Aaron Burr.

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

. (page 3 of 64)
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the most scrupulous regard to what he believed to be
the law. That the court, however, thought the marshal
had no such dispensing p^ovver. One very obvious reason
against the marshal's possessing this power of substitu-
tion, is, that if a person summoned should come into
court, and prove that he had been actually summoned,
he certainly would be on the grand jury, if one of the


twenty-four first summoned. The general principle is,
that when a person is put in the panel he stands upon
it, and can not be displaced by the marshal. There is
an evident distinction between actually summoning a
grand juryman, and mere'ly talking to a person about
summoning htm. The court is, therefore, of opinion, that
a person substituted in the place of one actually sum-
moned, can not be considered as being on the panel.

Mr. Burr. The court having established the principle,
we must ask their aid to come at the facts. We wish to
know, when certain persons were summoned, when dis-
charged, and whether other persons were substituted in
their stead.

The marshal said, that he had not the least objection
to. state all the facts necessary to be known on this
occasion. A few days ago he had received a letter from
Colonel John Taylor, of Caroline, one of those whom he
had summoned on the jury, in which he states, that a
hurricane of wind had destroyed his carriage-house, and
with it his carriages, so that he could not use them ; and
that his indisposition prevented his riding to Richmond
on horseback. This letter he had laid before both their
honors, and the chief justice had deemed his excuse
reasonable. He had then summoned Mr. Barbour to
serve in Colonel Taylor's place. He had also received a
letter from Mr. John Macrae, informing that he was
going to leave the state for his health. He had in conse-
quence summoned Mr. Foushee in his place. The mar-
shal added, that he felt it to be his duty to bring twenty-
four jurymen into court, and acted upon this principle.

The court decided, that Mr. Barbour and Mr. Foushee,
the substituted persons, were not on the grand jury.

Mr. Burr. I understand that the panel is now
reduced to sixteen, and that this is the proper time to
make any other exceptions to the panel. It is with
regret, that I shall now proceed to exercise the privil-
ege of challenging for favor. In exercising this right, I
shall perhaps appeal to the authority of the court to try
these jurors. Lest it may be contested, it is better to
settle the principle first.

Mr. Hay, without directly contesting, called for the
law to justify the application.


Mr. Burr. Let it be distinctly understood, that I
claim the same right of challenging u for favor,"' the
grand jury, that I have of challenging the petit jury. I
admit, that it is not a peremptory challenge, but that I
must show good cause to support the challenge. It will
be of course necessary to appoint triers to decide, and
before whom the party and the witnesses to prove or
disprove the favor, must appear.

Mr. Botts. There can be no question, that a person
standing in the situation of Colonel Burr, may challenge
the jury for favor. In civil cases, any individual may
challenge a jury for favor or partiality to his antagonist ;
a fortiori, it must exist in criminal cases. Mr. Botts here
cited authority in support of his principle, and admitted,
that the cause of challenge must be proved by testimony ;
that it was necessary to prevent such impurity from creep-
ing into the commencement of his trial, as must contami-
nate all its subsequent stages; that no reflection against
the integrity of the present jurors was intended; but in
principles of plain common sense it was proper to remove
every cause that might defeat the purposes of justice.

Mr. Hay disavowed the intention of opposing substan-
tial exceptions, and admitted the law to be as stated by
the opposite counsel.

Mr. Burr. I shall, then, proceed to name the persons
and causes of challenge. The first I shall mention is
William B. Giles, against whom there are two causes of
challenge. The first is a matter of some notoriety, be-
cause dependent on certain documents or records; the
second is a matter of fact, which must be substantiated
by witnesses. As to the first, Mr. Giles, when in the
senate of the United States, had occasion to pronounce
his opinion on certain documents, by which I was con-
sidered to be particularly implicated. Upon those docu-
ments he advocated the propriety of suspending the writ
of habeas corpus. The constitution, however, forbids
such suspension, except in cases of invasion ^or insurrec-
tion, when the public safety requires it. It was, therefore,
to be inferred, that Mr. Giles did suppose that there was
a rebellion or insurrection, and a public danger of no
common kind. It is hardly necessary to observe, that
with this rebellion, and this supposed danger, I, myself,


had been supposed to be connected. Perhaps this may
be a sufficient reason to set aside Mr. Giles. But if not,
I shall endeavor to establish by evidence, that he has
confirmed these opinions by public declarations; that he
has declared that these documents, involving me, con-
tained guilt of the highest grade.

Mr. Botts. There is no necessity of adding any-
thing to the observations of Colonel Burr. If the right
of challenge exists, the right to try the challenge exists
also. But while I am up, I will declare that no reflection
is intended to be made on the character or conduct of
Mr. Giles. That gentleman will be candid enough to
admit, that there is not the least design to wound his
feelings. It is with the utmost reluctance that Colonel
Burr has prevailed upon himself to advance this excep-
tion. I have authorities, however, to prove that these
two causes are sufficient to disqualify Mr. Giles. The
first relates to his public, the second to his individual

Mr. Hay. How many of the panel does the counsel
mean to object to ?

Mr. Botts. Only two.

Mr. Hay. I was about to make a proposition which
m-ight relieve us from all this useless embarrassment, and
which might gratify the views of the accused. If the
gentlemen who are challenged on the jury will consent to
withdraw themselves, I can have no objection. I am
content that every one who has made declarations ex-
pressive of decisive opinion, should be withdrawn' from
the jury. I am not disposed to spend time on such
points as these.

Mr. Burr. It will certainly save time, and I assent to
the proposition.

Mr. Giles consented to withdraw.

Chief Jiistice. The court thinks that if any gentleman
has made up and declared his mind, it would be best for
him to withdraw.

Mr. Burr. The other gentleman whom J shall chal-
lenge is Wilson Gary Nicholas. The objection is, that he
has entertained a bitter personal animosity against me;
and therefore I can not expect from him that pure im-
partiality of mind which is necessary to a correct decision.


I feel the delicacy of my situation ; but if the gentleman
will consent to withdraw, I will waive any further inquiry. '

Mr. Nicholas consented to withdraw.

The court established the following, as being the proper
questions to be put to the jurors: First. Have you
made up your mind on the case, or on the guilt or inno-
cence of Colonel Burr, from the statements you have
seen in the papers, or otherwise? and, finally, have you
formed and expressed (or delivered) an opinion on the
guilt or innocence of Colonel Burr (or the accused)?

The panel was here called over, and fourteen only ap-
peared, upon which the marshal requested the clerk to
add thereto the names of John Randolph and William
Foushee. The court then instructed the clerk to place
Mr. Randolph as foreman, who, being called on to take
the foreman's oath, addressed the court thus :
" May it please the court,

" I wish to be excused from serving. I will state the
reasons of that wish. I have formed an opinion, not on
the case now before the court, because I know not what
. the case is, but concerning the nature and tendency of
certain transactions imputed to the gentleman now before
you. I do trust, that without arrogating to myself any
thing more than becomes a man, I would divest myself
of this prepossession upon evid'ence. But I should be
wanting in candor to the court and the party accused, il
I did not say, that I had a strong prepossession.

Mr. Burr. Really, I am afraid that we shall not be
able to find any man without this prepossession.

Chief Justice. The rule is, that a man must not only
have formed but declared an opinion, in order to exclude
him from serving on the jury.

Mr. Randolph. I do not recollect to have declared

Upon which Mr. Randolph was sworn as foreman, and
the rest of the panel called to the book, until it was Dr.
Foushee's turn. He stated to the court that he felt some
difficulty about the propriety of serving on the jury.

After some observations by Messrs. Wickham, Ran-
dolph and Hay, the chief justice observed that the
difference seemed to be, that Dr. Foushee had made up
an opinion both as to law and fact ; whereas other gen-


tlemen had formed an opinion only as to certain facts.
Consequently Dr. Foushee was permitted to withdraw.

The grand- jury were then sworn, and were as follows :

John Randolph, junior, foreman. Joseph Eggleston,
Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor,
James Pleasants, John Brockenbrough, William Daniel,
James M. Garnett, John Mercer, Edward Pegram, Mun-
ford Beverly, John Ambler, Thomas Harrison, Alexander
Shephard, and James Barbour.

The chief justice then delivered an appropriate charge
to the grand jury, in which he particularly dwelt upon
the definition and nature of treason, and the testimony
requisite to prove it. After which they retired.

Colonel Burr then addressed the court, and stated his
wish that the court should instruct the grand jury on
certain leading points, as to the admissibility of certain
evidence which he supposed would be laid before the
grand jury by the attorney for the United States.

Mr. Hay hoped that the court would proceed as they
had always done before, and that they would not grant
particular indulgences to Colonel Burr, who stood on the
same footing with every other man charged with a crime.
That they had already charged the jury on certain. mate-
rial principles, and he trusted that the court would not
depart from established rules, or adopt a new precedent,
to oblige the accused.

Mr. Burr. Would to God that I did stand on the
same ground with every other man. This is the first
time I have ever been permitted to enjoy the rights of a
citizen. How have I been brought hither ?

The chief justice said it was improper to go into these

Mr. Burr said that the attorney for the United States
had mistaken his meaning, if he supposed that he wished
to be considered as standing there on a different footing
from other citizens ; that he viewed himself as only en-
titled to the same privileges and rights which belonged
to every other citizen ; that how much soever he may
have disapproved of certain principles laid down by the
supreme court in their late decisions-, he should not at
present insist on his objections to them ; that there were
many points on which the best informed jurymen might


be ignorant, or entertain doubts. All he wished the court
to do now was, to instruct the jury on certain points
relating to the testimony; for instance, as to the article
of papers.

Mr. Hay pledged himself that no attempt should be
made to send up any testimony to the jury without the
knowledge of the court.

Mr. Randolph obseryed, that it was not on particular
parts, but on certain principles of testimony, that he
wished instructions from the court to the jury ; for in-
stance, to instruct them how many witnesses were
necessary to satisfy them that an overt act was committed ;
how far facts committed in different districts should be
suffered to bear upon a single act committed in one dis-
trict ; how far facts done in one district, ought to be ad-
mitted as evidence to confirm the commission of other
facts in another district; and what, in short, was proper
evidence to be laid before them.

Mr. //tfj objected to this proceeding as extraordinary ;
that the opposite counsel would require from the court a
dissertation on the whole criminal law, upon every point
which might possibly occur ; that the jury were the
proper judges, and if they had doubts let them apply to
the court for instructions.

Mr. Wickham observed that this was not an ordinary
case, as had been said ; that the man who thought so
must have shut his eyes against the host of prejudices
raised against his client ; that the attorney for the United
States had said, that there was no man who had not
formed an opinion on it ; that he did not require a dissei-
tation on criminal law in general, but merely that the
court would instruct the jury on certain points of law
and evidence ; that the necessity of instructing arose
from the peculiarity of this case ; that there might be
witnesses from different parts of the United States, who
would state facts not connected with Colonel Burr ; thac
there were witnesses to show what was done in the west-
ern country when he was hundreds of miles distant ; that
the jury ought to know from the court how much of this
vast mass of testimony ought to have a legal application.

Mr. Hay enforced his former objection, that if the law
was to be laid down by the court, they would certainly


wish to have it explained by both sides; that the gentle-
men on the other side wished the court to decide without
argument, on matters the most important ; that as the
jury were very intelligent, and the court had already
given a general definition of principles, the correct course
was to proceed in the usual way, without wasting time
in unnecessary argument.

Mr. Botts said that in a case of such unexampled im-
portance, which was sufficiently attested by the busy
crowd around them, the noise in the country, the curios-
ity of the people, and the activity of the government,
no reasonable objection could be made to even wasting
a few minutes; that it was a case where the prisoner
required, and ought to receive, the benefit of every legal
right which the court could furnish.

Chief justice observed, that there would certainly be a
difficulty in the court's giving dissertations on criminal
or penal laws ; that he was not prepared at present to
say, whether the same evidence was necessary before the
grand jury as before the petit jury ; whether two wit-
nesses to'an overt act were required to satisfy a grand
jury ; this was a point which he would have to consider.
That he had not made up his mind on the evidence of
facts said to be done in different districts, how far the
one could be adduced as evidence in proof or confirma-
tion of the other ; but his present impression was, that
facts done without the district, may be brought in to
prove the material fact said to be done within the district,
when the fact was charged.

The question was postponed for further discussion, on
Mr. Hay pledging himself, that no evidence should be
laid before the grand jury, without notice being first
given to Colonel Burr and his counsel.

MONDAY, MAY 25, 1807.

The court met according to adjournment.

The grand jury appeared in court, and on its being
stated by their foreman, that they had been two days
confined to their chambers, and had no presentment to
make or bill before them, Mr. Hay observed, that he had
two bills prepared, but wished to postpone the delivery of
them till the witnesses were present, and it was ascer-


tained that all the evidence relied on by the counsel for
the prosecution could be had. He thought it probable
that in the course of a week he should hear of General
Wilkinson, who was still absent, and whose testimony
was deemed very important.

A further conversation took place, as to the propriety
of adjourning the grand jury to a distant day of the term,
and Monday next was mentioned as the time when they
would probably be required to attend.

The chief justice observed, that from the researches
which he had been able to make, he was still inclined to
favor the opinion, that there was no necessity for calling
the grand jury every day. This opinion was the result of
his reflection upon principle, not formed from any posi-
tive authority on the subject.

Mr. Wick ham having stated, that as a number of wit-
nesses were attending at a considerable distance, on the
part of Mr. Burr, it might be important to know when
the grand jury would be again called.

Mr. Hay observed, that a motion might be made,
which would render their presence necessary, even on
that day.

Mr. Wick ham then requested, that before any order
should be taken in relation to the adjournment of the
grand jury, the counsel for the United States might state
the nature and object of his motion.

Mr. Hay. The object of my motion is to commit Mr.
Burr, on a charge of high treason against the United States.
On his examination there was no evidence of an overt
act, and he was committed for misdemeanor only. The
evidence is different now.

Mr. Wickham hoped, that the application might be
made and counsel heard.

Mr. Hay. Gentlemen may be assured that they will
be apprised of the application ; but it is their wish that
it should be made, and the subject discussed in presence
of the grand jury ?

Mr. Burr. The gentleman has mistaken the object of
my counsel, as far as it is comprehended in my motion.
The design was not that the grand jury might hear, but
that the impropriety of mentioning the subject in
presence of the grand jury, might be made more manifest-


I think it may be demonstrated, that while there is a
grand jury attending, before whom a question may be
determined, there is an obvious impropriety in submit-
ting it to any other tribunal for any other purpose.

The grand jury were requested to withdraw.

Mr. Hay renewed his application, stating more at
large the grounds on which it was made; and moved the
court to commit Mr. Burr on a charge of high treason
against the United States, on the evidence formally intro-
duced, and on additional testimony to be now brought

Mr. Wickham inquired what sort of evidence was
intended to be introduced : whether that of witnesses to
be examined viva voce, or affidavits in writing ? Mr.
Hay answered, that where the witnesses were present he
intended to examine them viva voce ; but where they
were absent to make use of their affidavits regularly taken
and certified.

Mr. Botts. We may have cause of much regret that
the attorney of the United States has not given us some
previous notice of this application. From the engage-
ments between the prosecuting and defending counsel,
to interchange information of the points intended to be .
discussed, we had a right to expect, that upon a subject
like this, involving questions ne*v and important, we
should not have been taken by surprise. Indeed, from
the common courtesy and candor of the attorney of the
United States, we might have reasonably calculated on
a previous communication. This interchange of civility
and information, usual even in cases of inferior import-
ance, was more necessary in this case, because the appli-
cation is as unfortified by precedents as it is unexpected;
and because it involves questions of deep consideration
and weighty importance.

Mr. Hay interrupted Mr. Botts. Since the gentle-
man complains of being taken by surprise, I am willing
to postpone the motion till to-morrow.

Mr. Botts. Not a moment's postponement. Al-
though we sustain considerable inconvenience by being
thus suddenly and unexpectedly called upon, without
reflection or authorities, yet we should experience great-
er by a day's delay. I shall therefore beg leave to make
i. 2


a few remarks on this extraordinary application, and the
pernicious effects such an extraordinary measure, if gen-
erally practiced, would inevitably produce. The organ
particularly appropriated for the consideration of the
evidence which this motion calls for, is the grand jury ;
and the motion is to divest the grand jury of the office,
which the constitution and laws have appropriated to
them, and to devolve it upon the court. The grand
jurors' oath is to inquire into all crimes and misdemean-
ors committed within the district of the state of which
they are freeholders. Their office is to perform that
Avhich the court is now called upon to perform. To
them belongs the exclusive duty of inquiring and exam-
ining into all species of evidence, which may lead to a
conviction of the crime of which Colonel Burr is now
charged ; but there is a great objection to the exercise
of this examining and committing power by a high law
officer, who is to preside upon the trial, when the grand
jury, the appropriate tribunal, is in session. He is
obliged, previously, without a full hearing of both sides
of the case, to commit himself upon the case of the ac-
cused. Every one will agree, that a judge should, if
possible, come to the office of trial as free from prepos-
session, as if he had never heard of the case before. It is
true, that when a grand jury is not embodied, in order
to avoid a failure of justice, and to prevent the guilty
from escaping, the measure which the gentleman now
proposes, would not only be proper but necessary. The
examining and committing office of the judge is, in such
cases, justified by the necessity of the case ; but then it
is because the appropriate body of inquest is not impan-
eled to perform the office. The necessity does not exist
here. This novel mode of proceeding would give the
attorney for the United States the chance of procuring
an opinion from the court unfavorable to 'the accused.
Failing in that chance, he would then resort to his only
legal one before the grand jury. Why should this
court step out of its ordinary course to forestall or
influence the deliberations of the grand jury and the
public ? The motion is without precedent, or reason to
warrant such a precedent ; it is oppressive and against
all principle ; it is unreasonable and oppressive, that the


functions of the grand jury should be suspended, in order
that the court should assume them. Although in the
absence of the grand jury, it would be proper in the court
to determine a question of commitment, yet the history
of our criminal jurisprudence yields no instance of such
a motion during the session of the grand jury. I did
expect, that some solitary reason would have been given,
by the gentleman for the prosecution, in support of his
motion ; I did expecf, sir, that all the books of England
would have been ransacked ; I did suppose, sir, that the
musty pages of folios and quartos would have been
opened to support his argument ; I did expect, at least, sir,
that one case of state practice would have been produced.
In this expectation I am disappointed. I say then, sir,
that the motion before the court is without precedent,
unreasonable in its nature, inconvenient in its effects,
and oppressive in its end ; of a piece with the long
course of oppression which has been practiced against
Colonel Burr, but has been hitherto unknown in this
country ; unheard of in any country which enjoys the
blessings of freedom, and which, I trust, will never again
be repeated in these states.

Colonel Burr appears in this court ready to go on with
his trial ; he wishes no delay ; he is orjposed to every
measure which may occasion delay or procrastinate the
business. His great object is to satisfy his country, the
minds of his fellow-citizens, and even his prosecutors,
that he is innocent. We have suffered already two or
three days to pass away in idle discussion, or without
doing anything : and yet we are told, at last, after the
lapse of several months ; after a grand jury have been
convened and gone into their room ; after attending
with great inconvenience to themselves and expense to
the state ; after all this, we are told, that the business of
commitment is again to be gone over; that the evidence
which ought to be given to the grand jury, the only pro-
per tribunal at this time for its consideration, is to be
submitted to the court. We have, sir, made enough of
sacrifices ; we have been deprived of our legal rights ;

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 3 of 64)