, did not deem this de-
scription sufficient.

Mr. Burr's counsel then stated, that they had sent an
express to Washington for these papers, with a subpoena
to the president, and that it would appear on the return,
whether they could obtain them or not.

The Chief Justice recommended a certain order in the
debate, and that only two counsel should speak on each
side ; that it would be the best course on every point of
subordinate importance, for the counsel on one side to
open the motion or argument, the opposite counsel to



THE CYPHERED LETTER. 213

reply, and the party who opened, to close the debate,
unless some new matter rendered a departure from this
rule proper.

Both parties acquiesced in the propriety of this arrange-
ment, except that Mr. Martin said, that as there was no
other business before the court, there was no necessity
of adhering to the rule, limiting the number of counsel
to speak.

Mr. Hay hoped the rule would be observed ; it would
relieve himself and some other gentlemen. He then
begged leave to call the attention of the court to a sub-
ject mentioned yesterday ; that Docter Bollman had
gone up before the grand jury. What his answers were
he knew not ; but he thought he ought to be sent to the
grand jury with Willie, that he might interpret, and
Willie could authenticate the cyphered letter; hence
arose the necessity of deciding the proposition that he
was a pardoned man.

Mr. Botts hoped, that they would not be interrupted
in the discussion of the question about Willie, which they
were about to begin.

Mr. Hay was willing to discuss either point first.

Here a desultory conversation ensued, in which Mr.
Hay insisted that Doctor Bollman was a pardoned man,
and ought to communicate all he knew to the grand
jury; which was denied by the other side ; when Doctor
Bollman, addressing himself to the court, said, I have
answered every.question that was put to me by the grand
jury.

Chief Justice. Is there any obligation to ask Doctor
Bollman if he can decypher the letter ?

Mr. Martin. It will be time enough to discuss that
question, after the letter shall have been before the grand
jury.

Mr. Mac Rae. I wish the question now put. I asked
Willie whether he understood that part of the letter which
is in cypher; he could, not be criminal, if he did not un-
derstand it. I wish the part which is written in German
now to be explained, to show that there is nothing crim-
inal in it. I wish Bollman to translate that part.

Chief Justice. I had rather proceed with the other
^point now ; how far a witness may refuse to answer



2i4 TRIAL OF AARON BURR.

a question, which he thinks would criminate him-
self,

Mr. Botts. I am glad to be relieved from the neces-
sity of showing the versatility of gentlemen, who fly
from one point to another. I am sorry they should at-
tempt to drive us from the discussion. The oblique
insinuation of Mr. Hay against Willie, seeming to pre-
suppose his guilt from his exercising the privilege of
not answering the questions propounded to him, must
be answered, though it is painful for me to notice such
illiberal attacks. He says, that Willie acts as if he were
engaged in the conspiracy. Can not Willie have another
excuse in seeking exemption from the examination, than
conscious guilt ? The attorney for the United States sees
every object, connected with Colonel Burr, though a jaun-
diced medium. With him " trifles light as air, are confirma-
tion strong as proofs of holy writ." How far he might be
disposed to involve this young man, upon a confession
of having copied a letter in cypher, though of v harmless
import, I am not prepared to say. But let Willie only
commit himself, so far as to make such confession, and
then be called by his business to that poor unfortunate,
enslaved country, Louisiana, and it may be the pretext
for oppressing him most cruelly. He may be seized,
thrown into a dungeon, or into the hold of a ship in the
most rigorous season, and be heard of no more, unless he
should have the better fortune of being transported to
Washington for trial. An unfortunate ignorant man
should be guarded from the penalty of suspicion. The
danger to be apprehended from this source is not imagi-
nary. We have not arrived at that part of our inquiry,
which is awfully terrible, and apt to rouse the indignation
of our country ; we shall very soon give you an awful
impression of the miseries of that ill-fated territory, un-
der the total surrender of the civil authority to military
guidance. I am driven prematurely to glance at one
outrage which may serve as a sample of the wretched
state in which that section of our dependencies is. A
citizen of the United States, now within the hearing of
my voice, in a time of profound peace, was seized in
New-Orleans, and, without being charged with any
offense, but merely on suspicion that he could give evi-



THE CYPHERED LETTER 215

dence against Colonel Burr in this court, to which he
was willing to come, was committed to prison without
bail or mainprize ; thrown into a stinking room with the
commonfelonsand negroes confined there, and only taken
out at last to be transported on board of a vessel to
Richmond in custody. He was hurried like a malefactor
on board, without being permitted to go to his lodgings
to get a shirt to put on. He was forced to yield, in the
humility of abject submission, to the arbitrary will of his
oppressors. Are we content to bear such enormities?
A man, only suspected of being a witness, is subjected to
military slavery. Shall we furnish a pretext against this
stranger, now called on to implicate himself, in what are
called the treason and misdemeanors of Colonel Burr ?
It has been said, that my client and his counsel have
taken much interest in this privilege. I feel interested
to protect the innocence of that young man from the
vengeance of illegal power, My client feels the same
anxiety. He is solicitous that he alone should feel the
pressure of unjust suspicion and persecution.

But how did this letter come here ? Foulness and
violence are betrayed in the mode of its acquisition. In
the hardest and most arbitary times in England, papers
which were seized by force, were brought forward as evi-
dence against the party from whom they were taken ; but
succeeding times have abhorred the doctrine ; and papers
found in possession of a party have been deemed the
weakest of all evidence. The foulness of that very mark
of 25 cents deserves execration.

Mr. Hay said that there was no post mark.

Mr. Botts. The' "25 " on the back, is the only post-
mark of many of the country post-offices. Mr. Hay did
not withhold it on that account. How came that mark
there ? Will the gentleman say how the paper was
acquired ? If the post-office was robbed, the possession
of the paper was gained feloniously. The constitution
has provided against the seizure of papers ; and the act
of congress has fixed the offense of stealing from the
post-offices. The means of obtaining the paper are
unconstitutional. The end can not be sanctioned, 'with-
out maintaining the means. It is impossible that this
most detestable vice, of the most infamous of European



2i6 TRIAL OF AARON BURR.

courts, can have been patronized by the government.
By a familiarity of our rulers with such hateful practices
the people would be demoralized. I claim from the
counsel for the United States, as patriots, their aid to
sanction my propositions, and join me in arraigning an
act, which will disgrace all who had any agency in it. It
must be a dreadful state of society, in which such an of-
fense should be made the means of assisting to prove
another. The principal of the government, if here, would
join in the denunciation. If it behoove the government
to suppress a paper thus unconstitutionally, clandestinely,
and illegally obtained, if they can not use the end with-
out sanctifying the means, I wish, for the honor of the
government, that the paper may be suppressed. I hope
that in the dignity and generous spirit of Chatham, they
will renounce it as unworthy of their use. It will do
more mischief than the treason could, were it real.

I come now to the abstract question of law. The
question put to Willie is, do you understand that the
original of this letter was written by Colonel Burr?

Mr. Mac Rae. That is not the question last put. It
is, Do you understand that part of the letter which is ?n



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 21 of 64)