Aaron Burr.

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

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it at this time ? " " Why does he not postpone it till
after the prosecution?" Why, sir, when Mr. Burr is dis-
charged (and I hope he will shortly be so), he may not
be disposed to trouble the court any further. How long
this prosecution will last, no one knows : perhaps a week ;
perhaps longer. It is already gone so far beyond our
expectations, that it is impossible to conjecture. Now
sir, may not similar contempts occur ? Is it not necessary
to restrain certain people, by convincing them, that such
practices make them liable to punishment ? But they
say, that these charges are no foundation for a motion.
Our object is not to inflame the public mind ; facts will
suffice. And what has General Wilkinson done ? He has
brought witnesses with him from New Orleans, by mili-
tary force. He has taken their depositions entirely ex
parte at theNpoint of the bayonet ; yet there is no horror
in all this, for the purpose of keeping their testimony
straight ! I lay down this broad position : that the man
who goes about collecting affidavits upon affidavits, cor-
rupts the fountains of justice. We have already seen a
volume of such at this bar. [Mr. Hay. Did they come
from New Orleans ?] I did not say from New Orleans.
I might have particularly mentioned Mr. Jackson, who.



250 TRIAL OF AARON BURR.

comes here with the depositions of witnesses, who are
thus bound hand and foot, thus tongue-tied because
their depositions had been taken. Sir, I saw them in this
very court examining witnesses with affidavits in their
hands, and comparing the one with the other : deposi-
tions taken not by commission", but ex parte. When an
interested agent thus goes about collecting depositions,
and with ignorant men, shaping them just as he pleases,
I aver that they are contrary to law, and to the spirit
and genius of our government ; that they are a contempt
upon this court, if done during the prosecution, by in-
terfering with the purposes of justice. Such men are
liable to an attachment, from the very moment when the
government took possession of Mr. Burr's person ; not
from the moment of his first arrest, but from the time
when they ordered Perkins to conduct his prisoner from
Fredericksburg to Richmond.

The gentleman has enummerated three species of con-
tempt : but the enumeration is certainly imperfect.
Does the gentleman know nothing of prosecutions for
libels on the court or on the parties? The publication
of a handbill against a party is a contempt of the court,
because the administration of justice is affected by it.
All acts to defeat justice, or to influence the public mind
pendente lite, are for the same reason contempts of the
court. Such contempts have been punished in Europe
and in this country. I repeat it, that whoever does any
act to influence the administration of justice is liable to
an attachment. But they say our object is to affect
General Wilkinson. He is a competent witness, however
arbitrary he maybe. His credibility will be judged of
from all the circumstances. Does General Wilkinson
shrink from the investigation ?

Mr. Hay. You know he does not.

Mr. WickJiam. The attorney for the United States
charges us with interrupting the prosecution. Our
motion is founded on right, and we will prove its truth.
He need not attend to it. If the court have not the right
to grant our motion, we shall lament it. We hope the
court will hear our motion to-morrow.

The Chief Justice said that the pendency of the prose-
cution was no objection to hear the motion but it was



OPINION IN WILLIE'S CASE. 251

another question, whether there were any grounds for it
or not ; and that the court would not say that a motion
relating to the justice of the case ought not to be heard.

Mr. Hay wished it postponed to a later day ; and
insisted that, admitting the charges were true, they could
have no legal effect on the prosecution. He said he
would repeat his motion to postpone the inquiry.

Mr. Martin and Mr. Botts denied it ; and after some
desultory conversation, the court adjourned.

THURSDAY, June i8th, 1807.

As soon as the court met, the Chief Justice delivered
the following opinion in the case of Willie :

In point of law, the question now before the court re
lates to the witness himself. The attorney for the United
States offers a paper in cypher, which he supposes to have
proceeded from a person against whom he has preferred
an indictment for high treason, and another for a mis-
demeanor, both of which are now before the grand jury ;
and produces a person said to be the secretary or clerk
of the accused, who is supposed either to have copied
this paper by his direction, or to be able to prove in
some other manner that it has proceeded from his author-
ity. To a question, demanding whether he understands
this paper, the witness has declined giving an answer,
saying, that the answer might criminate himself; and it
is referred to the court to decide, whether the excuse he
has offered be sufficient to prevent his answering the
question which has been propounded to him.

It is a settled maxim of law, that no man is bound to
criminate himself. This maxim forms one exception to
the general rule, which declares that every person is
compellable to bear testimony in a court of justice.
For the witness, who considers himself as being within
this exception, it is alleged, that he is, and from the
nature of things must be, the sole judge of the effect
of his answer: That he is consequently at liberty to
refuse to answer any question, if he will say upon his
oath, that his answer to that question might criminate
himself.

When this opinion was first suggested, the court con-



252 TRIAL OF AARON BURR.

ceived the principle laid down at the bar to be too
broad, and therefore required that authorities in support
of it might be adduced. Authorities have been ad-
duced, and have been considered. In all of them, the
court could perceive, that an answer to the question
propounded might criminate the witness, and he was in-
formed that he was at liberty to refuse an answer.
These cases do not appear to the court to support the
principle laid down by the counsel for the witness, in
the full latitude in which they have stated it. There is
no distinction which takes from the court the right to
consider and decide whether any direct answer to the
particular question propounded, could be reasonably
supposed to affect the witness. There may be questions,
no direct answer to which, could in any degree affect
him ; and there is no case which goes so far as to say,
that he is not bound to answer such questions. The
case of Goosely in this court is, perhaps, the strongest
that has been adduced. But the general doctrine of
the judge in that case, must have referred to the cir-
cumstances, which showed that the answer might crim-
inate him.

When two principles come in conflict with each other,
the court must give them both a reasonable construction,
so as to preserve them both to a reasonable extent. The
principle which entitles the United States to the testi-
mony of every citizen, and the principle by which every
witness is privileged not to accuse himself, can neither.
of them be entirely disregarded. They are believed
both to be preserved to a reasonable extent, and accor-
ding to the true intention of the rule, and of the ex-
ception to that rule, by observing that course, which,
it is conceived, courts have generally observed. It is
this :

When a question is propounded, it belongs to the
court to consider and to decide whether any direct an-
s\ver to it can implicate the witness. If this be decided
in the negative, then he may answer it without violating
the privilege which is secured to him by law. If a
direct answer to it may criminate himself, then he must
be the sole judge what his answer would be. The court
can not participate with him in this judgment, because



OPINION ON WILLIE'S CASE. 253

they can not decide on the effect of his answer without
knowing what it would be ; and a disclosure of that fact
to the judges would strip him of the privilege which the
law allows, and which he claims. It follows necessarily,
then, from this statement of things, that if the question
be of such a description, that an answer to it may or
may not criminate the witness, according to the purport
of that answer, it must rest with himself, who alone can
tell what it would be, to answer the question or not. If,
in such a case, he say, upon his oath, that his answer
would criminate himself, the court can demand no other
testimony of the fact. If the declaration be untrue, it
is in conscience and in law as much a perjury as if he
had declared any other untruth upon his oath ; as it is
one of those cases in which the rule of law must be
abandoned, or the oath of the witness be received.

The counsel for the United States have also laid down
this rule according to their understanding of it ; but
they appear to the court to have made it as much too
narrow, as the counsel for the witness have made it too
broad. According to their statement, a witness can
never refuse to answer any question, unless that answer,
unconnected with other testimony, would be sufficient
to convict him of a crime. This would be rendering the
rule almost perfectly worthless. Many links frequently
compose that chain of testimony, which is necessary to
convict any individual of a crime. It appears to the
court to be the true sense of the rule, that no witness is
compellable to furnish any one of them against himself.
It is certainly not only a possible, but a probable case,
that a witness, by disclosing a single fact may complete
the testimony against himself; and to every effectual
purpose accuse himself as entirely as he would by stat-
ing every circumstance which would be required for his
conviction. That fact of itself might be unavailing, but
all other facts without it would be insufficient. While
that remains concealed within his own bosom, he is safe ;
but draw it from thence, and he is exposed to a prose-
cution. The rule which declares that no man is compel-
lable to accuse himself, would most obviously be in-
fringed, by compelling a witness to disclose a fact of this
description.



254 TRIAL OF AARON BURR.

What testimony may be possessed, or is attainable
against any individual, the court can never know. It
would seem, then, that the court ought never to compel
a witness to give an answer, which discloses a fact that
would form a necessary and essential part of a crime
which is punishable by the laws.

To apply this reasoning to the particular case under
consideration : To know and conceal the treason of an-
other is misprision of treason, and is punishable by law.
No witness, therefore, is compellable by law, to disclose a
fact which would form a necessary and essential part of
this crime. If the letter in question contain evidence of
treason, which is a fact not dependent on the testimony
of the witness before the court, and therefore may be
proved without the aid of his testimony; and if the
witness were acquainted with that treason when the letter
was written, he may probably be guilty of misprision of
treason ; and therefore the court ought not to compel
him to answer any question, the answer to which might
disclose his former knowledge of the contents of that let-
ter.

But if the letter should relate to the misdemeanor and
not to the treason, the court is not apprised that a knowl-
edge and concealment of the misdemeanor would expose
the witness to any prosecution whatever. On this ac-
count, the court was at first disposed to inquire, whether
the letter could be decyphered ; in order to determin-e
from its contents how far the witness could be examined
respecting it. The court was inclined to this course from
considering the question as one, which might require a
disclosure of the knowledge which the witness might
have had of the contents of this letter when it was put
in cypher, or when it was copied by himself; if, indeed,
such were the fact. But on hearing the question more
particularly and precisely stated, and finding that it refers
only to the present knowledge of the cypher, it appears
to the court that the question may be answered without
implicating the witness ; because his present knowledge
would not it is believed, in a criminal prosecution, justify
the inference, that his knowledge was acquired previous
to this trial, or afford the means of proving that
fact.



EXAMINATION OF WILLIE. 255

The court is therefore of opinion, that the witness may
answer the question now propounded.

The gentlemen of the bar will understand the rule laid
down by the court to be this :

It is the province of the court to judge, whether any
direct answer to the question, which may be proposed,
will furnish evidence against the witness.

If such answer may disclose a fact, which forms a neces-
sary and essential link in the chain of testimony, which
would be sufficient to convict him of any crime, he is not
bound to answer it o as to furnish matter for that con-
viction.

In such a case, the witness must himself judge what
his answer will be; and if he say on oath, that he can
not answer without accusing himself, he can not be com-
pelled to answer.

Mr. Williams (counsel for Mr. Willie) stated, that he
had misunderstood him the other day in court, and
in a subsequent conversation had obtained more ac-
curate information. He does understand a part of that
letter.

Mr. Hay requested that Mr. Willie should be called
into court.

When he appeared, Mr. Hay interrogated him. Do
you understand the contents of that letter ? Answer, No.
Mr. Willie afterwards said, that he understood the part of
the letter which is written in Dutch.

Mr. Hay. Was this letter written by the hand or the
direction of Aaron Burr.

Mr. Wickham objected to the question.

Chief Justice. The witness and his counsel will con-
sult.

Mr. Hay repeated the question. Mr. Willie: Yes.
Mr. Hay: Which? By his hand, or his direction? Mr.
Willie: By his direction. It was copied from a paper
written by himself.

Mr. Hay. I wish this paper to be carried to the grand
jury. I presume there can be no objection.

Mr. Botts. No objection ! We call upon you to show
the materiality of that letter.

Mr. Hay. I deny the necessity of any such thing.
Until this letter be decyphered, it will be perfectly unin-



256 TRIAL OF AARON BURR.

telligible to me, and to the grand jury. It is no more
than a blank piece of paper.

Mr. WickJiam. I had always understood before, that
the testimony which is laid before the grand jury, must
not only be legal in itself, but proved to be material.

Mr. Williams begged leave to interrupt the gentleman.
Mr. Willie is anxious to be particularly understood. He
says, that this cyphered letter was first written by Mr.
Burr, and afterwards copied. But it is the cypher only,
which has been copied from Mr. Burr's original.

Mr, Hay. It is quite sufficient, sir. If Mr. Burr wrote
the cyphered part, he will be considered the author of
the whole.

Mr. Wickham. The gentleman has started a curious
proposition indeed ! I had always understood before,
that the whole included the part ; but it seems now, that
the part is to comprehend the whole.

Mr. Hay. The remark of the gentlemen may be wit,
sir, but he certainly knows that it is not law.

Chief Justice. Can you get this letter decyphered.

Mr. Hay. Is Erick Bollman in court? I wish him to
be called. These gentlemen demand proof of the ma-
teriality of this letter. Is this a question about which
the court will interfere? Can the court think it proper
to require the materiality of this cyphered letter to be
proved before it is sent up to the grand jury ? We may
turn the very favorite argument of gentlemen against
themselves. This letter is either material to the pres-
ent case, or it is not. If it be material, how can they
object to its production ? And if it be perfectly imma-
terial, what injurious consequences can result from its
being sent up to the grand jury?

Mr. Botts. I never supposed that it could be a ques-
tion, whether an immaterial paper could be exhibited
before the grand jury ? This question has been fre-
quently decided in the negative. On the trial of Smith
and Ogden, Judge Patterson solemnly decided against
such a proceeding. Were papers permitted to be laid
before a grand or a petit jury, before their materiality
was proved, it would produce an endless confusion and
waste of time. In Washington's Reports there is a case
where the court of appeals inferred error, because an in



THE CYPHERED LETTER. 257

ferior court had permitted the introduction of an imma-
terial paper ; and this, too, was in a civil case. Even if
the grand jury have called for it, it ought not to be sent
to them, before its materiality has been shown to the
satisfaction of the court.

Mr. Mac Rae. Would it not be as proper, sir, to com-
pel every witness, before he is sent up to the grand jury,
to state the substance of his testimony, as it is to require
proof of the materiality of a paper ? This inquiry, how-
ever, is never made. The only qualification which is re-
quired about a witness is, that he should be a legal,
competent witness ; not that he should be sworn to be a
material one. The very same principle is applicable to
this paper. After it is proved to be revelant testimony,
is it necessary that an inquiry should be made into its
materiality ? In fact, how can any such proof be given,
when the letter itself is principally in cyphers?

Mr. Wickham. Mr. Mac Rae has demanded -author-
ities ; I have prepared none at present, sir, because I
could not suppose that any were necessary. As to his
argument, that no inquiry is to be made into the materi-
ality of a paper to be sent to the grand jury, because
none is made into that of a witness, it does not apply.
When a witne?s is sent up before a grand jury, it is
presumed that his testimony is relevant to the case.
The only question is, is he a competent witness ? And
it is only on the ground of incompetency, that his testi-
mony is not legal. If competent, he is a legal witness;
he is sworn, and is forced to answer such questions as
may be put to him by the grand jury. If, however, he
refuse, they then call upon the court to interpose its jur-
isdiction ; and the inquiry will then be, whether the
question be material and proper? As to the papers,
they are not to be received at all, unless they are shown
to be relevant to the case. And where is the limit to
this species of proceeding ? Suppose, in this search
after papers, all the private letters of Mr. Burr should be
brought up ; all the most secret actions of his life should
be written down, and brought hither to be submitted to
public inspection ? will the court indulge them in such a
wide inquisition ?

Chief Justice said he had in some measure anticipated
17



258 TRIAL OF AARON BURR.

this question, and had reflected upon it ; his opinion
was this : a paper, to go before the grand or petit jury,
must be relevant to the case, even if its materiality were
proved. Why send this letter before the grand jury, if
it can not be decyphered ? If it can be decyphered
before the grand jury, why not before the court ? Let
it, then, be decyphered, and its relevancy may at once be
established.

Mr. Hay. Is there no difference between any other
paper and a cyphered letter proved to have been origin-
ally written by Aaron Burr?

Chief Justice. Still this letter may not be relevant to
the present case.

Mr. Hay then directed Erick Bollman to be called
into court, that he might be interrogated as to its con-
tents. He requested that the court would indulge him
for a short time, until he could execute some important
business before the court of appeals.

The court accordingly suspended the prosecution.

At half past one o'clock, the court again resumed the
business ; but neither Doctor Bollman nor Mr. Hay ap-
peared.

A few minutes after the court had resumed its busi-
ness, Mr. John Randolph entered at ftie head of the
grand jury, and addressed the court :

May it please the court : One of the witnesses, under
examination before the grand jury, has answered certain
questions touching a letter in cyphers. The grand jury
understand that this letter is in the 'possession of the
court or of the counsel for the prosecution. They have
thought proper to appear before you, to know whether
the letter referred to by the witness, be in the possession
of the court ?

Chief Justice observed, that as the letter was wanted
by the grand jury, a witness having referred to it, that
was sufficient to establish its relevancy, and directed it
to be delivered to them.

Mr. Mac Rae hoped that before the grand jury retired
they would be informed, that a witness had proved that
this letter was originally written by Aaron Burr.

Mr. Wickham. And I hope, they will also be informed
that the superscription on that letter has not been proved



WITNESS BEFORE GRAND JURY. 259

to have been written by Mr. Burr. The witness did not
and would not say, that he knew the superscription to
have been written by him.

FRIDAY, June iQth, 1807.

As soon as the court met, Mr. Burr addressed them.
He stated, that the express he had sent on to Wash-
ington with the subpoena duces tecum, had returned to
this city on Wednesday last, but had received no other
than a verbal reply from the president of the United
States, that the papers wanted would not be sent by him ;
from which I have inferred, said Mr. Burr, that he intends
to send them in some other way. I did not mention this
circumstance yesterday to the court, under an expecta-
tion that the last night's mail might give us further intel-
ligence on the subject. I now rise to give notice, that
unless I receive a satisfactory intimation on this subject
before the meeting of the court, I shall to-morrow move
the court to enforce its process.

Chief Justice handed down to the bar a copy of a letter
addressed from Doctor Erick'Bollman to the chief justice.
It was not publicly read, and for that reason Mr. Hay
declared that he should not make any remarks upon it.

Mr. Burr's counsel called James Knox and Chandler
Lindsley (two of the witnesses for the United States ,
whose affidavits had been drawn and were intended as
the ground of the motion for an attachment against
General Wilkinson.

Mr. Hay interrupted the motion, by stating that he
himself had a motion to make to the court ; and that was
for leave to send up such written interrogatories to the
grand jury as he thought proper to put to certain wit-
nesses. His reason was that some of these witnesses would
voluntarily depose to as little as possible ; that the grand
jury might not always, know the particular questions to
be proposed to them respectively, and to what point to
shape their inquiries ; that he himself better knew what
they would say (having seen their depositions), and that
his interrogatories might probably aid the jury in their
investigation.

Mr. Martin. I shall object to this motion, unless it



2 6o TRIAL OF AARON BURR.

be qualified by giving us the same privilege. We can not
send up our witnesses to the jury, but we may send up
our interrogatories. We will assent to the motion of the
attorney for the United States upon the condition that
he will assent to ours.

Some conversation ensued upon the motion tor an
attachment; when the Chief Justice asked if the papers
could not be put into his hands, and the argument take
place to-morrow ; that he wished to consider the ques-
tion before it was discussed.

Mr Hay approved of this course. It would prevent
the public exhibition of these affidavits, which were drawn
up for the sole purpose of defaming General Wilkinson,
and thereby making an improper impression on the pub-
lic mind with respect to the trial of Aaron Burr ; and
had been obtained from persons who were willing to say
anything to answer the purposes of the accused, but very
' reluctant to give any evidence on behalf of the United
States. That these were voluntary affidavits of these
reluctant witnesses, whose connection with the accused
would one day be known. If the place where, and per-
sons by whom they were dictated, were considered, the
court would see that the object was to prejudice the sur-
rounding multitude against General Wilkinson ; that they
had such deadly hatred against him, that if they could
but sink him, they were regardless of sinking themselves,
but that the integrity and patriotism of that man would
soon be known to all America ; that he had merely glanced



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