Aaron Burr.

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

. (page 29 of 64)
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ral Wilkinson, for endeavoring to prevent the free course
of testimony. The immediate object will be to call on him
to answer interrogatories, whether improper practices have
not been used by him : the ulterior object will be deter-
mined afterwards. I believe that, in cases of this kind,
where strong suspicions exist, the attachment must go-,
because it is in the power of the party charged to purge
himself on oath. If he refuse, it arises from a conscious-
ness of his own guilt. His innocence is first to be pre-
sumed, and everything is in his own power. If he omit
to clear himself, the court will take measures for enforc-
ing obedience to the power and dignity of this tribunal.

Give me leave to open this case as it now appears, from
the testimony before the court. It no longer depends,
as at first insinuated, on the evidence of James Knox,
who has been censured for enmity against General Wil-
kinson. It has been enlarged and enforced by the testi-
mony of two very respectable gentlemen, brought for-
ward by General Wilkinson himself.

Sir, if we were to have the same command or range 61
persons that the counsel for the prosecution have, we
should lay before you a history of this illegal and oppres-
sive proceeding, far more detailed, and far more strong,
than is yet in our power. I judge, that this would be our
ability, when you hear so much from his own witnesses,
who are supposed by him the best to understand the cir-
cumstances which can operate in his favor. And here
give me leave to pay a tribute of applause (which I shall
always be ready to avow) to the frankness and manliness
of those gentlemen, whom he has introduced, in candidly
and ingenuously stating all the circumstances known to
them. That confidence which I had before in the evi-
dence of James Knox is greatly strengthened and con-
firmed by the strong and respectable testimony of Lieu-
tenant Gaines and Mr. Graham. Mr. Gaines, a lieuten-
ant in the army, was, by words, made a deputy marshal.
Sir, I feel a repugnance at the idea. I feel a repugnance
at this germ of an alliance between the civil and military
authority, when the civil wants not the aid of the military



MOTION FOR AN ATTACHMENT. 295

arm. I am not sufficiently versed in the policy of mixing
offices of such opposite descriptions together, without
necessity. I hope I shall never have occasion to be ac-
quainted with the extraordinary and dangerous policy of
joining together such offices.

That a man, owing obedience only to a superior milita-
ry commander, is to be placed in a civil capacity, for. the
singlepurpose of catching and detainingunfbrtunatemen,
who may happen to be witnesses in a particular cause, is
a dangerous innovation, and ought not to be tolerated.
Sii, I do not pretend to recollect the purport of that paper,
by the authority of which Lieutenant Gaines acted as
deputy marshal ; but I understand, that its principal ob-
ject was, to enable him to transport Mr. Knox from New
Orleans to Richmond. It is immaterial, at this time and
place, to enter into a specification of his power thus con-
ferred, or attempted to be conferred. It is sufficient that
a military man is created a deputy-marshal ; not for the
general purposes of the office of marshal, but for the sin-
gle purpose of proceeding and carrying by force, to Rich-
mond, a man apprehended as a witness in New Orleans.
This outrage, whether it be called civil or military, was
committed after Mr. Knox was regularly summoned.
The inference that I draw from this, is, that something
of a military nature was intended in order to effect the
object in view by compulsion.

Can you believe, that there were so few men of integ-
rity in New Orleans (I believe it abounds with such) that
no man could be found by whom this business could have
been executed, without this oppressive union of military
power with civil authority? It can not then be justified by
the plea of necessity. It was as unnecessary as it was unpre-
cedented and illegal; and whether this appointment was
suggested by the judge (who seems to have been infected
with the mania excited by Wilkinson), or whether it pro-
ceeded from Wilkinson himself, it was equally improper.
He wasappointed to an office without the possibility of em-
ployment ; the subpoena had been served, and he had
nothing to do as marshal. Every step taken, after the
subpoena was served, was military, coercive, and violent :
nothing conformable to law. Consider the whole testi-
mony, and say, once for all, whether it were not a con-



296 TRIAL OF AARON BURR

trivance to effect their favorite object, in pretended
observance, but in real evasion, of the law? It is evi-
dent that, in truth and in law, Mr. Gaines was no deputy
marshal. He was commanded by the act of congress,
to give bond and security before he entered on the
duties of his orifice; nay, more, he must qualify and be
duly sworn in the same manner that the marshal himself
is sworn ; and till he does comply with these requisites,
he has no more power as a marshal, than any man whom
I now behold in this assembly. [Here Mr. Gaines being
called for that purpose, showed his deputation.] But it
may be said that there was no occasion to give bond and
security because he was only appointed for the special
purpose of removing a man from New Orleans to Rich-
mond. But before he could be a marshal at all, these
requisites must be complied with. He would not other-
wise be a marshal for any purpose. Without doing so, he
was wholly unauthorized, and entitled to no respect as an
officer. He had no civil authority or character; he had
no right to take upon himself the office of sub-marshal.
Mr. Gaines frankly and candidly tells you, that he was
not absolved from military duty ; but to comply with
the wishes of the general, he was obliged, or found it
convenient, to act thus towards James Knox ; and he has
said, that if commanded by the general, he would have
put him in irons. The military genius prevailed over
the civil wherever it was seen. But he deemed it
necessary to make use of the judge to execute his plan.
This man, without any authority, by the orders of his
superior officer, and to please him, goes to Judge Hall ;
he has an interview with him : " How am I to get this
refractory man to Richmond?" "You can not do it
without an affidavit." " How must this affidavit be
procured?" The transaction furnishes the answer. It
is procured by a communication through Mr. Gaines to
General Wilkinson, that this step was necessary for
this particular purpose. The affidavit is made by Gen-
eral Wilkinson, knowing that its object was to effect the
transportation of James Knox to Richmond. He him-
self caused his own affidavit to be taken. He tells
Captain Gaines, a military officer under his command, to
tinnsport him. He willfully, then, contributed to do an



MO TION FOR AN A TTA CHMENT. 2 g 7

act which he knew to be illegal. Do not let me.be told,
that it was the act of the judge. The case will not be
amended by that refuge, for the judge himself, as is mani-
fested by all the circumstances, was stimulated by Wilkin-
son, and greatly transcended the limits of the law, to effect
the performance of an act to which Wilkinson was not
only contributing, but of which he was prime mover.
He demanded bail and bond security that Knox would
go twelve hundred miles. Sir, if conduct Jike this in a
judge is to be tolerated, there is an end of all law and
justice. He could not but know that there was no law
authorizing such an act of oppression. What, sir, shall
he, from his own arbitrary will, demand bond and secu-
rity, in a large sum, of a man who is merely summoned
to appear at a court as a witness, who is willing to
attemd, and whose failure to appear legally subjects him
only to an attachment ? Shall he cast a man thus sum-
moned into jail, because he can not give such excessive
security as he tyrannically demands ? They wished to
extort testimony from this man by intimidation and
violence; they required bail of him, though a stranger
without property, in five or six thousand dollars, in a
case where they had no right to require any security, or
to molest him at all. Was this man capable of giving
bail in so excessive a sum ? This judicial outrage of de-
manding bail where none was demandable ; of casting
the man into prison, because this illegal condition was
not, and could not be complied with, and this for the
purpose of extorting evidence, is an offense of unusual
enormity. What a mass of destruction to the rights and
privileges of private citizens is here contrived between
the judge and General Wilkinson ? The illegal design
can not be accomplished without an affidavit. Wilkin-
son voluntarily makes this affidavit, stating the material-
ity of the evidence of Knox. After it is made, by
what means does it come into the hands of Judge Hall ?
Who was the carrier of it? Not Lieutenant Gaines,
but General Wilkinson himself. And for what purpose?
To enable them to transport James Knox to Richmond.
And who is the executioner of this order? This trans-
portation is to be effected, not by a regular marshal or
civil officer, but by an officer under his command, unless



298 TRIAL OF AARON BURR.

Knox gives bond and security, in a strange country, to an
amount which he could not possibly command ; and,
moreover, this is to be executed on a man already in
jail for the sin of being a witness ! Thus General Wil-
kinson has incorporated himself with all Hall's acts.

But Wilkinson connects himself further in these pro-
ceediggs, which are all illegal from beginning to end.
Stimulated by Wilkinson's oath, his agents put, Knox in
confinement ; t and Knox was removed by a military
order, from an officer under the command of Wilkinson,
on board of a vessel under the control of this comman-
der-in-chief ; so that the outrage against Knox was com-
menced by his imprisonment on shore, and consummated
by his imprisonment on sea; and both contrived by Wil-
kinson. The same commander-in-chief has drawn money
from the military chest, for the purpose of aiding him in
these unlawful transactions. Sir, you can not view any
part of this case, without viewing the same military
features strongly marked; General Wilkinson as the
principal actor, as a military character, and for military
purposes. Wilkinson most assuredly considered himself
as possessing the most positive power over this vessel :
because he authorized Captain Gaines to offer him a pas-
sage in the vessel ; and how could he give such an au-
thority, if Read was not under his command ? Wilkin-
son was the effective commander of this vessel. Observe,
sir, if you please, the order which Gaines gives. It is a
written order, in a military style, delivered to Sergeant
Dunbaugh, commanding him to take this man into cus-
tody. He directs him not as a deputy marshal, but as
Captain Gaines, to take possession of Knox ; and he ad-
dresses him, not as an individual obliged to obey a mar-
shal, but as Sergeant Dunbaugh, bound to obey him as
his military superior officer ; and no permission is given
to Knox to go on shore, but through Wilkinson. The
spirit of Wilkinson appears through the whole of this
business. The genius of Wilkinson is apparent in every
stage of the transaction. I was at no loss at all, when I
saw the letter of the attorney-general directing so many
subpoenas to be put into Wilkinson's hands, to perceive the
object. What authority could the attorney-general con-
fer on Wilkinson? I had no hesitation, on reading this



MOTION FOR AN ATTACHMENT. 299

letter, to conclude that the intention was, to enable him
to effect by force, the removal of such persons as he could
not persuade to come, voluntarily. I refer to the fact : it
is acknowledged and can not be denied. [Here Mr. Hay
interrupted him ; he insisted that the letter should be
read, and that it would show that Mr. Randolph was in-
correct.] Mr. Randolph waived the reading of the letter ;
but appealed to the facts, and insisted that his inference
was justified by the testimony. He then proceeded. Is
it not singular, that subpoenas in a civil case, should be
confided to the military commander-in-chief ? Did it
not seem to tell him, that he was to use these subpoenas
with some degree of authority, and did he not at least ar-
rogate that authority to himself? Why did General
Wilkinson mention to Mr. Gaines the necessity of sum-
moning Mr. Knox, in recommending to him to find out
who were witnesses? Who, I again ask, carried the affi-
davit of Wilkinson to Judge Hall ? Mr. Gaines has stated
that he dicl not ; who, then, carried it but General Wilkin-
son himself? Does not this still go to show, that there
was not the minutest thing that General Wilkinson would
omit for this purpose? , There was a military temper, a
military spirit displayed by General Wilkinson through-
out the whole transaction. Why did he consult an attor-
ney? Was he a marshal ? Was military money put into
his hands to employ a lawyer? No, sir, but because he
viewed the subject in a military form. Gaines tells us
that Wilkinson must have known that Knox was carried
on board unwillingly; yet, notwithstanding he knew this
and that Knox was anxious to come on shore, he suffers
him to remain in the pinnace of a ship in the hold ; per-
haps to mess with degraded people; torn from his family
and his private concerns, without the common comforts
usually prepared for a sea voyage : an exile from his
country, without money, without friends. Mr. Gaines
states, that he, Wilkinson, had observed to him, that
there were some unwilling witnesses (such as he must
coerce by military rigor) ; and Mr. Graham tells you, that
he consulted him on the mean* of sending forward un-
willing witnesses. See, then, the solicitude of Mr. Wil-
kinson, through the .whole of this business ! He began ;
he consumated everything. Dunbaugh was applied to,



300 TRIAL OF AARON BURR.

for the liberty of Knox, and it was refused. But Wilkin-
son took his parol of honor from him at Hampton ; none
but Wilkinson could give him liberty. We have seen
him in the character of a military tyranj:. We shall now
find him using the blandishments of a courtier. He is
particularly complaisant and friendly ; offering him
money, and any services in his power, in order to relieve
his wants. At one time he asks him, " Are you not afraid
of seeing me, after what has happened to many ?" At
another, he asks him in a familiar way, if he were not a
freemason ; and thus profaned that institution, by at-
tempting to impose on him the seal of secrecy. Terror
was used to frighten him ; and when he was found too
firm and stubborn, cajoling and complacency were used.
The means of operation were changed as he found it ex-
pedient. It is immaterial in what order these things
took place. It is certain that they all took place. Vari-
ous passions played in his breast ; sometimes softness,
sometimes severity.

Sir, I beg to deduce from these facts, this conclusion :
that General Wilkinson caused the arrest and imprison-
ment of Mr. Knox ; that Wilkinson executed it ; and
that it was done for the purpose of compelling Knox to
give testimony. Though he was privileged as a witness,
Wilkinson, by his own authority, had him again impris-
oned on board the vessel : and this, also, for the same
purpose of compelling him to give testimony, and of in-
terrupting the free course of evidence. These are the
principal facts upon which an attachment ought to issue
against Generel Wilkinson. Sir, I will not stop to look
at the insinuations against Knox. He had been sum-
moned by the United States, and was waiting to
arrange his private affairs, to enable him to depart for
this place. The account which Knox has given, is just,
candid, and unexceptionable ; and shows that he was
very much disposed to give his evidence. It is truly a hard
case, that he should be solicited by the United States to
come as a witness, and when he does come, that his char-
acter should be assailed as participating of something
criminal. Facts, then, are fixed as to General Wilkinson.
But it may be asked what motives General Wilkinson
could have for his conduct ? It was said the other day,



MOTION FOR AN ATTACHMENT. 301

that he was the pivot of the prosecution. The prosecu-
tion was not hazarded before his arrival : not a single
witness was sent to the grand jury till he came. The
grand jury had to wait several weeks for his arrival. We
have already had occasion to notice the stake which
General Wilkinson had in the issue of this prosecution.
Sir, the truth is, and it can not be concealed, that the names
of Wilkinson and Burr are antipodes to each other by the
act of Wilkinson himself. Wilkinson declares, and the
fact is. that he never will regain his meridian brightness,
unless he can throw Mr. Burr into darkness. It is his duty
to take care, that like some mock god he fall down from
his imaginary glory, tumbling among ruins and into a
chaos of rubbish, which he himself has created.

Thus we have established what Wilkinson has done, and
what were his 'motives. Let me now show, that these
facts do amount to a contempt of the court. From the
authorities which I will read, it will appear that no force
or violence should ever be unnecessarily used, in making
arrests : and of course, every species of unnecessary force
in compelling witnesses to attend, to give depositions,
or in executing any other process, amounts to a contempt
of the court. Hawkins, in book 2, section 2, lays down this
general principle, that " it seems clear from the general
reason of the law, that all courts of record have a discre-
tionary power over all abuses by their own officers in the
administration or execution of justice." And in section 3,
he lays down these general principles, that " it is every
day's practice to grant attachments for misdemeanors of
this kind ; as, for using needless force, violence, and terror,
in making an arrest ; or by breaking open doors, where by
law it is not justifiable, and there is no plausible excuse
for doing it ; or treating the persons arrested basely and
inhumanly, or keeping them in custody, till they pay
money ; or making an arrest without due authority."
And in section 12 of the same book, after having
spoken of punishing by attachment the misconduct of
attorneys, he says : " Where the court may proceed in
the manner above mentioned, against other officers of
the court, there being scarcely anything of this kind to be
met with in the books, I shall only observe, that it seems
clear from the general reason of the law, which gives all



302 TRIAL OF f AARON BURR.

courts of record a kind of discretionary power in the gov-
ernment of their own officers, that any such court may
proceed in such manner [he is speaking of the process
of attachment] against any such officer, not only for
refusing to execute its commands, or for executing them
irregularly, remissly, or oppressively; but also for all
kinds of oppression or injustice done by them in the ex-
ecution of their offices, or by color of them." And, in
section 41, of same book, he says, that " making use of
the process of the court in a vexatious manner "and.
in section 42, that " using it to serve the purpose of op-
pression or injustice, are both punishable by an attach-
ment." Here, then, is a universal principle, that for all
kinds of oppression or injustice, done by the officers of
courts of justice, either in the actual execution of their
offices or by color of them, they may be pro'ceeded against
by attachment. If we do not produce a case in point, it
is for the reason mentioned by Hawkins, that there is
scarcely anything of this kind to be met with in the books,
and therefore the general principle must be resorted to.
Where the public. necessity and the cause of justice re-
quire that a party should be arrested by an officer, the
officer must use no violence or terror in making the ar-
rest ; he must be guilty of no act of oppression in any
case. If no violence or oppression ought to be used,
where an arrest is authorized, how much more must the
law discountenance such violence and oppression towards
those who are not liable to be arrested ? The oppression
practiced upon Mr. Knox in this case, has been by color
of the process of this court ; and those guilty of it ought,
on the principles here laid down, to be punished for it.
This is a rftore violent case than any mentioned by this
author. What would Hawkins have said to this case,
where we see a man, who was regularly summoned as a
witness, to attend a court of justice, seized at New Or-
leans, upon the affidavit of a military officer, dragged
before a person who is called amagistrste, for the express
purpose of being held to bail: required by this magis-
trate to give bail for his appearance next day, in an enor-
mous sum, in a place where he is unknown ; then thrown
into jail and confined for three days, in a sultry climate,
among negroes and felons ; then taken out by a military



MOTION FOR AN ATTACHMENT. 303

authority, placed under a military guard, and by a man
who, though a military officer, had the name of a deputy
marshal conferred on him, for the purpose of executing
this tyrannical act, and that- gentleman himself acting in
this double capacity under the authority of General Wil-
.kinson ; then forced on board a vessel, and continued under
restraint, till he gets within a few miles of Richmond ; and
all this, without so much as the pretense of any cause or
crime, and under the control of Wilkinson. I ask, what
would Hawkins, or other eminent English writers, have
said of a case of such flagrant oppression ? Is not this
the use of needless force, violence, and terror ? Was not
this an act of inhuman treatment to Knox ? Was not the
process of this court abused, for the purpose of oppres-
sion and injustice? Was not vexation practiced under
qplor of this process? And do not the offenses com-
mitted, come completely within the definitions of
Hawkins, as punishable by attachment ? Is not this
arbitrary and illegal arrest, contrary to all practice and
experience, in cases of witnesses in that country ? There
has been no example in this country, of confining a man
for the purpose of compelling him to give testimony.
He only enters into a recognizance to appear in court to
give testimony. No compulsion or influence is to be ex-
ercised over a witness; it is -forbidden by the law. All
temptation to perjury is taken away, as neither threats
nor promises, rewards nor punishments are permitted by
law. In the examination of a witness, no force is to be
used. On the contrary, when a witness has been sum-
moned, and has not failed to attend, there is no pre-
sumption or anticipation, that he will not obey the
summons ; there is, consequently, no compulsion to be
exercised on him. Voluntary affidavits can not be re-
strained. They are not free from exception, because
they are liable to be abused ; and are not legal evidence
on a regular trial, because taken ex parte ; but many
people will go before a magistrate of their own accord,
and make such affidavits. No person can prevent it.
But when these ex parte affidavits are spoken of, it is
always meant that they are voluntary. A forced affidavit
never was heard of before. Let us look at the power
which the marshal has had on such occasions. The 33d



304 TRIAL OF AARON BURR.

section of the judicial act points it out. i vol. Laws of
the United States, p. 73 : " If such commitment of the
offender, or the witnesses, shall be in a district other than
that in which the offense is to be tried, it shall be the
duty of the judge of that district where the delinquent is
imprisoned, seasonably to issue, and of the marshal of.
the same district to execute a warrant for the removal of
the offender, and the witnesses or either of them, as the
case may be, to the district where the trial is to be had."
What- is the power which the magistrate has by this
clause? It is unnecessary to inquire into the extent of
it. He had no such power as is here contended for.
The party accused was not committed by him, nor brought
before him, nor imprisoned in his district. He had,
therefore, no right at all to confine the witness for the
purpose of transporting him to the district where the
trial was to be had ; and yet, that was done by Mr. Hall,
notwithstanding the plain and explicit terms of the law
that the duty of "the judge of the district, where the
delinquent is imprisoned, is to issue a warrant, and of
the marshal of the same district to execute it, for the re-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 29 of 64)