Aaron Burr.

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

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cypher ? ,

Mr. 2?<?/fo. -Very well. The gentlemen charge that
this letter contains treasonable matter.

Mr. Hay denied it.

Mr. Botts. Either the letter contains treasonable
matter or it does not. If the latter, it is irrelevant and im-
proper for discussion. If treasonable matter be contained
in it, the question goes to criminate the witness. If he
answer "Yes," he is infamous. The rule is, that you
shall not make the witness answer a question which may
tend to implicate him in moral or legal turpitude. The
witness himself is the judge, how far his answer may
affect him. If he were obliged to answer, that the court
may judge of its tendency, he would be surrendering his
protection in the means of securing it. If the answer
should tend to make a single link in the chain of testi-
mony necessary to involve him in suspicion, he has a
right to decline it. The link can not be perceived by the
judges to belong to the chain, without an exposure of
every other part of it. Suppose another question were



THE CYPHERED LETTER. 217

put to him, How do you understand it? He must
answer it, as he is to tell the whole truth. Half of the
truth is not to be told. Gilbert's Law of Evidence, p.
134. 9 State Trials, 434. Another authority from an
able arid impartial court, which has been already referred
to, shows that although a question may be apparently
innocent, yet a witness is not bound to answer it, if he
think that it tends to criminate him. The question was,
" What profession are you of? " The witness was a
Roman Catholic priest, and the answer would have sub-
jected him to penalties. The court did not know what
the question would be, or how it would affect him, but
the witness did know. His right to decline to answer
was sustained. What question could on its face, be more
harmless than that resisted by that witness ? Unless the
witness be made the sole judge of answering, the benefit
of the rule is lost to him.

If, as I have already observed, the contents of the let-
ter be not of a treasonable nature, it is irrelevant ; we
know not the contents of it. Suppose the letter were
written by an amorous young fellow to his sweetheart,
would it be a proper subject of discussion in this case ?

I shall conclude with an admonition, or an humble
request, that gentlemen will give us a better opportunity
to prepare ourselves for the defense of our rights, by pos-
sessing the court with any papers they intend to exhibit
and letting us see them. It is a matter of right, that
when a paper is offered for any purpose, it should be
deposited with the clerk. Heretofore we have been
prevented from getting a sight of any paper till the mo-
ment of discussion, and then obtained it not without
difficulty.

Mr. Williams (counsel for Mr. Willie). I lay down two
propositions which I deem incontrovertible : first, that
a witness is not bound to criminate himself: secondly,
that a witness is from necessity the best judge of the
tendency of his answers.

To support the first proposition, I refer the court to I
Mac Nally, 256-7-8 ; Douglas, 590 ; Goosely's case in
this court, where I understand both points for which I
contend were established. If a witness admit that he
knows the contents, he is guilty of misprision of treason,



ai8 TRIAL OF AARON JBURR.

and if it only tend to produce the result, he is not bound
to answer.

Second, The witness is to be the judge how far he
ought to answer. The reason of the rule supports this
position. It is given for his benefit; it is a privilege for
his protection. The other rule of examining witnesses on
the " voir dire " before they are sworn in chief, is explan-
atory of this rule. A witness is asked whether he is
interested in the event of the cause, before he is admitted
to give evidence relative to the matter in issue. If the
opinion of the person offered as a witness be that he is
interested, he is rejected as an incompetent witness. If
his opinion be to exclude him in civil cases, h fortiori,
ought it to exempt him from giving testimony in a crim-
inal prosecution where his personal safety may be in
danger? The witness only knows what will be the an-
swer to the question. The court can not know. It may
discharge or criminate him. The witness must tell the
court what his answer will be, before they know it. A
bystander who hears him, may be called on to fix guilt
on him by his declaration. The interest of the United
States can not deprive him of his right. His saying that
he can not answer without criminating himself is on oath,
and if he were to perjure himself upon that point, he would
be equally ready to perjure himself on every other point.
Whether public justice require an answer, is not the
question ; but whether the witness ought to be com-
pelled to answer, when he believes it would criminate or
endanger him ? To compel him would be a violation
of a great and valuable principle of law and justice. No
case can be produced wherein it has been adjudged, that
a witness is first to say what he does kno.w, and that the
court is then to judge of its tendency, whether it will
endanger him or not. A man is not bound to produce
evidence against himself. I. Bl. Rep. 37.

Mr. Martin. The answer must be, " I do or I do not."
Mr. Willie has been considered a secretary of Colonel
Burr. If he confess that he knew the contents of this
letter, and they should prove to be treasonable, his
continuing in the service of Colonel Burr, will make him
a principal in the treason. He may have written to
others ; the post-offices have been put in requisition.



THE CYPHERED LETTER. 2 > 9

Mr. Hay. Insinuations ought not to be thrown out
against the government without evidence to support them.
I am willing to communicate all that I know about that
letter. It was transmitted by General Wilkinson, through
the hands of Mr. Minnikin, who accompanied Mr. Willie
to this place, and it was attached to an affidavit obtained
from Judge Toulmin. I know not whether Willie ever
saw it or not.

Mr. Martin. I do not charge General Wilkinson with
plundering this letter, but we will hereafter prove, that
they have laid violent hands upon the post-office of New
Orleans. They have a paper and know not how they
have come by it. The post-office mark on it, is a pre-
sumptive proof of the violation of the post-office. Never
will I mince the matter. They would not get Willie to
decypher this letter if he could ; but other witnesses may
be used to decypher it, and it may then be evidence
against him, if he acknowledge now that he understands
its contents. Do gentlemen produce this letter to crim-
inate Doctor Bollman ? Let him decypher this letter.
If other letters are hereafter found in the same cypher,
his acknowledgment, that he can decypher the one, will
make him equally responsible for the rest. By this con-
trivance, he and Doctor Bollman may be made the in-
struments of their own crimination : the one being used
against the other. If a witness refuse to be sworn, he is
liable to be committed for a contempt of the court, Sal-
ke!d, 270 ; but there is no instance to be found where the
court has committed a witness for a contempt, for refusing
to answer a question, which he supposed would crimi-
nate himself. Mac Nally, 637 ; 2 State Trials, 124.

Mr. Botts. It is important to know how the letter
was obtained. I wish Minnikin to be examined.

Chief Justice. That is foreign to the present discus-
sion.

Mr. Mac Rae. The question proposed to the witness
is," Do you understand the contents of this letter ? " But,
before I proceed to demand the answer, I hope we may
congratulate ourselves on the situation in which we are
placed. The proceedings clearly evince, that it is not
our wish to withhold from the accused any, the slightest
means of defending himself, and yet the present is a



220 TRIAL OF AARON BURR.

spectacle very rarely exhibited in a court of justic /he
counsel of the accused aiding the counsel of the witness
to prevent him from being examined ! I am glad, sir,
that counsel is employed for the witnesses, if thereby the
accused can be benefited. I am pleased that they have
united in his defense. But I have endeavored, in vain, to
discover whether anything which they have advanced,
bears upon the point before the court. These gentlemen
have widely wandered from it, and I feel a deep regret
that they will not confine themselves to the point of law.
Henceforth, I hope that they will do so, and abandon this
species of warfare, and address the judgment of the court,
instead of the prejudices of the multitude around.

Great part of Mr. Bott's remarks are foreign to the
point. Instead of reasoning on the subject and referring
to authors in support of his assertions, he has made some
strange conjectures, as to what may happen hereafter to
Willie, even if the letter were innocent. That his
acknowledging that he had copied it, though its con-
tents be innocent, may expose him, at some future day,
to persecution in some distant territory ; or perhaps
doom him to be thrown into confinement into the hold
of a vessel. Is not this mere declamation ? can it be
called argument ? Does it bear at all upon the question ?
His remarks were certainly improper ; and perhaps it
may be improper to answer them. His observations
about a distant territory are irrelevant, as are also all he
has said about the manner of obtaining the letter.
What connection has this subject with Louisiana or the
manner of obtaining this letter ?

As to the robbing of the mail, it is all conjecture.
Why has he not specified the name of the post-office,
and the name of the officer ? A custom prevails in those
post-offices to affix upon a letter the name of the office
printed or written. This impression would have been
sufficient to have led to the discovery ; but there is none
such on the back of that letter. The non-observance of
the custom in this case repels their insinuations. As to
the figures " 25," they occur very frequently on the face
of the letter. On the back of it, they may be a cyphered
direction or caution to the person for whom it was in-
tended ; and this conjecture is as good as theirs.



THE CYPHERED LETTER. 221

Mr. Botts says, that this letter must be fraught with
treason, or it is not ; and that if it be not, it is perfectly
irrelevant to the present case. But ought not the fact
to be ascertained ? Is it not material to the present
inquiry that it should ? But, says' Mr. Botts, " if the
letter be material, and Willie confess that he copied it,
he will fix a crime on himself." That is not granted, sir.
Willie must also understand it. Even if it be treason-
ble, it was no offense to copy it, unless he understod its
contents. He can neither be accused nor punished for it.
All that could be said against him would be, that he had
ignorantly done an act, injurious to the public, with an
intention to benefit an individual.

The authority in Gilbert, 134, cited by Mr. Botts,
would apply if the question were afaout the credibility
of a witness. But that is not the case, and the authority
s inapplicable.

They have also quoted a case from 9 State Trials, where
a popish priest was permitted to elude a question with-
out answering it. According to the English laws, the
witness, if he confessed that he was a Roman Catholic,
was liable to certain disabilities. There it was known to
the court, as well as to the witness, that there was such
a law, and that by such a confession he would subject
himself to its operation. The court, therefore, did not
press him for an answer. But here it is contended that
the witness is alone the judge of the law and the fact
whether he ought to answer or not : for both both the
law and the fact are included in the privilege, which they
claim for the witness. In the cases cited by them, the
court did understand the subject, and saw the danger of
the witness; but here the subject is not understood by
the court ; and the right of judging, whether the witness
be in danger or not, is denied them. Mr. Martin cited
authority in support of this principle ; that courts had
punished a witness for a contempt in not taking the oath,
but never where he refused to answer in cases in which
he might criminate himself. A court has always a right
to understand the ground on which a witness refuses to
answer, and every man is liable to give testimony, unless
he come within certain exceptions ; and in those cases,
he must show some law or authority to justify his refusal



222 TRIAL OF AARON BURR.

to answer. Does the court possess the power of com-
pelling a man to make oath that he will give evidence,
and yet not possess that of making him comply with it?
Surely this would be preposterous.

In the case of the'votr dire, it is not sufficient to ask a
witness, if he be not interested. If he say that he is not
interested in the event of the cause, inquiries may be
made into the ground of his opinion ; and if it can be
proved by other witnesses that he is interested, he is
excluded. It, is never referred to the witness only.
Every day's practice proves this to be the law.

The court has a right to understand the grounds oi
the privilege claimed by the witness. Suppose an at-
torney were called on to give testimony, and he should
say that his knowledge of facts had been derived from
confidential communications from his client : he would
not be the only judge in that case. The court would
inquire whether they were made to him in his profess-
ional or private character? The supreme court have so
decided. Cranche's Reports, 137, and i Mac Nally, 255,
substantially support this doctrine. The priest, in the
case referred to, was compelled to state the ground of
his refusing to answer.

The witness objects, that by answering he may crimi-
nate himself; but the court is to judge of the tendency
of the question. It must appear that he may criminate
himself. The question is, Do you understand that part of
the letter that is in cypher ? Whether he answer " yes," or
" no," he can not criminate himself. If he say "Yes," it
can not criminate him unless it be coupled with other
questions, and his answers to them ; and unless also he
wrote it. He may know the key to the cypher very
innocently. It may have been imparted to him for the
purpose of carrying on an innocent correspondence.
He may know the cypher without having any connec-
tion with its contents ; or he may have acquired a knowl-
edge of the cypher long after the letter was written. I
wish gentlemen to show how he can criminate himself,
by answering this question. They have not shown that
it will, or that it may criminate him ; and if the answer
will not criminate him, the United States are entitled to
his evidence. If he answer " No ;" if he be unacquainted



THE CYPHERED LETTER. 223

with the cypher he is innocent, and can not be crimi-
nated.

As to the law, there is no difference in opinion. We
all agree in opinion, that a witness can not be made to
criminate himself. The only dispute is about the effect
of the answer. I hope, therefore, that the court will
compel him to answer the question, unless it be shown
that he will or may criminate himself. I am sorry that
so much time has been consumed upon so plain a ques-
tion.

Mr. Hay. I did not wish to say anything on this
frivolous question, when a subject so important ought to
occupy our time. The effect of the paper is dreaded, for
.gentlemen discover unexampled solicitude to keep it out
of view. I know not its contents. They have repeat-
edly asserted that Mr. Burr was persecuted and innocent.
If this be true, why do they shrink from the evidence. In-
tegrity walks forth with a bold, and erect front before the
world. A man who knows his own innocence, despises
the powerless efforts of his enemies. They have con-
sumed a great deal of time unnecessarily; and yet charge
us with wasting it. I have taken up about the fortieth
part of the time occupied by the gentleman who spoke first.

I come now to the question. There are, in fact, two
questions which we wish to put to the witness. 1st,
Do you understand the cypher of that paper? 2d, Did
the paper come from Mr. Burr? was it written by him,
or by his directions ? The last question ought to have
been first stated. The witness does not say why the
answer to the question will have a tendency to criminate
him. The court can not judge, whether his motive may
not be an unwillingness to give testimony against a per-
son to whom he is attached. He ought to answer ; the
court can not decide without information from him,
showing in what manner it may tend to his crimination.
The meaning of the argument offered in defense of his
silence, is, that he is connected with Mr. Burr, and as
deep in the treason as he is. Will his answering the
question, " Whether he understand that cypher? " sub-
ject him to a prosecution? It certainly will not. His
knowledge of the cypher is not inconsistent with perfect
innocence. They say that the question ought to be,



224 TRIAL OF AARON BURR.

Has it a tendency to criminate him? The wit of man can
not tell whether any tendency to criminate him can result
from answering this question. The great rule of law, of
which the cases cited are illustrations, is this: that a wit-
ness is not to give evidence to accuse himself of a crime
(l Mac Nally, 256; Hawk, 609). I venture to affirm that
the gentlemen can not produce a case, that goes as far
as to say that a witness is not to answer what may tend
to criminate himself. But this answer will not even tend
to criminate him, nor will it tend to calumniate him.
The doctrine of Mr. Williams, about a pardoned man,
does not apply. I contend that a man is bound to an-
swer every question relating to the point in issue, unless
it subject him to a prosecution. But as to collateral
points, he is not bound merely to degrade or calumniate
himself. Every case mentioned has been decided on
these principles. I Mac Nally, 258: The authorities
there show, that a witness must make answer, unless it
directly criminate him ; or, what is the same thing, sub-
ject him to punishment. The objection now made by
the gentlemen was there expressly overruled. In the
case of the King v. Edwards, the question put was ob-
jected to, as tending to criminate himself. But the ob-
jection was overruled by the court ; saying, "there was
no impropriety in the question ; as the answer would not
subject him to any punishment." This, therefore, is a
decisive authority in our favor, being precisely the same
point. The doctrine cited from the State Trials, was
overruled by the cases in I Mac Nally, 259. I will not
appeal to the candor, but to the ingenuity of gentlemen,
to show how the answer to this question can criminate
the witness. The question is, " Do you know that cy-
pher?" relating to the present time. If the letter con-
tained guilt, and he knew it from the beginning, it might

o * 00*0

implicate him ; but we do not ask how long he has known
it.

The other question which we propose, is not whether
he copied or wrote the letter, but whether it were written
by Burr or by his directions. This he can say, without
saying who wrote it, if Mr. Burr did not.

But it is said, that " the court is not to judge " whether
he ought to answer, or whether it tend to criminate him



THE CYPHERED LETTER. 225

or not. This is one of the wonderful positions in the
wonderful cases resorted to by gentlemen. Yesterday
they said that it was a clear case, and that they only
wanted time to look for authorities. And what have
they found ? Nothing to support their position, though
I have produced an authority, directly in point, against
it. I ask if this doctrine be not a prostration of the rules
uniformly prevailing in all courts of justice? The court
ought to judge every point of law arising collaterally or
incidentally in a cause. The witness, from caprice or
corrupt motives, may refuse to answer the question. Is
it not strange that the court should politely say to a
witness, " You have been sworn to tell the whole truth,
but you may be silent if you think proper," without
assigning any reason for it ? I expected something like
authorities to prove that the witness had a discretion to
answer or not. Douglas, 593, stating that a man was not
bound to answer whether he were a Roman Catholic or
not, might as well have been introduced to prove any-
thing else. The answer there, if in the affirmative, would
subject immediately to disabilities; but here it can not.

As to Goosely's case, I know nothing of it. Judge
Griffin and Mr. Williams differ in their statements con-
cerning it; but if that case be contrary to the uniform
current of authorities, it is not binding. In Cooper's
case the decision is contrary to law, and has been disre-
garded since.

The Chief Justice. The decision in Cooper's case was
only that the accused had not a right to obtain papers
from the public offices for certain purposes.

Mr. Hay. That decision, that papers shall not be
obtained from the public offices, does not apply to the
present case.

[Here Goosely's case was produced, and part of it read
from the manuscript report ot Mr. Daniel Call (a gentle-
man well known as an able lawyer and correct reporter),
and which case, in substance, is as follows : Goosely was
indicted for felony, under the i6th and i/th sections of
the act of Congress establishing the post-offices and post-
roads within the United States, for robbing the mail of
some bank notes. On his trial, " the attorney for the
United States called Reynolds, an accomplice



226 TRIAL OF AARON BURR.

with the person, against whom an indictment for the
offence had been preferred, but which had been found
' not a true bill' by the jury. Randolph and Wickham,
counsel for the prisoner, objected to his testimony on
the principle that the witness was not bound to give any
evidence which might implicate himself. The attorney
admitted the general principle, but denied its application,
and insisted that he might give evidence. The court de-
termined 'that he was a competent witness; ' but Judge
Iredell observed (and Judge Griffin concurred), that 'he
could not be compelled to answer a question leading to
an implication of himself ; and that it was very probable
that the jury would pay but little attention to a fact
which they were satisfied was but partially related.' He
was asked whether he knew of any bank notes being
taken out of the mail by the prisoner. Pie answered,
none, but what he was jointly concerned in. The court
said that he was not bound to tell anything that might
' tend to criminate himself.' The jury returned a verdict
for the prisoner of not guilty, and he was discharged."]

Gentlemen prove a thing which is not denied, and say
that they have gained a victory. 4 State Trials, 414,
seems to countenance the doctrine on the other side. In
i Mac Nally, 258, the court perhaps knew the situation
of the man, and that it would criminate him ; but it is
here decided that where the court knows not the situa-
tion of the witness, or whether his answer would subject
him to punishment, they will leave it to the witness.

Mr. Williams says that the answer itself must be given
to enable the court to judge whether it will criminate
him. But certainly the court may inquire into the cir-
cumstances, to discover why he will be endangered. A
man who says that he is interested, even if he be not, is
disqualified ; because he is under a bias if he think so,
whether the fact be that he is or is not interested. In
that case, it is an objection to the testimony of a witness
who is offered. This, on the contrary, is a question of
exemption of privilege, claimed by the witness to excuse
him from giving testimony ; a duty incumbent on all,
except interested persons. In the case of Marbury v.
Madison, it was decided that "a witness may state his
objections," and the witness did state his objections,



THE CYPHERED^ LETTER. 227

and they were sustained ; but here the witness refuses to
state his objections. He is silent, and refuses to explain.

Mr. Botts says that the letter is irrelevant. To this I
answer, that this can only be ascertained by discovering
its meaning;. The gentleman declaim about plundering
the post-offices. We deny it ; let them prove it. I could
talk of a detestable plot to plunder a city and rob a bank,
as subservient to the execution of projects of unprinci-
pled ambition; but I will not do it till a future day.
They scatter ambiguous words with a view to excite
public suspicion and discontent. They insinuate, that
this depredation has not only been committed, but



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