Aaron Burr.

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

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affidavits are made before private magistrates ; that is
the authority by which they are taken. These being in
writing, must necessarily be written by one of three de-
scriptions of persons: by a magistrate or judge; by the
party himself, or his agent ; or by the witnesses. With
respect to the necessity of their being written by a judge
or magistrate, it will not be contended, that they are
ound to submit to the drudgery of writing the affidavits,
and most of'them have no clerks. It is therefore usual
to prepare the affidavits before, and for the magistrate
to sign them thus previously prepared : and besides, a
man may be an able magistrate, but a bad clerk. With
respect to the parties themselves, it will not be con-
tended, that they ought to write them, because a very
great proportion of them are unable to write them.
Who, then, is to write them? their counsel or agent, or
some indifferent person. How can the party get an in-
different person to write his affidavits ? The moment he
calls for an indifferent person to write them, he becomes
his agent, and is incapacitated from writing them : and
according to the gentlemen's arguments, these affidavits
could very seldom be produced. Hence, from the
necessity of the case, a custom has prevailed among
lawyers, to write their clients' affidavits; and the gentle-
man himself admitted fifteen minutes ago, that he has
been in the habit of doing so himself.

As to the authority quoted by Mr. Hay, had he consid-
ered it but one tenth part of the time he has argued it, he
would have seen that it did not apply. In that case,
the affidavits, on which the motion for an attachment
was founded, were sworn to before Lothian, who was the
attorney, or agent, for the prosecution. Here the affi-
davit was written by the witness himself, and only cor-
rected and copied by the counsel. Does the gentleman
suppose, that the actual presence of the attorney would
vitiate the affidavit? When a man writes an affidavit,
he acts a mere ministerial part ; but he who administers
an oath, performs the judicial function of a judge, or
justice of the peace. It is a sacred rule, that a magis-
trate who administers an oath, should be disinterested



MOTION FOR AN ATTACHMENT. 273

between the parties; and in the case referred to, he who
administered the oath was not disinterested, but the at-
torney for the prosecution. I recollect an instance in
this city, where a magistrate, who was also a practitioner
of the law, drew an oath and administered it himself,
even in his own case : the first was not improper, though
the second was. Here Mr. Baker wrote the affidavit,
but did not administer the oath. There is a substantial
and plain reason, why the oath should be administered
with impartiality, but no reason can be assigned why the
agent of the party should not, as in this instance, copy,
and correct, in point of language, at the instance of the
witness; an affidavit prepared by the witness himself.
As to the witness being present, it makes no difference.
The practice, in such cases, is to read affidavits just as if
the witnesses were absent.

Mr. Burr. If it were perfectly agreeable to you, I
should have no objection to an examination of the wit-
nesses in court ; although the practice is, on principles
of convenience, otherwise: but if the court will submit
to the inconvenience, it will be agreeable to me. As to
the origin of this business, it is not perfectly undeistood,
and some unfounded insinuations have been made con-
cerning it. James Knox called on me, stated the usage
which he had received, and asked, whether any redress
could be obtained? One of my counsel, who was pres-
ent at this interview, concurred in opinion with me, that
some notice should be taken of this proceeding^ We at
first thought of referring him to Mr. Hay; but on recon-
sideration, we thought that, perhaps, Mr. Hay might
think himself disqualified from acting. Mr. Knox's own'
idea was, that he ought to come into court, and complain
himself, of the treatment he had received.

Mr. Wirt. Mr. Wickham says, that it is the practice
to produce affidavits on such motions; but this practice
is founded on expediency, and when it ceases to be ex-
pedient, the practice will also cease. The inquiry then
will be, whether it will be most expedient to examine a
number of witnesses openly, who are now in court, or
take their affidavits and read them ? The court would
wish to come at the true state of facts. I hope the gen-
tlemen on the othe$ side, would also wish the same. You
18



274 TRIAL OF AARON BURR.

*

are called on to make a rule against General Wilkinson,
to show cause why an attachment should not issue
against him ; and to support this application, affidavits
are offered, and said to be founded on expediency. We
contend that viva voce testimony is better. Before you
grant it, you must be satisfied that it is right. The ques-
tion thep is, which is most satisfactory to your mind, an
affidavit taken by the party, or evidence stated by the
witness himself? How can the court be satisfied till
the witness be examined and fully heard ? Was the
affidavit written by the witness himself? Did it proceed
from him ? or, was it advised by him ? or, did it contain
his words? The counsel, no doubt, endeavored to draw
it as correctly, and as free from bias, as he could ; but it
was difficult to state it precisely as the witness would
have done. The witness states his facts, but he states
them in his own language. Is it likely, that when it is
changed to the words of the attorney, the idea intended
to be expressed by the witness, will be precisely retained ?
If you take the evidence, not from the fountain head, the
witness himself, but from a statement taken by another,
you run the risk of not being rightly informed ; but if
you examine the witness, there can be no mistake.

Mr. Botts said, that Mr. Burr had acquiesced, and con-
sented that the witnesses should be examined in court,
though he regretted the departure from usage established
on principles of convenience.

Mr. Martin. If the witness be examined, the clerk
will reduce what he shall say to writing, so as to give it
the effect of an affidavit.

Mr. Hay apologized for frequently misunderstanding
Mr. Burr. He complained, that from their respective
situations he could not hear the accused, notwithstanding
his clear and distinct voice, and emphatic manner.

James Knox was then called, when

Mr. Mac Rae addressed the court. He said, that as
the business was of considerable importance to General
Wilkinson, it was extremely desirable that he should be
present at the examination of this and the other witnesses
who might be introduced on this occasion ; that he was
now before the grand jury, and he had applied to the gen-
tlemen on the other side to postpone the motion till he



MOTION FOR AN ATTACHMENT. 275

could be present, but they objected to any delay. He
therefore found it necessary to. apply to the court, to sus-
pend the examination for a short time, till the general
could be present ; that important facts, unknown to the
counsel for the prosecution, might be within the knowl-
edge of General Wilkinson, who therefore might material-
ly direct their inquiries in this examination.

Mr. Martin said, that the gentleman did not seem to
know in what stage of the business they were then en-
gaged ; that the question was, whether a rule should be
granted to show cause ; with which neither General Wil-
kinson nor his counsel had anything to do, and were not,
in fact, as much as supposed to be present ; and that the
court would take care that the witnesses should answer
correctly.

Mr. Wick ham complained, that they had been for a
considerable time prevented from making the motion, by
the delay of the gentlemen on the other side, and of Gen-
eral Wilkinson.

Mr. Mac Rae. The gentleman from Maryland has
said, that we were not present in court. I thought that
all the while he spoke, we were m court. The court
were pleased to notice our presence, and we were heard
and answered politely and respectfully: and what has the
court said? That gentlemen on both sides in court, had
a right to argue this question. It is now too late for
them to say, that they are exclusively engaged in this
motion, which we have an acknowledged right to discuss
and oppose ; and we shall be perfectly satisfied, if the
court will take notice of our observations, although Mr.
Martin should not. We hope, that if the reasons for de-
siring General Wilkinson's attendance appear as strong to
the court, as to the counsel for the prosecution, it will
consent to this short delay. We mean, with the leave
of the court, to put some questions to the witnesses, and
also, to produce some testimony ourselves; and we feel
confident, that we can s'atisfy the court, that no just foun-
dation exists for the present motion.

Mr. Martin. I thought I had assigned very sufficient
reasons, why the business should not be delayed. I knew
they were personally present. I saw them ; and if I had
not, they took good care to make us ojten hear them



276 TRIAL OF AARON BURR.

They detained us three or four hours the other day, in
opposing the motion for a subpoena duces tecitm, after the
court had decided that they had no right to interfere.
It is unfair to take up a great deal of the time of. the
court, when, in point of legal contemplation, they are
not in court. Let the present motion be decided, and
when the rule is made, they may bring counter affidavits.
Mr. Wirt. If presence depend on speaking, Mr.
Martin is not only present, but, perhaps, is the only per-
son who is. I am willing, however, to be considered, if
he please, as not legally present ; but, as amicus curia, I
may make a few observations. These questions may
merit the consideration of the court. " Here is a rule
which I am required to make on General Wilkinson, to or-
der him to show cause why an attachment should not issue
against him. Shall I make it on a personal examination
of the witnesses, or follow custom, and by taking their
affidavits exclude part of their evidence? Shall I use
one or two links, when I may have the whole chain be-
fore me? Where testimony is present, ought I not to
take the full benefit of it ?" The inquiry will be made,
whether the man's interrogatories, when General Wilkin-
son is present, will not give more satisfaction to the
court than his mere affidavit ? Will not the court think
that a full view of the evidence will be better? Though
not present, he is deeply interested in the event of this
motion, when its object is, that he should show cause
why an attachment should not issue against him for a
supposed contempt of the court ; his character as a man,
as well as his credit as a witness, is affected. We are
told that the streams of the prosecution should be kept
clear and untroubled. If gentlemen be serious in these
admonitions, they will not persist in this mode of ex-
hibiting mutilated testimony ; for these ex parte affi-
davits, uncontradicted by General Wilkinson, may
unjustly prejudice the public opinion against him. We
hope that the court will, for themselves, as well as for
General . Wilkinson ; for expediency and public justice,
suspend this examination for a short time, till he can be
present. We do not wish a postponement for two or
three days or more, but a mere suspension while he is
necessarily before the grand jury.



MOTION FOR AN ATTACHMENT. 277

Mr. Martin drew an analogy between this motion and
the proceedings before the grand jury. Gentlemen,
said he, have no more right to interfere in this stage of
the business, than we have to interfere before the grand
jury. It is exclusively in the power of the counsel for
the prosecution to send witnesses before the grand jury.
We have no such right. When the grand jury find a
true bill, and the trial in chief comes on before the
court, we can introduce what evidence we please, but
not before ; the principle is the same here. Gentlemen
have no right to introduce testimony when we apply for
the rule, but after it is granted, and they come forward
to show cause against issuing the attachment, then they
have an undoubted right to adduce what testimony they
think proper, to show that it ought not to issue. But
gentlemen say, that granting the rule may possibly tar-
nish the reputation of General Wilkinson. He may, on
showing cause against the attachment, come forward in
vindication of his character. We have no right to bring
testimony in our exculpation before the grand jury,
where indictments and accusations, committing our
character and as materially injuring us as he can be by
this motion, are- exhibited. Were we to attempt it,
their answer to us would be, " You are irregular ; you
can introduce no evidence before the grand jury, and if
they find any bill against you, you can wipe off the im-
pression made by their finding, in the usual and regu-
lar manner." As this is the way in which we wipe
off the impression of what is before the grand jury, so
he can wipe off the effect of granting the rule, on showing
cause.

Mr. Burr. It is not my wish to prevent gentlemen
from producing testimony in behalf of General Wilkin-
son, or to prevent his witnesses from being heard ; but
this can be done by introducing their affidavits. I
object only to the innovation of examining them per-
sonally on collateral motions like this, instead of reading
their affidavits.

Mr. Hay. It seems to be conceded that General
Wilkinson may produce testimony in his part. He has
been three hours before the grand jury, and in a very
short time, he may be discharged and appear in court.



278 TRIAL OF AARON BURR.

It is singular that we should, by their own concession
have the right to appear and interrogate witnesses after
the rule is made, and yet not at this stage of the pro-
ceedings, when we are present to contest it. The party
on whom such a rule is usually made, is absent ; and the
object of it is, to bring him forward and to show cause,
if he can, why he should not be attached for his sup-
posed misconduct. No opposition is usually made,
because the party happens to be at a distance ; yet if
he be on the spot, as in the present case, there could be
no sort of reason or justice in preventing him from
showing at once that the charges against him are per-
fectly visionary and groundless.

Mr. Wick ham stated the importance of immediately
proceeding with the motion ; and that, according to law
and practice, there was no just ground of opposing it;
but that if the counsel on the other side would name a
particular hour in the course of this day, when the mo-
tion would be made, they would waive their right of
going on with it now.

Mr. Martin hoped, that the court would express in its
order, that this postponement was not in consequence of
the right of the gentlemen to demand it, but of the
consent of his friend.

Chief Justice said, that it was necessary to do so. He
stated what the law and practice were, and observed,
that if the motion were to be postponed till Monday, and
the witnesses on both sides were then heard, it would
answer every purpose ; and ,it might be considered
then as a motion for an attachment, not for a rule
to show cause. This would prevent disputes and delay.

Mr. Randolph. We shall move then immediately for
an attachment.

Mr. Mac Rae observed, that they only wished the
motion delayed till General Wilkinson could be permitted
to attend.

Mr. Hay wished, that in order to save time, gentlemen
would prepare their interrogatories, by reducing them to
writing.

Mr. Martin said, that this could not be done till it was
determined that an attachment would go ; but that there
would be no delay on that account.



MOTION FOR AN ATTACHMENT. 279
MONDAY, June 22d, 1807.

Mr. Randolph, having directed James Knox and Chand-
ler Lindsley to be called, was proceeding to open the
motion which he had introduced on Saturday

Mr. Mac Rae had understood that this motion was to
be postponed till General Wilkinson could be present ;
and that the moment he was discharged from the grand
jury, they should notify the opposite counsel of it.

Chief Justice said, that as this was a motion for an at-
tachment against General Wilkinson, he ought to be
heard in his defense.

Here a desultory discussion took place.

Mr. Botts observed, that from a spirit of accommoda-
tion, they had agreed on Saturday, to postpone their
motion till this day; but it was in certain expectation
that General Wilkinson would be here to-day, and that
their motion would be no longer delayed ; that if they
consented to further delay, it might take several days
before the general would be discharged from the grand
jury; that though he was not present himself, he was
ably represented by counsel ; and that considering the
hardships and inconvenience imposed on Mr. Burr, by
such delays, he hoped that they would now be permitted
to proceed in their motion for an attachment, or a rule to
show cause.

Mr. Burr enforced the same principle. He was un-
willing to contravene the opinion or wishes of the court ;
but the subject required a few remarks. On Saturday,
he had waived his rights ; he had consented to vary the
motion, to give General Wilkinson an opportunity to be
present, under an expectation that he would be here on
this day, and that the motion would certainly be made ;
but he asked, whether his consent was to be indefinitely
extended to any period ? It was then in his power to
vary the form of the motion once more ; but notwith-
standing the inconvenience it would occasion to himself,
he was ready to waive his motion for the present, if they
would but name a certain time to-morrow, when they
would be certainly ready.

Mr. VVirt declared that was impossible for them to
say, when the grand jury would finish the examination



2 8o TRIAL OF AARON BURR.

of General Wilkinson ; before which time he could not
come into court. We would have thanked gentlemen for
the accommodating spirit which they had manifested, if
they had not completely wiped away the obligation, by
converting it into a topic of reproach. If the rule were
granted, General Wilkinson would still be before the
grand jury, who would not spare him to the court.

The Chief Justice said, that the court would have con-
ceived itself bound to hear the motion for the rule, as it
was a motion of course ; but now it was varied, partak-
ing of a motion for a rule to show cause, and of one for
an attachment. That if'Genera! Wilkinson should be in
court to-morrow, the motion might go on ; that it was
not certain that he would be present ; but that the tes-
timony of .Mr. Burr could not be delayed longer than till
to-morrow ; and that General Wilkinson could cross-ex-
amine these witnesses when he came into court.

Mr. Hay stated, that this was the very circumstance
which they wished to avoid ; that those witnesses were
brought hither to accuse General Wilkinson, and that he
ought to be present to shape his inquiries according to
their evidence, and to expose their fallacy.

Chief Justice. General Wilkinson can not cross-exam-
ine them till Mr. Burr have done with them.

Mr. Hay. How can General Wilkinson know what
questions to put, if he know not what testimony has been
given by those witnesses ?

Chief Justice. All the questions put to them, and their
answers, will be reduced to writing.

Mr. Hay was unwilling that gentlemen should believe
that he wished to waive the discussion for a single
moment. Perhaps the grand jury would spare him for
an hour. He understood that he was then employed in
decyphering a letter before them. He suggested that a
messenger should be sent up to the grand jury, request-
ing them to spare him for an hour, if it were compatible
with their arrangements.

The marshal was accordingly sent to deliver the mes-
sage, who returned and informed the court, that General
Wilkinson was at that moment under examination. The
motion was accordingly postponed till to-morrow, when
it was understood that it would certainly be made.



MOTION FOR AN ATTACHMENT. 281

The Chief Justice observed, that the attorney for the
United States might state to General Wilkinson, the
facts which were charged in the affidavit, and which
would agree in all the most material points with the in-
terrogatories that would be proposed to the witnesses.

TUESDAY, June 23d, 1807.

General Wilkinson appeared in court, and took his seat
among the counsel for the United States.

Mr. Burr rose and observed to the court, that as Gen-
eral Wilkinson was then present, he would proceed with
his inquiry. He would have it, however, distinctly un-
derstood, that if the charge could not be broght home to
General Wilkinson himself, so as to support the motion
against him, yet it must attach according to the testi-
mony, to any of his subordinate officers, as Mr. Gaines,
or any other.

Mr. Hay objected to this extension of the motion,
which he had understood to be confined to General Wil-
kinson alone ; particularly as they had not given any in-
timation of such an intention before : As no other per-
son had notice of this intended motion, but General
Wilkinson, the inquiry should be restricted to him
alone.

Mr. Randolph insisted that the evidence to be intro-
duced in support of their motion, must attach to General
Wilkinson, or any of his subordinate officers, or any other
person, according to what the witnesses should prove.
Before the witnesses were examined, he stated briefly the
nature of their motion and the substance of the testi-
mony by which he expected to support it. That the
charge against General Wilkinson was, that he had, in
conjunction with others, used unlawful and oppressive
means, under color and in abuse of the process of this
court, to bring James Knox and Chandler Lindsley from
New Orleans to this city; and thus had obstructed the
free course of testimony, and the fair and regular admin-
istration of justice ; and he hoped, that if the evidence
would prove the facts as he expected, the court would
punish him, his associates, dependents, or others, accord-
ing to the degree of their misconduct.



282 TRIAL OF AARON BURR.

The witnesses were then introduced. James Knox
was first sworn. His testimony was as folio weth :

He says, that he went to New Orleans some time in
March; soon after his arrival, he received a note from
General Wilkinson, making some inquiry concerning
Sergeant Dunbaugh. He waited on the general, who re-
ceived and treated him handsomely, took him by the
hand, and asked him if he were not afraid after what had
happened, and what had been said about him. He told
him he was not afraid. He asked him whether he were
at liberty to reveal what occurred in coming down the
river? The witness said he was at liberty to reveal what
he knew ; but did not wish to do so. He inquired
whether the witness were a free-mason ? He then began
to take notes. The witness stopped him from taking
down, and told him it was not his wish to have what he
said taken down. He complained of distress ; expected
to be ruined. Said that there was a great force coming
down the river. He asked the witness his circumstances;
what money was due to him for his services in com-
ing down? He answered, $150. Asked him if he
were in want of money, and offered to supply him, which
the witness refused. He said he was very unhappy ; had
lost his wife ; but all that was nothing to his trouble on
account of the state of the country. The witness said
that a subpoena had been served on him about the I2th
of May, by Mr. Gaines, to attend this court ; that he told
him he was not prepared to come round then, but he ex-
pected to get money in ten or twelve days, and would
then be ready. He went to Gaines's office about four
days afterwards; was taken by a sheriff on Sunday even-
ing, who took him to Judge Hall's. The judge was from
home. He went again, and was told by the judge that
he must give his deposition, or go round to Richmond.
He answered, that he had no objection to going to Rich-
mond ; but having no counsel, would not give his depo-
sition, lest he should commit himself. No person but
the sheriff was present. The governor desired the sheriff
to take his word, if the judge could not be found: saw
the judge, and was bailed until eleven o'clock ; gave two
securities, bound in five hundred dollars each, to avoid
being put in jail. When he appeared, the judge had be-



MOTION FOR AN ATTACHMENT. 283

fore him a number of printed interrogatories. The wit-
ness asked the liberty of reading them. He permitted



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 27 of 64)