Aaron Burr.

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

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that it was countenanced by General Wilkinson and
the President of the United States. But it ought to be
proved before they allege it in a court of justice. J3ut
suppose the letter had been in the post office, and it
had been voluntarily delivered by the post-master, on
discovering that it contained a treasonable plot, to the
commander-in-chief, in order to prevent the treason ;
would this have been criminal or improper? It has
always been the practice to intercept letters to prevent
treason. It is founded on necessity, and dictated by
the laws of self-preservation. As to Mr. Martin's
position, that a witness may be committed for refusing
to be sworn, but not tor refusing to answer

Chief Justice. Mr. Martin's position was, that a
witness might be committed for refusing to be sworn;
but not for refusing to answer, when he thinks the
answer would criminate him.

Mr. Hay. If that be the law, it does not justify the
refusal of the witness in this case to answer. The
cases are not alike. No authority would be found,
after their most industrious researches; because no
case could be found similar to this case. I trust, there-
fore, that the witness will not be permitted to judge for
himself; but that he must answer our question, as it
can not be shown that it will endanger him.

Mr. Wirt. Very little is left for me to say, after the
able arguments of my respectable associates ; but, if I
can not add to their arguments, I will try not to ob-
scure the subject. We ought, indeed, to render thanks
to the gentlemen for keeping us from gaping, by the



223 TRIAL OF AARON BURR.

multiplicity of their motions and interludes. They
have made so many points as to form a chevaux defrize
in the stream of the prosecution, and to place an insur-
mountable bar between the prisoner and justice. This
is the true mode to get the prisoner off at all events ;
but not the way to get him off with honor. If they
wish to remote the blot in his escutcheon, they must
submit to a candid examination of all the testimony ;
they must cease their constant efforts to stifle the evi-
dence that operates against them.

The gentlemen have assumed what is not proved,
that Willie is an accomplice. But all their arguments
and inferences founded on this assumption must be un-
availing. We do not, and will not admit, that he is an
accomplice till it be proved : but, if an accomplice may
be a witness, d fortiori a person who is not an accom-
plice may certainly be a witness ; and that an accom-
plice may be a witness, can be clearly shown by many
respectable authorities. I refer the court to i MacNally,
192, 193, 194; 2 Hawk, 608; Gilb. 122. Why should
the law make an accomplice a witness, unless the court
had a power to interrrogate him. This man cannot
shelter himself from giving testimony, but by showing
some legal privilege or exemption, i MacNally, 247,
253, 254, 255. All these authorities are strong and ap-
plicable; but the last is directly in point. It is there
stated as clear law, that the "claim of exemption from
giving evidence is scrutinized with a jealous eye; and the
person relying upon it, must establish his right, by show-
ing a positive law or express authority." There it was
determined, that it was no cause of exemption that the
knowledge "the witness had of the matter, arose from
a confidential communication made to him in the exercise
of his clerical functions : and which the principles of his
religion forbade him to disclose; " and that every man is
bound to discover what he knows of the matter in " issue
unless he be specially exempted and protected by law. 1 '
They say that the witness is exempted by a rule of law.
I will examine what that rule is. It is laid down in Hawk-
ins, 609, Book 2, chap. 46, 20, that ' it is a general rule
that a witness shall not be asked any question, the an-
swering of which might oblige him to accuse himself of



THE CYPHERED LETTER. 229

a crime." This, sir, is a narrow rule, which they have
blown up into an immense magnitude. If the answer
of the witness include guilt, he is not bound to speak.
Unless it oblige him to accuse himself of a crime, ha
must make answer to any question propounded to him ;
but what are the limits to the rule they contend tor.
What are the limits of u a tendency to criminate?"
Any question may indirectly and remotely have a tend-
ency to criminate or to produce any other effect. The
rule they insist on, is almighty and boundless: any
witness may thereby screen himself from giving evi-
dence against a person to whom he is attached. Like the
Cretan labyrinth, it can never be traced nor pursued,
and if the witness once get into it, you never can ex-
tricate him from it. Does the witness know that the
answer he is to make to this question has a tendency to
subject him to legal persecution or punishment? I con-
tend that the precise question put, must contain the
criminating matter; and that therefore a question, to
which an answer must criminate, must be put before the
court can arrest inquiry. If we put questions to which
answers may be made without such an effect, the witness
must answer them. This question requires no such an-
swer. If we afterwards put a question to which the
answer must subject to a prosecution, it will be then time
enough to arrest us. If the letter be treasonable, and he
were to answer "Yes" to the question,whether he knows
the cypher; and if he knew it to be treasonable from the
first, he might be endangered ; but many links are want-
ing to make a chain to bind Willie. Accomplices may be
witnesses,but they say they must not be compelled to give
evidence that may tend to criminate them. Tendency
unlimited, brings the rule to nothing. But I will meet
tnem plainly. If we ask the witness if he be guilty of
treason, and he answer u Yes," his confession cannot be
used against him. The " confession in open court," men-
tioned in the Constitution of the United States, applies
to confessions on arraignment, and to no other. It will
puzzle the learning of Mr. Martin to show a case of a wit- >.
ness being exempted from answering questions apply-
ing to the point in issue. The exemption in the cases
they rely on, extends only to collateral points. Cases are



230 TRIAL OF AARON BURR.

frequent in the books, where witnesses are examined to
points to defame or convict themselves, where they are
questioned as to the issue. The cases in Mac Nally, are
always of questions put not touching the issue. In the
trial of Reading, 2 State Trials, p. 802, 806, 822, the
question was to a collateral point. It was so in the Earl
of Shaftesbury's case, in 3 State Trials, 418 ; and so it is
in all the cases. They are not permitted to wander out
of the track to defame witnesses. A confession made by a
witness on oath does not bind him because it is not vol-
untary. 2 State Trials 123'; Christopher Love's case.
Jackson's examination in that case, exactly resembles
this of Willie. It proves, too, that he was committed
not merely for refusing to swear, but also for refusing to
tell the wnole truth. If Mr. Martin say it was merely
for refusing to take the form of the oath, what benefit
would his taking the oath produce, if he were not to
answer the questions put to him ? That was only the
case of an accomplice about to be interrogated as to the
point in issue, and a difficulty was raised. This is a very
simple point; and the only way to authenticate this let-
ter is by the evidence of this witness. The prisoner is a
great lawyer. Is it supposed he did not guard his foot-
steps? Would he call two witnesses to the letter? We
want it not to go to the grand jury, until we prove it
his offspring, by this witness, who would not tell one
truth against him, if he could help it. They put their
hands on his mouth to prevent him from telling anything
he knows; and he is so eager to secure the safety of Mr.
Burr, that he employs counsel himself, to prevent him
from being obliged to reveal what he knows against him.
1 trust, therefore, that this witness will be compelled to
answer our questions.

Mr. Martin proposed to go on with the argument to-
morrow.

Mr. Ray wished it to go on this evening ; that the
public convenience required that the evidence should be
introduced at this time to the grand jury.

Mr. Martin. I will endeavor to answer first, the gen-
tleman who spoke last. He says that we have made
more points than ever were made before; to which I
answer, that no prosecution was ever conducted like this



THE CYPHERED LETTER. 231

He says that we ought to court the fullest investigation.
What ! without the means of repelling their unjust at-
tacks, and the misrepresentations of their witnesses.
The privilege is not Mr. Burr's, but that of the witness.
As to accomplices being witnesses, they may be, and
sometimes are so voluntarily, but never otherwise. As
to the witness employ ing counsel, he is right to do it to
protect himself. His own character and life may be
endangered, and the counsel for the defendant are not
wrong in assisting to protect the witness. A great law-
yer in the case of Callender did the same ; and there is
no impropriety in either case ; both are proper.

Mr. Wirt said that he would not follow the same track
which we had travelled. He has indeed followed differ-
ent principles. In all the cases which he has cited the
accomplice came forward voluntarily ; but he could not
have been compelled to give testimony ; there the objec-
tion went to the credibility, not to the competency of
the witnesses. The accomplice having confessed, can
not afterwards refuse to answer. H? states also, that an
accomplice being a competent witness by law, can not
be privileged from giving testimony, without a special
exemption. Now all accomplices are persons expressly
excepted by the law, unless they waive their privilege,
arid voluntarily come forward and swear.

Mr. Wirt. I deny that Mr. Martin stated my argu-
ment correctly. It is not a confession that makes an
accomplice a witness. Confession does, not prevent his
being a witness ; but it is not necessary to make him
one. The doctrine is that of approvers.

Mr. Martin. All the cases are, where the accom-
plice comes forward voluntarily.

Mr. Wirt. Porter's examination (in State Trials)
was a compulsory examination of an accomplice.

Mr. Martin. That case is not authority. It is an
arbitrary doctrine. They have two strings to their bow,
or rather two stools to sit on the treason and misde-
meanor ; that they may repose on the one, should the
other fail them. But we trust that both will fail them.
The case of compulsory examination applies to treason
only. Lord Audley's was a case of rape, not of treason.
I know not why Christopher Love's case was intro-



232 TRIAL OF AARON BURR.

duced, unless it were to show the coarse language
used in those days by prosecutors and judges. There is
nothing else remarkable in it. A m:m -refused to swear,
and he was committed for it. That a witness may be
committed for not swearing, but not for not answering
questions, is said to be my argument, and very uncan-
did deductions are made from what is called my posi-
tion. I never was so weak as to think or to say, that a
witness was obliged to be sworn ; and yet that he
might withhold testimony, and be silent at his whim and
pleasure. No, sir; my position was only, that a witness,
having a legal reason for refusing to answer, was never
committed : and so far is it from being dependent on
his whim, th.it he must swear to the existence of this
legal reason; and as much reliance is to be put on his
oath, on this point, as on any other.

I ask the gentlemen to produce any authority to
show, that a witness can be compelled to answer, where
he thinks it can criminate him ; but no such authority
exists. As it was now late, Mr. Martin said that he
could not finish his argument to-day, but hoped that
the court would adjourn ; and that he should be per-
mitted to add some observations to-morrow.

WEDNESDAY, June i/th, 1807.

Mr. Hay stated to the court, that many remarks had
been made yesterday, respecting the letter addressed
to Wmburn (in cypher) ; that it had been insinuated,
that it had been taken improperly if not felonously from
the post office; that this was evidently done to affect
the character of General Wilkinson, who having been in-
formed of it wrote him the following note on the subject:

RICHMOND, June 171/1, 1807.

SIR,

The letter addressed to Winburn was delivered to me
by Cnarles Patton, of the house or' " Meeker, William-
son & Patton," New Orleans ; and he informed me,
was transmitted in the enclosed envelope. Respectfully,
I am, sir, your obedient servant,

JAMES WILKINSON.

George Hay, esquire.



THE CYPHERED LETTER. 233

Mr, Martin requested to know who opened the letter,
or who first broke the seal?

The court said that this was a question which was not
before it.

Mi'. Bolts said that at a proper time they would bring
it before the court, as a substantive and independent
injury.

Mr. Martin said, that General Wilkinson was not a
proper witness to remove suspicions from himself. He
then resumed the argument which he left unfinished
yesterday.

The great question is not, whether the witness ought
to answer or not? But whether he is not the sole judge
whether his answer to the question will criminate him or
not? I contend that he is ; and it' it were otherwise, the
provision in his favor would be nugatory. He ought to
answer no question, if it tend or lead to criminate him.

The first gentleman who spoke for the prosecution, on
this point, manifested candor. He advised us not to
wander from the question. The advice was good ; I
wish they had followed their own advice. If good advice
had been followed, the post-offices would not have been
violated. Was, their advice given as a caution by these
kind, indulgent friends? Or was it to excite prejudices
against Mr. Burr? Many and strong attempts have
been made to prevent a fair trial. The newspapers, and
party-writers, are emploved to cry and write him down.
His counsel are denounced for daring to defend him.
The passions of the grand jury are endeavored to be
excited against him, and the very judges denounced if
they do not decide against him, at all events ! The laws
of the country, on the contrary, presume every- man in-
nocent till he be convicted. How. then, can such pro-
ceedings be justified? On the trial before ttie petit
jury, I admit that they may declare as counsel that Burr
is guilty ; but at this stage of the proceedings, every ob-
servation should be avoided that may create or excite
prejudices either on one side or the other. I hope that
the zeal of gentlemen will be moderated, and that they
will remember-the benignity of the law, which declares,
that it is better that ten guilty men should escape unpun-
ished, than that one innocent man should be punished.



234 TRIAL OF AARON BURR.

Gentleman say, that they are about establishing 1 the
relevancy of the paper. They do not know its contents ;
yet they take it for granted, that it is material, because
we oppose it. Heretofore it has been the invariable
practice to know, in such cases, and to produce evi-
dence both of the contents and the relevancy of such
exhibits. Suppose the letter were written in the French
language, they must procure a translator before they
could read it as testimony. Yet they can not compel
anybody to translate it against his will. A person ought
to be specially sworn as an interpreter, to translate
truly and faithfully. If they could not translate it them-
selves, they ought to have procured some person to do
it ; for the court is not bound to find a translator.

The gentlemen say that there is this distinction : that
a witness is not compelled to answer where the point
to which he is questioned is not in issue, but that he
must answer where it is in issue. No such distinction
exists. "No evidence ought to be admitted to any
point, but that on which the issue is joined." This is
manifest from MacNally, p. 2, and is the first rule of
evidence therein stated. The court is to judge whether
the evidence be pertinent to the issue or not.

Mr. Hay. That is what we want.

Mr. Martin. I am not arguing about that ; but de-
monstrating that no such distinction exists. I refer
the court to Hargrave's Index to the State Trials. ;> A
witness is not compelled to answer, where it tends to
criminate him, nor where it does not relate to the
issue.'

Mr. Hay and Mr. Wirt wished to see the pages re-
ferred to.

Mr. Martin. They are cases in the Second State
Trials, and already commented upon. I cite this au-
thority only to show Hargrave's opinion. He certainly
is of opinion that if a witness imagines a question has a
tendency to criminate him, or subject him to a Denalty,
he is not bound to answer it.

Mr. Martin then read Hoffman's argument in the trial
oi Smith, to show the question put to Ogden, concern-
ing the u Leander's " destination. He also quoted the
question put to Mr. Ogden relative to his first acquaint-



THE CYPHERED LETTER. 235

ance with Miranda ; when the court appeared to be of
opinion, and admitted the principle, that Mr. Ogden
was not bound to answer any question which might
criminate himself, but yet declared that he should
answer these questions put to him, pp. 95, 96, 98 ; and
added, that Talmadge's opinion was of no consequence,
but which was not admitted by the counsel on the other
side.

Mr. Hay. It is irregular to read the arguments of
counsel as authority.

Chief Justice. It is regular to read them only as ar-
guments.

Mr. Hay requested Mr. Martin to read the argu-
ments in the same case, on the part of the prosecution.

Mr. Martin, after some conversation on this point,
read the words of the prosecutor, in the same case, and
the argument of Golden, for the defendant, and a part
of the arguments of Mr. Edwards, one of the counsel
in the same case. There, it was evident that the court
was wrong. There was a question refused by Ogden
to be answered. From the arguments and observations
of counsel I infer that they waived their right to enforce
the law against Ogden. They declined at that time
calling on the court to enforce its decision, in respect to
Ogden's answering, but said that they did not waive
the right to call upon him thereafter ; but they never
exercised it. From which it may be reasonably inferred
that they had not the fullest confidence in the opinion
of the court, but thought it erroneous or doubtful.

As to the case of the United States against Goosely,
the counsel merely objected from memory : Mr. Wirt
only read a part of it from Call's manuscript report of
it, p. 140. But why did not the gentleman read the
whole of that case? If he had read another part of it,
it would have explained the law much more fully, and
proved that a witness could not be compelled to an-
swer a question which might tend to implicate or crim-
inate himself. [Here the case of the United States vs.
Goosely was fully read. Vide ante.']

Here, then, is a decisive authority that my position is
correct, as far as the opinion of one very respectable
judge (Judge Iredell) goes.



236 TRIAL OF AARON BURR.

Mr. Martin then read from Mac Nally, p. 258, the
authority relied on by the other side, the case of the
King against Edwards, accused of grand larceny. One
of his bail was asked whether he had net stood in the
pillory for perjury ? The question was objected to as
tending to criminate him. but overruled. He said that
both in England and Maryland, and in every State whose
laws he had had occasion to investigate, the law ex-
empted in penal cases a witness from criminating him-
self. This case, in Mac N.illy, 258, and 4 Term Re-
ports, 440, is the only authority relied on as establish-
ing the opinion that a witness may be examined as to
matters that make him infamous. It means, where a
witness has been convicted of an infamous crime, and
has suffered the execution of the judgment, that he may
be questioned as to that fact. That was a case where
bail was called on to justify as to the sufficiency of his
property, and the objection was to his credibility, on ac-
count of his former infamy, where he had been pun-
ished, but could not be subjected to any further penalty.
I doubt, however, this authority. Tiie prosecutions for
treason in England have been generally conducted with
candor and gentleness. These authorities (or rather
this authority, as there is but one case), however they
may be justified, are more rigid than formerly. They
are of modern invention. The mild maxim of the law
is, %i nemo tenetur seipsum. accusare."" Even after a man
is pardoned for a crime, he is not bound 4 to show his own
former turpitude or infamy : 2 State Trials, 822. An
additional authority on this point is I Mac Nally, 212,
rule the sixth, where it is said, that " whenever the
competency of a witness is objected to, on the charge
of conviction and judgment on an infamous crime, the
party making the charge must produce in the court the
record of the judgment, stib pede xiyiUi" which shows
that such evidence could not be extorted from the wit-
ness himself. There was no instance of such doctrine
until the decision of the King v. Edwards, in 4 Term
Reports. Until that decision, the rule of law was
sacred, that a record was necessary to be produced to
prove perjury. The relaxation of the law. with respect
to witnesses, is for the benefit of the party, because he



THE CYPHERED LETTER. 237

does not know what witness will be brought against him.
Peake, 88, explains this to be the reason. That a wit-
ness may be asked, whether he had been convicted and
punished ? 4 Term Reports, 440 ; was a decision in the
year 1791, since the revolution. It may ba no authority.
We do not know whether our courts of justice will adopt
this law-rule or not. It has not been adopted in Mary-
land. It has no bearing on the question. The true
question is, whether the court has a right to inquire into
the circumstances, or whether the witness is the sole
judge whether he ought to answer or not? Let us re-
vert to the authorities before cited by us. Mac Nally
256 : ' ; Hilsley, a Roman Catholic witness, bsing again
asked by Titus Oates, by virtue of his oath, whether the
house where he lodged, at St. Omers, was not governed
by priests and Jesuits ?" That was apparently an inno-
cent question ; but as it might be made a link in a chain
of testimony that would criminate him, the chief justice
said it was not a question fit to be asked, and told the
witness that he was not bound by his oath to answer it.
Mac Nally has put in that he was a Roman Catholic
priest, but nothing appears (in the report of the same
case in State Trials) to the court, of his being a priest.
The court determined that they were not to go into the
circumstances ; 'because, thereby facts criminating the
witness, would be disclosed, in order to show how an an-
swer to the question would criminate hitn, so that by his
answer he would lose the privilege of the law. In the
case of the voir dire, if a witness think himself interested,
he is excused from being sworn. We admit, that in this
case, the witness m.iy be swjra; but insist that he is
not to answer questions which he thinks may tend to
criminate him. His b;ing interested, ought to exempt
him from giving evidence, as in the case of the voir dire.
There is no difficulty in going into circumstances on the
voir dire. Disclosures can do no injury. But it is not
so, it' he think himself interested : he is excused, without
any examination into circumstances. Tnis rule is laid
down explicitly in Mac N.iily, 140, that " if a witness
think himself interested, although in point of fact he is
not, he should not be examined as a witness." A for-
tiori, in a case where his honor, fame, and life are in



238 TRIAL OF AARON BURR.

question, if a witness think that his answer will criminate
him, he ought not to answer. Does it not aoply with
tenfold force ? It would drive men to perjury, if witnesses
were compelled to answer in such circumstances ; and
Lord Mansfield has always laid it down as a great
maxim, that men ought not be exposed to temptation.

But it is said, that if an attorney be called to give evi-
dence, the court ought to decide whether he ought to be
excused, and that he is not judge for himself. By anal-
ogy, this is in our favor. The privilege belongs not to
the attorney, but to the client. The court in such cases
only asks him, whether his client made the communica-
tion to him as an attorney, or otherwise ? but the court



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