Aaron Burr.

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

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goes no further. So in this case they ought only to ask
the witness, if he think his answer will criminate him ?
and it is impossible to obtain from him an explanation
of the effect of his answ3r, without taking away from
him the protection of the law.

If he gave it secretly to the judges, they might be
compelled to reveal it, however confidentially communi-
cated. The authority in I Cranch, in the case of Marbury
v. Madison, is said to be conclusive in their favor. I thank
them for adducing it. It is strongly in our favor, because
there the witness was not compelled to give the evidence
required. Gentlemen say that they disapprove of part of
the authority ; and so I. disapprove of so much of it as
declares that the court did not think themselves emoow-
ered to issue the mandamus to the Secretary of State.
They say that, in that case, the witness was bound to
state, and did state his objection to answer. We admit
it, and we state our objection. The witness says, " It
tends to criminate me," and this objection is sufficient.
But gentlemen say that we have produced no authority
in support of our argument. I insist that the opinion of
Judge Iredell in Goqseley'scase, and the case referred to
from 9 State Trials, are conclusive in our favor. The at-
torney for the United States has told us, that he expected
a great deal would be said by us, but it would not produce
conviction on his mind. We hope to convince the court,
but we do not expect to produce conviction on the im-
penetrable mind of Mr. Hay, which is harder than Ajax's
seven-fold shield of bull's hides. I do not think it neces



THE CYPHERED LETTER. 239

sary to say more, than once more to express our hopes
of a favorable decision.

Mr. Wickham. I shall add a few remarks to what
has been already said, and trust that the importance of
the subject will be my excuse. I mean, that the prin-
ciple is of very great importance ; for as to the paper
it is of but little.

They contend that Mr. Burr is liable for the letters of
persons connected with him, however remote the con-
nection, and whatever may be the contents of the letters.
This principle is too general, and more dangerous than
it is comprehensive. We do not admit it, either in its
application, or in the extent insisted on. It may be
constructed in the most dangerous manner. Blanner-
hasset, stated to be connected with him, is said to be
imprudent and of a singular turn of thinking. Is Mr.
Burr to be responsible for all his actual and verbal eccen-
tricities, merely because he was acquainted with him ?
I thought before that no man was liable for the acts of
another, unless done by his authority or contrivance.
Though we do not admit principles contended for by the
gentlemen on the other side (which we sincerely believe
to be unjust and unfounded) yet as it is not impossible
but the court may decide against us, it is our duty to
oppose them. This is a governing principle which may
run through the whole cause, and will apply to every
other similar evidence. We deem it our indispensable
duty to oppose the testimony now adduced, to affect
Mr. Burr with the acts of others. Was it fair to sound
so much alarm and prejudice throughout the whole
country, because we stated and availed ourselves ot
these legal objections? 1 am not well acquainted with
that branch of the science which is called criminal law,
and I hope to become less so ; but I had always thought
that more protection was necessary and afforded by the
law, for the rights of individuals, in criminal than in
other cases. If other prosecutors act like these, I am
mistaken. I never knew before, declarations made
against any person for standing on the rules of law. I
never knew before, that a citizen is to be reviled for ad-
hering to the laws of his country. The court ought to
stop gentlemen who make such an objection.



2 4 o TRIAL OF AARON BURR.

But it is said that " public prejudice is excited by his
mode of defense ! " It' his claiming legal rights excite
prejudice, we need not try him, but convict him at once
without a trial. The witness ought not to be compelled
to answer. The examination of facts leads to the dis-
covery which he seeks to avoid. He is on his oath. If
he commit p'erjury in answering this interrogatory, he
would do so in any other case. The question asked a
(Roman Catholic) witness, what business lie had at St.
Omers six years before, and what profession he was of,
are innocent questions: yet in both instances the wit-
ness was excused from answering, because he thought
it would criminate him.

They tell us, " that this objection admits the guilt of
Mr. Burr.'' No, it only admits that he is under prose-
cution. Does it not endanger this young man of being
arraigned, if he own connection with Mr. Burr? Is not
an innocent man in danger of conviction by perjury ?
The whole strength of the government is exerted against
the prisoner. The government would not suborn wit-
nesses ; but bad men might think to render an accept-
able service by swearing falsely against a party under
prosecution. The danger is real, though the party ac-
cused is innocent.

As to Goosely's case, gentlemen suppose me mis-
taken. Mr. Win. Marshall's (the clerk of the court)
recollection corresponds with mine. Our remembrance
is confirmed by Mr. Randolph, who was counsel in the
case, and by the judge. Reynolds was an accomplice,
and was proved, by the finding of the grand jury on the
record, to be an innocent man; and it was determined
that he was not bound to give testimony against
Goosely, because it might tend to criminate himself.
The case is the same here. Willie, the secretary of, is
connected, with, Burr. They might send up to the
grand jury a bill of indictment against him, if they did
not think him too insignificant. The witness, like most
other men, may estimate his own importance more
highly than others might be disposed to do. A ques-
tion, "where were you on such a day? " is an innocent
one; yet, as it might tend to criminate him by being
connected with other evidence, the court excused a



THE CYPHERED LETTER. 241

tness from answering it. The question at present be-
ore the court is of the same nature, and his answer
may be made, with the aid of other testimony, to crim-
inate him.

As to the authority from Mac Nally, that a man is 1
bound to answer the question whether he had been pun-
ished for a crime or not ? I shall observe that a man's
answering whether he had been punished, can not injure
his character, because the punishment is public ; if it
were private, he would not be compelled to answer.
Every man i$ indifferent until sworn. He ought to
refuse to be sworn to any inquiry tending or leading to
implicate him. The secret is locked up in his own
breast ; you can not know that such a secret exists until
he be examined, and you have no right to extort it from
him to his own injury. I am sorry that so much time is
consumed on so plain a question: but as it is important,
as it respects the progress of the investigation, I hope
we shall be excused.

Here some conversation ensued between Mr. Wirt and
Mr. Martin, respecting the legal authorities referred to
by Mr. Wirt, and supposed to have been admitted by
Mr. Martin.

After some further desultory conversation, the chief
justice asked whether there were any other question be-
fore the court ?

Mr. Mac Rae requested a decision on Dr. Bollman's
case, as he wished to interrogate him about the cyphered
letter.

Mr. Williams was ready to discuss the question.

Mr. Burr. There will arise some very important
questions, affecting the very sources of the jurispru-
dence of this country. I have several affidavits to
produce to show that improper means have been used
to procure witnesses, and thereby contaminate the pub-
lic justice ; when these proofs have been duly exhibited,
it will be the province of the court to decide, whether
they will not arrest the progress of such improper
conduct, and prevent the introduction of such evi-
dence.

Mr. Botts. I rise to apprise the opposite counsel, that
there are three or four questions of considerable import-
i.~ 16



242 TRIAL OP AARON BVRR.

ance which we shall bring forward as soon as possible.
Two or three days ago, I commented upon the plunder
of the post-offices ; and I assure the counsel for the
prosecution, that I shall probe that subject to the
bottom ; as no man can be more anxious than myself
that the stigma which this transaction attaches to the
inferior or superior officers of the government should
be wiped off. As a private citizen, or as counsel for my
client, I shall be sincerely pleased with a fit opportunity
of retracting the expressions which I have employed.
The court will at once perceive the necessity of going
into this inquiry at a very early period ; for if the officers
of government have hitherto broken open letters from
Mr. Burr, they may hereafter resort to the very same
expedient ; and by thus obstructing the very medium of
communication between Mr. Burr and his witnesses,
prevent him from summoning them, and preparing for
his defense. One more remark: yesterday I understood
Mr. Hay to charge us with having made certain insinua-
tions against persons not actually named. He demanded
why we had not forborne these charges, until we were
prepared to support them ? That remark, sir, struck me
with peculiar force. I was of the same opinion, that
some proof ought to be produced; I immediately rose
and professed my wishes to go into an investigation of
the case. But, sir, little did I expect that the gentleman
would have proceeded to have justified these crimes.
Little did I expect that such felonious transactions
should have been blazoned into mighty virtues, or that
it would have ever been maintained in this court, that
the persons who had failed to plunder the post-offices,
would have been guilty of a dereliction of their duty.
The offer to go into the evidence operated as magic : he
justified what he had before denied. I wish, sir, to ex-
plore the post-office laws to see whether they do not
contain some provision, prohibiting the introduction of
testimony thus illegally obtained.

Chief Justice. Unless these allegations affected some
testimony that was about to be delivered, how can you
introduce this subject ?

Mr. Hay informed the court that Colonel Morgan
was at that time before the grand jury, and they had



THE CYPHERED LETTER. 243

sent for a letter from Aaron Burr to him. Should
the letter (holding it in his hand) be sent to the grand
jury ?

Mr. Botts requested to see it. Here, said he, is a
small piece of newspaper attached to it, which ought
not to accompany it before the grand jury.

Mr. Burr. I have no objection that any of my let-
ters should be sent up ; but I trust, sir, it will be separ-
ated from this bit of a newspaper, and this comment
which Mr. Morgan has attached to it.

The letter was handed to the chief justice ; who ob-
served, that the only use of the newspaper was to show,
that at that time Mr. Burr was at Pittsburg.

Mr. Hay said it was nothing more than to refresh his
memory.

The chief justice decided that it was right to dissever
it from the letter; the newspaper itself was no evi-
dence ; but if Colonel Morgan would wish to refresh
his memory, there could be no objection. They were
accordingly separated by the directions of the court ;
one was sent to the grand jury, and the other to Colonel
Morgan.

Mr. Burr. The court has very properly demanded
some proof of the revelancy of our proposition. Sir,
we are ready to prove the violation of the post-office.
We are ready to fasten it on individuals now here, and we
are ready to name the post-offices, if the court .require
it, which have been thus plundered. When it comes
out, that evidence has been thus improperly obtained, we
shall say, sir, that it is contaminated by fraud. I will
name three peasons who have been guilty of improper
conduct, in improperly obtaining letters from the post-
office, to be evidence against me. These are, Judge
Toulmin, of the Mississippi Territory, Jahn G. Jackson,
a member of congress, and General Wilkinson. Two of
these persons are within the reach of this court. As
well as the improper manner in which they have pro-
cured affidavits and witnesses against me, I mention
these circumstances for two reasons : First, that the facts
may be proved to the satisfaction of the court : and sec-
ond, that the court may lay their hands on testimony
thus procured.



2 4 4 TRIAL OF AARON BURR.

Mr. Botts. The circumstance of the post mark
proves that the post-office was robbed of that letter ;
therefore it is not evidence.

The chief justice said let the consequences be as they
may, this court can not take cognizance of any act which
has not been committed within this district. That mark
is not necessarily a post mark. The court can only
know the fact, in a case to which it applies, except to
commit and send for trial.

Mr. Hay. Let some specific motion be made, and the
evidence procured ; and if there have been any crime
committed, let the offenders be prosecuted according to
law. These gentlemen know the course ; and I most
solemnly promise to discharge f the duties of my office,
whether they bear against General Wilkinson, or the
man at the bar. If the crime have been committed, it
is not the province of the court to notice it till after an
indictment has been found.

Mr. Botts. We only wish to prove, and prevent a re-
pitition and continuance of this improper mode of pro-
ceeding. The proof will affect General Wilkinson.

Chief Justice. If it did affect General Wilkinson, it
could not prevent him from being a witness.

Some desultory conversation here ensued, when Mr.
Burr observed, that he was afraid he was not sufficiently
understood, from mingling two distinct propositions to-
gether. As to the subject of the post-offices, it might
rest for the present ; but as to the improper means em-
ployed in obtaining testimony, they were at this moment
in actual operation. Some witnesses had been brought
here by this practice ; and it was one which ought im-
mediately to be checked : he did not particularly level
his observations against General Wilkinson. He did not
say, that the attorney for the United States ought to
indict, or that such a crime if committed out of this dis-
trict was cognizable by the court, unless it be going on
while the court is in session, or the cause depending ; in
those cases improper practices relative to crimes com-
mitted out of the limits of this court may be examined,
and the persons committing them attached. Such prac-
tices have been since I have been recognized here, a id
they ought to be punished by attachment.



MOTION FOR AN ATTACHMENT. ^45

Mr, Wirt I do not yet understand the gentlemen.
What is the object of their motion ?

Mr. Botts. We shall hereafter make it ; we have no
other object by the present annunciation, than to give
gentlemen a timely notice of our intentions.

Mr. Burr. We have sufficient evidence on which to
found our motion.

Mr. Hay. What motion ? .

Mr. Burr. I thought, sir, I had sufficiently explained
my intentions. I may either move for a rule, to show
cause why an attachment should not issue against Judge
Toulmin, John G. Jackson, and General Wilkinson, or
what is sometimes, though not so frequently practiced, I
may directly move for an attachment itself.

Mr. Mac Rae. At whose motion.

Mr. Burr. At the public's.

Mr. Mac Rae. A pretty proceeding indeed ! that the
public prosecution should thus be taken out of the hands
of the public prosecutor, and that the accused should
supersede the attorney for the United States!

Mr. Burr. A strange remark indeed ! As if it were
not the business of the injured person himself to institute
the complaint.

Mr. Hay. I wish for further explanation. Let the
specific charge, on which their motion is founded,, be
clearly pointed out and reduced to writing.

Mr. Burr. The motion will be for an attachment, for
the irregular examination of witnesses, practicing on their
fears, forcing them to come to this place, and transport-
ing them from New Orleans to Norfolk.

At this moment Mr. Randolph entered the court, and
observed, that if he had been present, he would have
himself opened this motion ; which was intended to oper-
ate immediately upon General Wilkinson, and ultimately
upon some other persons. Mr. Randolph here read the
motion which he would have submitted to the court.

Mr. Hay protested against this proceeding ; which was
calculated to interrupt the course of the prosecution ;
and was levelled at General Wilkinson alone. He asked
why these hints? Why these mysterious looks of awe
and terror, with which gentlemen come into this court,
l.s if they had something to communicate which was too



246 TRIAL OF AARON BURR.

horrible to be told? Was Mr. Randolph [when attorney-
general, it is presumed he meant] ever interrupted in the
midst of one prosecution, by introducing another? Do
they wish to intercept General Wilkinson from going to
the grand jury ? Mr. Hay claimed from the court, a pri-
ority for the business of the United States. Let the
present prosecution be concluded ; and gentlemen may
then proceed with their investigation into the conduct
of General Wilkinson.

Mr. Randolph. The gentlemen, sir, will understand
this subject much better to-morrow. I understood the
motion was to be postponed till to-morrow ; but as he
asked for some intimation of our designs, I thought proper
to accompany it with a few remarks. And, sir, if this
affair be really so stupendous, as I conceive it to be, if it
be true [Mr. Hay exclaimed that it was not] is it not
entitled to the most serious inquiry ? If this subject bear
upon the present case, though it may influence the result
of the trial, ought it to be suppressed ? Your honor will
direct me when to come out ; and I assure your honor,
that It is not merely conjecture, but fact. I shall come
forward with the affidavit of one of the witnesses to sup-
port our motion.

Mr. Martin. The gentleman is on his heroics. He
will protest where? In "The Argus," I suppose. He
hopped up like a parched pea, to make his protest
against our motion. He insists that we shall postpone
it till the trial is over, and the evil is done ! The court
and grand jury may be engaged in twenty different
prosecutions at the same time. We shall prepare our
motion, and make it to-morrow.

Mr. Hay". I hope the court will decide not to hear it
till this business is over. My protest will not have the
tenth p^rt of the effect of the attic wit of Mr. Martin.
I have a great deal of feeling, but it is not such as can
be excited by the elegant comparisons of that gentle-
man. Comparisons are always odious. This is expres-
sive of contempt, and is viewed as it ought. Mr. Hay
then expatiated at some length. He understood the
object of this motion was to affect the credibility of Gen-
eral Wilkinson's testimony ; and in what way ? He pre-
sumed that the court would not notice the pretended



MOTION FOR AN ATTACHMENT. 247

transactions which had been alluded to, in any other
way, than as amounting to a contempt. As to any other
offense against the laws of the United States, the true
course would be, to proceed in the way of a presentment,
or indictment in the regular way. Now, what are the
principles of the law of contempt in relation to this sub-
ject? General Wilkinson is said to -have taken the de-
positions of certain persons in New Orleans, and then to
have brought these reluctant witnesses hither by mili-
tary force. This is the only ground of the contempt
against this court? But how can a contempt be com-
mitted ? Either by directly insulting this court or abus-
ing its process, or interrupting its justice. Will it be
said that General Wilkinson's conduct comes under
either of those descriptions ?

Gentlemen have very often been pleased to put words
into our mouths ; and on one occasion, they have made
us to say that General Wilkinson is the " pivot of the
prosecution." And is it this very pivot which they are
now attempting to remove or pare down, by this precipi-
tate application ? It is my duty to vindicate him from this
unjust charge, which is as immaterial as it is unjust.
Are the communications between the court and the
grand jury to be thus interrupted ? Is their examina-
tion to-be suspended until General Wilkinson has been
put upon his trial ? If these suspected transactions do
amount to a contempt of this court, ft is not my
business officially to notice it. It is of no consequence
to them whether they prevail in their motion or
not ; their purpose is attained ; their pompous declama-
tion, that Wilkinson is a despot, and acted tyrannically,
is intended to excite prejudice against him.

Mr. Hay then said that he should move to postpone
the motion of gentlemen until the prosecution was over,
for several reasons: because it would necessarily inter-
rupt the business before the court ; because it was in-
tended to impeach the credit of a witness ; and because
this inquiry could be as well conducted after as before
the prosecution.

Mr. Mac Rae. I will affirm, sir, in the presence of
this court, and the surrounding people, that the charge
now adduced against General Wilkinson is completely



248 TRIAL OF AARON BURR.

unfounded. I affirm, that no witness has been brought
forcibly by General Wilkinson from New Orleans ; one
individual came reluctantly, escorted ; who, refusing to
obey the summons of the government, was regularly
brought before a magistrate, for his disobedience, and
dealt with according to the due course of law; and who
is now in the custody of a person before this court. All
the rest came as good citizens ought to have done ;
and the only fault which can possibly be attributed to
them, if it be a fault, is, that they came in the United
States vessel in which General Wilkinson was authorized
to come.

Mr. Wickham. May I request the liberty, sir, of
making a few remarks upon Mr. Hay's motion ? Mr.
Burr brought forward his motion in the simplest style
possible. There was no imputation ; there was no at-
tempt to excite the public feelings. He merely stated
his object in the most general terms ; he ought to have
been understood. The gentlemen, however, misunder-
stood him. They required a specification of our designs ;
we gave it to them in writing, and then we promised to
bring forward our motion to-morrow. They still in-
sisted upon a more particular explanation of our points ;
and Mr. Randolph rose and spoke to gratify them.
Nothing, however, seems to please those gentlemen.
They not only found fault with the motion, but the
looks of Mr. Randolph. He will scarcely, however, change
his face to please them. It is precisely such as God Al-
mighty gave him.

Mr. Hay, sir, has got into parliamentary habits ; and
talks very fluently of the previous motion. These
things are novel to me, who am a mere lawyer. On this
motion I will make but one remark. The constitution
has divided the powers of the government among these
great departments: the legislative, executive, and judi-
ciary. These must be kept separate and distinct, not
only in their duties, but in their practice. The legisla-
ture act upon expediency, the judiciary act upon right.
The gentleman, however, seems to think himself sud-
denly transported to the legislative hall ; and no doubt,
would soon think it very convenient to hang Mr. Burr.
He tramples all our judiciary forms under foot ; if we



MOTION FOR AN ATTACHMENT. 249

make a motion before the court, he soon trips up the
heels of ours with his previous motion ; but he has no
right to do so. And where is his doctrine to end ? We
certainly have the same rights which they have ; and as
they have moved the previous question, we move, sir,
that the court shall not "hear their motion. This will
be ringing the charges without end ; it is a new inven-
tion. It is better that we send these parliamentary dis-
tinctions to the other side of the house, where they ought
forever to remain.

Mr. Hay says that this motion ought not to be made
pendente lite, and that he ought to be tried like other
people. Sir, Mr. Burr ought to have the same justice
meted out to him, which is meted to every other person.
He stands here on the same footing, and with the same
privileges, as any other citizen in his situation. I assert
that any other man would have a right to this attach-
ment ; and that the motion ought to be made pendente
lite, if at all. " Why (they loudly ask us) does he make



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 24 of 64)