Aaron Burr.

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

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his eye at a single expression in one of these papers
which was as impudent a falsehood as ever malignity had
uttered. The court might compare these papers with
the law, and determine whether they would justify an
attachment or a rule to show cause, and that the court,
if they entertained any doubts, might then direct an ar-
gument ; but then he hoped that the witnesses would be


examined in court.

Mr Randolph spoke at considerable length,
been disposed to postpone this subject till to-morrow ;
but from the moment when he heard Mr. Hays antici-
pating speech he was opposed to all delay. Had pro-
duced documents to support his motion ; and yet, accord-
ing to Mr. Hay, it was dictated by nothing more than


the policy to defame General Wilkinson. Mr. Hay had
wandered into the very error which he had charged to
us. He had called upon the court to defend the char-
acter of General Wilkinson, the defender of his country,
who is to come through the fiery furnace purer than
gold ; and yet he has himself charged the witnesses now
before the court with malignity and rancor ! That
General Wilkinson was subject to the legal consequences
of his own illegal acts, and ought to be punished ; that
the affidavits were to the point, and ought to be read ;
they would show that he practiced a system of tyranny
from the commencement.

Mr. Botts. Why do gentlemen object to the present
motion being heard, when they have so often insisted
upon their own right to be heard by the court ? Why
do they reproach us with shrinking from the evidence,
when they are attempting to screen their favorite wit-
ness, General Wilkinson, from a fair investigation of evi-
dence? The witnesses ought to have been under the
protection of the court. Their countenances do not
bespeak devils ; they are like other men ; but they are
branded as villains. Does Mr. Hay desire that the char-
acters of these men should be immolated to this savior
of his country ? that their fair reputation should be
sacrificed to save his ? The constitution has recognized
the equality of man. Though those gentlemen may not
be decked out in the tinsel ornaments of military grandeur,
their -rights as citizens, and the respect due to their
characters, are the same as those of any other men. If
Wilkinson be able to go through the fiery ordeal, put
him on his trial. If his private declarations to Mr. Hay
are to be set against their oaths, let it be tried. I desire
for them to be put on trial as well as General Wilkinson.
Put them in one scale, and him in the other. We hope
our motion will be heard.

Mr. Mac Rae, at some length, expatiated upon the im-
propriety of animadverting at this time upon the char-
acter of General Wilkinson. The court had already
said, that no step should be taken which would affect
the justice of the case ; and it was therefore much bet-
ter for the court to pursue the suggestion which it had
out; to examine the papers in private, and see


whether the affidavits were relevant to the point, than
to prejudice the justice of the case by a public exhibition
of these affidavits ; that he was prepared to vindicate his
character ; but this was not the time, and he wished the
cause to be conducted regularly ; that the motion ought
to be reduced to writing, and the court would then de-
cide on it and the affidavits together.

Mr. Wickham protested against the secret tribunal to
which gentlemen wished to resort, for stifling inquiry and
murdering character. That gentlemen complained of
the waste of time, but they themselves wasted the most
by previous questions. The gentlemen who have made
these affidavits are upon their oaths. Is it right, said
he, for the counsel to charge them with perjury, and yet
not give them an opportunity of vindicating their vera-
city ? If an expression escape our lips, we are charged
with forstalling the public opinion. In every instance
they wander into bold assertions and violent invec-
tives. Is Wilkinson's character too sacred for public
investigation ? We have a right to be heard, and in-
sist on it.

Mr. Hay denied having made any such assertion. He
had merely alluded to one expression in their affidavits,
which was too monstrous to be believed. ' But why
all this feeling on the present occasion, when gentle-
men have so often charged General Wilkinson with

Mr. Martin. When did we charge him with any
other perjury, than that of violating the constitution
which he had sworn to support ? Is not this notorious ?
Are not Swartwout and others here to prove it ? We
did not say that General Wilkinson was ready to per-
jure himself; but merely that he had everything now at
stake, and would go almost all lengths to hang Mr. Burr.

Mr. Wickham insisted on their right to go on with
their motion ; that the court only wished to get the
affidavits to understand their arguments better; but even
the court could not deprive them of the right to be
heard as advocates.

After some other discussion, Mr. Burr agreed to place
the papers in the hands of the court, and to waive his mo-
tion till to-morrow.


Chief Justice. Reduce the motion to writing. [This
was done.]

Mr. Burr. It is only upon the affidavits of Knox
and Lindsley, that we move for a rule to show cause
why an attachment should not issue against General

Mr. Martin hoped, as Mr. Burr had postponed his
motion, the attorneys for the United States would post-
pone theirs.

Mr. Hay refused, upon the ground, that the witnesses
were now before the grand jury, and that his interroga-
tories would be necessary to direct their inquiries ; that
he knew the testimony better than they did, and in
saving time, he wished to promote their convenience and
to put them on the track to get the whole truth.

Mr. Burr. I instructed my counsel to consent to
this motion upon the condition, that I should also be
permitted to send counter-interrogatories ; and the way to
get the whole truth is to send interrogatories on both

Mr. Hay did not feel himself at liberty to acquiesce in
such a proposition. He would rather trust to the dis-
tinguished intelligence of the grand jury.

Mr. Martin said, that in his practice of nearly thirty
years, he had never known interrogatories to be sent to
a grand jury ; that such a practice had never been
known in the whole history of jurisprudence.

Chief Justice said that the court was unwilling to de-
clare its opinion before it heard argument on that point ;
that the practice was uncommon in America, because in-
dictments usually suggest enough to a grand jury; that
there was no objection, in principle, to interrogatories,
but that the witnesses ought to be fully examined ; that
witnesses were only on one side, arid, therefore, they
should relate all they knew on both sides.

Mr. Wirt. Though the practice is unknown in Amer-
ica, yet in Shaftesbury's trial, questions were put by
the attorney-general, the court, and the grand jury;
but the intelligence of this grand jury will save us this

Mr. Botts. I wish you had found <?ut this before.

Mr. Wirt. It is time enough.


Mr. Randolph. The case cited by Mr. Wirt shows
that interrogatories on one side only are not admissible.
The court was counsel for the prisoner.

Chief J-ustice. I do not recollect whether at that
time a prisoner were allowed counsel or not.

Mr. Hay. If the court allow interrogatories by both
sides to be sent to the grand jury, I am not willing to
send any. I never heard of such a case.

Chief Justice. Nor hath the court ; but as the grand
jury are only to examine witnesses on behalf of the
prosecution, if they are to be aided by interrogatories,
the principle of equal justice requires, that the witnesses
should disclose all they know, on one side as well as on
the other, and that the interrogatories should be sent by
both sides.

Mr. Burr stated that he recollected no instance of in-
terrogatories sent to a grand >ury, except in Kentucky,
in the prosecution against himself. That Mr. Davies,
the attorney for the United States, had drawn up some
interrogatories, which were shown to him, and with some
slight alterations suggested by himself, were sent to the
grand jury.

Here some conversation ensued relative to the form
of the motion for an attachment against General Wil-
kinson. The counsel for the United States insisted
upon a specification of the conduct, for which it was to
issue; that if generally expressed as a "contempt of the
court," nothing but the spirit of divination could enable
him to discover the specific offense charged against
him, nor to prepare for his defense ; that the precise
circumstances which constituted the offense ought to be

Mr. Burr and his counsel said that the specification was
to be found in the two affidavits, and that it was from
delicacy to gentlemen, he had not attempted to make
these affidavits matter of record, by introducing them
on the face of the motion. The motion reduced to
writing, stated the offense to be " for a contempt in
obstructing the administration of the justice of this
court." The court then adjourned till to-morrow, eleven

SATURDAY, June 2oth, 1807.

The court met according to adjournment. Present,
the same judges as yesterday.

Mr. Randolph rose to proceed with his motion,
when he was interrupted by Mr. Hay, who spoke to this
effect :

I have a communication to make to the court, and to
the counsel of the accused. The court will recollect the
answer which I received from the president, to my letter
respecting certain papers. He stated in that letter, that
General Wilkinson's letter of the 2ist October had been
delivered to Mr. Rodney, the attorney-general, from
whom he would endeavor to obtain it. By the last mail
I have received this letter from the president on the
same subject :

WASHINGTON, June ifth, 1807.

In answering your letter of the Qth, which desired a
communication of one to me from General Wilkinson,
specified by its date, I informed you in mine of the I2th,
that I had delivered it, with all other papers respecting
the charges against Aaron Burr, to the attorney-general,
when he went to Richmond ; that I had supposed he
had left them in your possession, but would immediately
write to him, if he had not, to forward that particular
letter without delay. I wrote to him accordingly on the
same day, but having no answer, I know not whether he
has forwarded the letter. I stated in the same letter,
that I had desired the secretary at war to examine his
office, in order to comply with your further request to
furnish copies of the orders which had been given re-
specting Aaron Burr and his property; and, in a subse-
quent letter of the same day, I forwarded to you copies
of two letters from the secretary at war, which appeared
to be within the description expressed in your letter.
The order from the secretary of the navy, you said you
were in possession of. The receipt of these papers has,
I presume, so far anticipated, and others this day for-
warded, will have substantially fulfilled the object of a
subpcena from the district court of Richmond, requir-
ing that those officers and myself should attend the


court in Richmond, with the letter of General Wilkin-
son, the answer to that letter, and the orders of the
department of war and the navy therein generally
described. No answer to General Wilkinson's letter,
other than a mere acknowledgment of its receipt in a
.letter written for a different purpose, was ever written
by myself or any other. To these communications of
papers, I will add, that if the defendant suppose there
are any facts within the knowledge of the heads of de-
partments, or of myself, which can be useful for his
defense, from a desire of doing anything our situation
will permit in furtherance of justice, we shall be ready
to give him the benefit of it, by way of deposition
through any persons whom the court shall authorize to
take our testimony at this place. I know indeed that
this can not be done but by consent of parties, and I
therefore authorize you to give consent on the part of
the United States. Mr. Burr's consent will be given, of
course, if he suppose the testimony useful.

As to our personal attendance at Richmond, I am per-
suaded the court is sensible, that paramount duties to
the nation at large, control the obligation of compliance
with its summons in this case, as it would, should we re-
ceive a similiar one to attend the trials of Blannerhasset
and others in the Mississippi Territory, those instituted
at St. Louis, and other places on the western waters, or
at any place other than the seat of government. To
comply with such calls, would leave the nation without
an executive branch, whose agency nevertheless is un-
derstood to be so constantly necessary, that it is the sole
branch which the constitution requires to be always in
function. It could not, then, intend that it should be
withdrawn from its station by any co-ordinate author-

With respect to papers, there is certainly a public and
private side to our offices. To the former belong grants
of lands, patents for inventions, certain commissions,
proclamations, and other papers patent in their nature.
To the other belong mere executive proceedings. All
nations have found it necessary, that, for the advantage-
ous conduct of their affairs, some of these proceedings at
least, should remain known to their executive functionary


only. He, of course, from the nature of the case, must
be sole judge of which of them the public interests will
permit publication. Hence under our constitution, in
requests of papers from the legislative to the executive
branch, our exception is carefully expressed, " as to those
which he may deem the public welfare may require not
to be disclosed," as you will see in the inclosed resolution
of the House of Representatives, which produced the
message of January 22d, respecting this case. The re-
spect mutually due between the constituted authorities
in their official intercourse, as well as sincere dispositions
to do for everyone what is just, will always insure from
the executive, in exercising the duty of discrimination
confided to him, the same candor and integrity, to which
the nation has in like manner trusted in the disposal of
its judiciary authorities. Considering you as the organ
for communicating these sentiments to the court, I ad-
dress them to you for that purpose, and salute you with
esteem and respect.


Accompanying this letter is a copy of the resolution
of the House of Representatives, containing the excep-
tion to which the president refers. I have also received
a letter from Mr. Smith, secretary of the navy, containing
an authentic copy of the order which was wanted, pre-
cisely corresponding with the unauthenticated copy in
my possession.

Mr. Wickham. I presume that these must be consid-
ered and noted as the return to the "subpoena duces

Mr. Hay. So far as they go. When we receive Gen-
eral Wilkinson's letter, the return will be complete. I
have also received a letter from the secretary at war,
which contains all the orders of his department relative
to Aaron Burr. All which papers I shall deposit with
the clerk of this court.

The following is the order of the navy department :

I certify that the annexed is a true copy from the
records in the office of the department of the navy of
the United States, of the letter from the secretary of


the navy, to Captain John Shaw, dated 2oth December,

In faith whereof, I Robert Smith, secretary of the
navy of the United States of America, havie signed these
presents, and caused the seal of my office to be affixed
hereto, at the city of Washington, this I7th day of June,
anno Domini, 1807 ; and in the 3ist year of the indepen-
dence of the said States.

(Registered,) . RT. SMITH,

Ch. W. Goldsborough, Secretary of the Navy.

Ch. Clk. N. D.


NAVY DEPARTMENT, zolh December, 1806.

A military expedition formed on the Western waters
by Col. Burr, will soon proceed down the Mississippi, and
by the time you receive this letter, will probably be near
New Orleans. You will, by all the means in your power,
aid the army and militia in suppressing this enterprise.
You will with your boats take the best position to inter-
cept and to take, and if necessary, to destroy the boats
descending under the command of Col. Burr, or of any
person holding an appointment under him. There is
great reliance on your vigilance and exertions.

I have the honor to be, sir, your most obedient,

(Signed) RT. SMITH.

Captain John Shaw,
or the Commanding Naval Officer,

at New-Orleans.

Mr. Randolph. May it please your honors :
I am now about to commit to your attention the mo-
tion of which we gave notice some days past. The gene-
ral purport of it will be to award a rule against General
Wilkinson, to show cause why an attachment should not
issue against him for attempting to obstruct the free ad-
ministration of justice. Whether we shall be again
charged with an intention to inflame the public mind
against General Wilkinson, or to defame him, I know
not ; but of one thing I am conscious, that my object is
essentially different. We do not proceed on mere gene-
ral surmise ; but on plain facts. We shall endeavor to


remove all the prejudices which have been excited, and
shall rely on plain facts only. We hope to guard the
public against erroneous impressions, by depending on
correct evidence alone ; and that it will be manifest to
all, that every effort to obstruct the free will of a witness
should be punished. If General Wilkinson's character
should be incidentally affected, it will not be our fault.
If he must take upon himself the legal consequences of
his own improper conduct ; if he must submit to legal
doctrines ; he can not complain. It is due to the United
States, to the witnesses themselves, and to the persons
accused, that obstructions to the free administration of
justice should not pass with impunity. Sir, we shall at-
tach General Wilkinson on specific allegations, and by
specific facts. It is his duty, if he can, to repel these by
legal evidence ; not by illegal testimony, or the protes-
tations of his counsel, that they believe him to be inno-
cent, and an Israelite without guile. I prefer this course
that there may be no more waste of time in passing eu-
logies on General Wilkinson. There will be a future
occasion which will require the concentration of all his
luster, and it will be as well that the beams of his glory
should not be dissipated till we make the attack that
will strike home.

The ground on which we make the motion is this, that
General Wilkinson, who is now before the court, in a case
depending between the United States and Mr. Burr, de-
liberately abused "the process of the law relative to a
witness who has been summoned in this case. He con-
trived, on his own affidavit, and by his own power, to
obstruct the free course of legal testimony, and to inti-
midate, and coercively bring to this court, a witness, by
the abuse of military authority. For this illegal pro-
ceeding it is the dftty of the court to take notice of Gene-
ral Wilkinson. As the cases ought to be kept distinct, I
speak of him only ; but it may be necessary to carry the
principle into immediate execution as to other persons.
The grounds of this accusation are the depositions of
James Knox and Chandler Lindlsey, which will be read
to the court.

Mr. Hay objected to the introduction of these affi-
davits, because he understood that they had been writ-


ten and dictated by the counsel of Mr. Burr. He did
not pretend to say, that they contained anything which
they did not believe to be true, nor did he know their con-
tents ; but he understood, that they were introduced for
the purpose of strengthening some testimony concern-
ing General Wilkinson, or of showing improper conduct
on his part ; that he understood, that those witnesses
had voluntarily gone and given information to the coun-
sel, upon which the counsel had written or dictated the
terms of those affidavits ; that his idea was that when
affidavits are taken by the opposite counsel, though the
court may be perfectly satisfied with the conduct of the
counsel in taking them, yet according to universal prac-
tice the court would not permit them to be read ; that
the legal authorities showed, that a court would never
issue an attachment founded on affidavits taken by the
agent or attorney of the party applying for it ; that this
court would admit of no exceptions to this rule ; the
court of King's bench determined that " it was invariable
and founded on the wisest and most obvious principles."
Mr. Hay here cited the case of the King v. Wallace, in
3 Term Rep. p. 403, where the court had set aside an
affidavit that had been sworn to before the attorney for
the prosecution, and refused to grant an attachment ; that
the present case was stronger than that. The objection in
that case was, that it was sworn to before the counsel ; the
objection here is, that it is penned by the counsel, and is
therefore stronger and more within' the scope of that
policy on which the principle of the law is founded ; that,
however, he did not mean to reproach gentlemen for the
course pursued in this instance ; that he was sure that
nothing like impropriety was thought of by them, and
that perhaps he would have done the same thing in their

Mr. Baker, May it please the court, I shall not un-
dertake to say, what Mr. Hay would have done in our
situation, nor do I feel much interested in knowing; but
I rise solely for the purpose of correcting a mistake which
he has committed. He says, that these affidavits were
originally written by Mr. Burr's counsel. As to the affida-
vit of Knox, I know I can say nothing ; but as to the
affidavit of Lindsley, it was written by himself. The


facts are simply these : He called upon me with his affi-
davit already written (I had never seen him before), to
know whether it were correctly written or not. I read it,
corrected some inaccuracies in the style, and wrote it
over again : it was not sworn to whe^i brought to me.
After I had corrected those grammatical errors, and 'sub-
mitted it to Mr. Lindsley's inspection, he said that the
statement was perfectly correct.

Mr. Wirt. Do you know, Mr. Baker, who induced
Mr. Lindsley to adopt that course?

Mr. Baker. Perhaps yourself, sir: I never saw Mr.
Lindsley before.

Mr. Mac Rae. I beg to add one observation to what
has been already said on this subject. As the witnesses
are now before the court, and can be examined viva voce,
there is no inconvenience in the objection. If they
were at a distance, so that they could not be personally
examined, we should have found no difficulty in admit-
ting their affidavits ; we should have waived the objection,
lest it might seem that we were afraid of them. I hope
that it will not be believed, that we feel any such ap-
prehension. I hope that it will seem to the court right,
that the affidavits shall not be read, especially as our
affidavits were objected to, when our witnesses were at
New Orleans. I hope that gentlemen will not insist on
the necessity of discussing this point further. If they
wish to know the whole truth, they will consent to ex-
amine the witnesses in open court.

Mr. Wickliam hoped that gentlemen would persevere
in the course which they had this day begun ; and in-
stead of warm and desultory declamation, come at once
to the law and authorities. They object to the reading
of our affidavits, and the question is whether in point of
law, their objection will be sustained? It happens in
many cases, and must happen in the progress of litiga-
tion, whether between individuals, or between the public
and individuals, that collateral points arise, in which it is
necessary that testimony should be heard: but if on
every collateral question, viva voce testimony were to be -
introduced, great inconvenience would result ; it would
lead to an unnecessary confusion and waste of time: and
the regular and established practice, therefore, is, when


these 'collateral points occur, not to produce viva voce
testimony, but affidavits in support of them. These

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 26 of 64)