Aaron Burr.

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

. (page 30 of 64)
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moval," &c. This Judge Hall well knew, that the ac-
cused was not imprisoned in his district ; that he had not
committed him ; and that, therefore, under this law, he
had no right to issue such a warrant ; and as he could
not lawfully grant, so the marshal could not lawfully
execute, such a warrant. The act was, therefore, unlaw-
ful, and every person knowingly and actively concerned
in it, or otherwise contributing to it, was particpating
in the offense, and guilty of a contempt of the court.

I am astonished at the boldness of this judge, in sup-
porting the arbitrary military order of the general ; for
such it assuredly was. Affidavits, sir, they called for as
gluttons; their greediness is never to be satisfied. But
why did they ask for them ? What was their object in
so doing ? Was it not to entangle their prisoner, by
compelling him to make an affidavit, which he could not
afterwards retract ? The witness once committed by his
oath, struggles to adhere to what he has sworn to. The
printed interrogatories pin him down to a particular
point. Whatever may be his wishes or feelings, he must
adhere to them. Great strength and presence of mind,
are not always to be expected in a person, placed as Mr.



MOTION FOR AN ATTACHMENT. 305

Knox was at New Orleans. That strength of mind,
which will adhere to the exact truth under every pres-
sure and difficulty, is not to be found in every man. The
witness is not to be always at hand to explain his affi-
davit. Mr. Knox was in a strange country, friendless, in
want of everything, and subject to the military despotism
of General Wilkinson. From his situation it might be
supposed, that the affidavit which he would give would
be different from what it would be, if given in a court of
justice, where law and order are preserved, and testi-
mony is not extorted at the point of the bayonet. This
was the object of the printed interrogatories; and of ob-
taining the affidavit of Mr. Knox: for they calculated,
that a regard for his own reputation would prevent him
from contradicting any fact to which he' had previously
deposed. He might hesitate between the love of truth,
and a regard for his character. He might greatly prefer
a candid detail of facts ; when by showing him his former
testimony, and reminding him that want of uniformity in
his evidence would expose him to public contempt, his
real regard to the truth would be shaken, so as to make
him confirm his former extorted statement. Sir, there is
not a more dangerous power, that can be exercised on
the part of the government, than that of forcing a man
a man to give an affidavit taken ex parte, by a man who
will not be careful to state facts as intended by the wit-
ness, but as tending to establish the object, or to favor
the views of those who take it. He may wish to retract ;
but when his deposition is brought before his eyes, he
will be unable. Sir, what must be the force of that
man's mind, who, unskilled in courts, unskilled in the
world, can give a correct statement of facts, when con-
fronted in court with his declarations before committed
to p^per, and can firmly explain and give a narration dif-
ferent from it? Who can be safe, if proceedings like these
should be tolerated ? We are told, that the bill of rights
gives to the accused the right of being confronted with
his accusers and witnesses. That privilege would be
evaded in a case like this. The witness would be un-
equally matched in meeting the terrors of a slanderous
world. Yes, he would be terrified by the censures of an
inconsiderate and defamatory world. As long as the law
could not reach him, he would not hesitate between ad-



3 o6 TRIAL OF AARON BURR.

hering to his former deposition, and what he would know
secretly within himself to be correct. I trust, that what-
ever may be the fate of this motion, you will not suffer
such encroachment on the privileges of witnesses ; that
you will not suffer them to be intimidated, and overawed
by art and dexterity, from telling the real truth ; or com-
pelled to give coloring to circumstances contrary to
their meaning. Sir, we can not do better than to adopt in
the law, the principle in the Lord's prayer: "Lead us not
into temptation." This improper mode of extorting ex .
parte testimony, will cause a man to have a conflict in
his own mind, between the truth of which he is conscious,
and what he may have hastily been made to declare. We
contend, that neither the proceedings in a cause, nor the
witness should be interfered with, and that to do either
amounts to a contempt of the court. In support of these
principles we adduce several respectable authorities.
5th Viner's Abridgment, pp. 444, 445,446. In 2d Atkin,
469, it was determined to be a contempt of the court, to
publish a libel against a p^irty, or an advertisement re-
flecting on the witnesses in a cause. And it was ob-
served by that great chancellor, Lord Hardwicke, "That
nothing was more incumbent on courts of justice, than
to preserve their proceedings from being misrepresented ;
that nothing was of more pernicious consequence, than
to prejudice the minds of the public against persons con-
cerned as parties-in a cause before it was finally heard."
It was also observed by him, that " to abuse the parties
in a cause, or to prejudice mankind concerning it before
it was heard, was a contempt of the court as well as to
scandalize the court itself." And in 2d Vezey, 520, it
was adjudged, that to publish an advertisement concern-
ing proceedings in court was a contempt of the court.
In the case here referred to, a man was committee! for
offering .500 to prove a fact, though the court had al-
ready decided the point. The principle is the same in
the case now before the court as in those cases. Why
is the publication of a libel against a party in a
cause depending in a court of justice, or of an advertise-
ment reflecting on the witnesses, deemed a contempt of
the court ? Why are all publications to inflame or preju-
dice the public mind prohibited ? Because they tend to
prejudice the public mind against the parties, or the pro-



MOTION FOR AN ATTACHMENT. 307

ceedings in the cause ; because they obstruct the free ad-
ministration of justice; because it may influence the
minds of the jury, who may have to try the cause, and,
consequently, may occasion an unjust determination.
Why are such rules of caution adopted in taking evi-
dence, but to prevent false swearing'' Why are needless
force and violence in making arrests forbidden, and why
is force towards a witness censured by the law? Because,
in these cases, the mind is not left free, though it ought
to be free. Compare these cases with the severity prac-
ticed in this case. The minds of the public may not be
prejudiced, but the mind of the witness was not free : he
was under temptation to adhere to what he had said. He
may, indeed, not have been under terror; perhaps the
firmness of his mind may have supported him, and pre-
vented him from being alarmed: but terror was rigidly
employed by military authority. He was arrested and
thrown by a military officer into jail ; was escorted by a
military officer ; forced on board a military vessel, under
the command of the same military officer, and there fora
long time restrained by the same military officer. If
there can be a case of greater enormity than this, it has
eluded my search. If there were nothing in this case
more than the improper and unjust effort to obtain the
affidavit of Mr. Knox to commit him, it would be suffi-
cient to constitute a contempt of the court, and would
be punishable by attachment: but it is rendered further
criminal by the force used to obtain it. The liberty of
the witness was invaded. A free citizen "of the United
States is dragged by corporeal force and thrown into
jail, for the crime of being a witness; and this within the
knowledge, and at the instigation of General Wilkinson.
I hope I shall not be told, that there was an association
with certain conspiracies, which rendered these rigorous
measures necessary and proper. There was no connec-
tion proved between Knox and any conspiracies. Why
insidiously attack a man as a witness, who is to be de-
nounced as a criminal? I hope that no man. who is not
guilty of a crime, will be caught and cooped as a jail-bird,
and compelled to receive crumbs of bread through the
grate of a prison, at the will of a military commander,
especially when I recollect what is to be superadded



3 o8 ' TRIAL OF AARON BURR.

that he is to be transported twelve or fifteen hundred
miles, not for trial or suspicion of an offense, but for the
iniquity of being supposed to be a witness, accidentally
acquainted with facts. What are to be the consequen-
ces, if such doctrines as these are to be tolerated ? That
il is only in the breast of a military commander to trans-
port any, the most peaceable citizen, if he be only sup-
posed to be a witness, en board a vessel, under military
restraint, at any season *bf the year, however inclement,
and any distance, without a crime, or the suspicion of a
crime ? We who have so often seen and read the Dec-
laration of Independence, must feel indignation at the
oppression practiced upon Mr s Knox. This is one of
the acts of oppression, we are told, that the British
government had committed against us. "Transporting
us beyond seas, to be tried for pretended offenses," is
stated in the Declaration of Independence, as one of the
principal acts of misrule which roused us to resistance,
and to declare ourselves independent. To be free from
such aggression on our rights was a fundamental part of
the basis of our independence. This was not a mere
ebullition of patriotism for the purpose of exciting popu-
lar frenzy ; nor one of those artifices used to increase
the public discontent, or to swell the catalogue of the
crimes committed by Great Britain. No, sir, this par-
ticular injury alleged in the Declaration of Independence
was a real, an' enormous grievance, which was execrated
by the wisest men of our country. Exemption from it
was founded in human rights, and was one of those
blessings of liberty to which we had by nature a right,
and which, having secured, we ought ever to be jealous
6f preserving. This invaluable privilege we claim as
citizens. It is a demand which we make of the govern-
ment for protection, and it must be guarded by the
court, unless some of those doctrines, which we have
long reprobated in a military despotism, shall be sanc-
tioned, to destroy our rights. Even then, when criminals
were transported, the innocent were left unmolested.
What shall we say to this aggravated case, when the
gentlemen themselves must admit, that this man is in
nocent ?

I will not enter into those feelings that might be de-



MOTION FOR AN ATTACHMENT. 309

scribed, but I feel horror when I reflect that an individual
innocent and inoffensive, engaged in locating lands for
*he subsistence of himself and family, should be stopped
t'rom completing his laudable undertaking, and taken up
far from his home, his family and friends, and transport-
ed as a witness twelve hundred miles, to the injury and
derangement of his views and domestic concerns. I
hope, sir, that transportation will be reserved for the
guilty. If these things be done and tolerated in the
green tree, what shall not be tolerated in the old-?
What is to be the effect of a precedent like this? Who
can foresae the consequences, if it be not repressed ?
This particular case may lead to dreadful events, and by
artificial means become a tempest. But remember, sir,
you have foresight, and can judge of the practical effects
of injurious precedents ; and if the unjust proceedings
on this case be not severely censured and punished,
though we may not suffer, our children will repent of it.
But this act is said to have been extra-territorial, and
that W T ilkinson was not engaged in the whole of it : and
therefore, it is pretended', without the control of the
court. This is true, as far as Mr. Hall is concerned. We
can not operate on* him here. If it were so at the be-
ginning, see how it has passed from New Orleans to
Richmond. Wilkinson was engaged in it at the begin-
ning, at the second stage, and at James river itself. The
spirit of Wilkinson prevades the whole. He is every-
where seen, not merely as an integral part, but as the
first cause of the whole. Is this court to suffer its
witnesses to be abused without its jurisdiction? But I
say, that it was not without the limits of the jurisdiction
of this court. t There must be a. power in every court to
procure the attendance of witnesses ; and wherever that
power extends, the witnesses are protected by it par-
ticularly if the man who has abused them, be present
before the court. General Wilkinson is present, and may
be animadverted on. I will not pretend to say what
effect this may have on his character ; nor can it affect
the right to examine into his conduct ; because he ought
to have preconceived the consequences before he com-
mitted the acts. The man who interposes the sword in
^upport of the civil authority, ought to have the patriot-



310 TRIAL OF AARON BURR.

ism to acquiesce under the consequences, let them be
what they may. The prying world may ask, whether
Wilkinson is to be suppoited in such outrages? in
practicing on the necessities, fears, and terrors of the
witnesses ? Whether he is to be supported in the duress
which prevailed on land and water? and in (what will
be more fully discussed hereafter) the improper, if not
felonious, taking of letters from post-offices? These
questions will be asked after the testimony is known.
The answers will be awful to him. The consequences of
his violent and outrageous conduct must be awful to
him. He will find himself divested of his military
array and parade, with which he used to be surrounded
at New Orleans, to stand here like a common individual.
He must then answer those questions, and account for
his invasions of the rights of his fellow-citizens. The
magnitude of the offense calls for exemplary punishment.
I insist on the motion that I have made, that an attach-
ment do issue against General Wilkinson, for the various
reasons I have stated. He is here himself, and if he be
innocent, he can answer and purge himself on oath, of
the guilt imputed to him; and, if guilty of abuse of
power, iet him be punished in the proper manner.

Mr. Martin said that he would make a few additional
observations; that he would not enter into a general de-
tail of the subject then, but would adduce some ad-
ditional authorities, to show that the acts at New
Orleans were illegal, and that the magistrate had
no authority for what he did. If it were pretended
that the act of Congress justified it, gentlemen were
much mistaken. [He then read Graydon's Digest of
the Laws of the United States.] The 33rd section of
the judicial act must be that on which they relied;
that witnesses examined under the circumstaces there
stated may be committed, but that this law extended only
to the magistrate before whom the arrested person was
brought to be examined ; that it says, " it shall be the duty
of the judge of that district where the delinquent is im-
prisoned, to issue a warrant, &c." ; that Hall did not
commit Mr. Burr, who was seized and transported more
than a thousand miles, was brought hither, examined
here, and recognized to appear this term ; that the mag-



MOTION FOR AN ATTACHMENT. 311

istrate had no power to examine the witnesses at all,
except where the accused person was brought before him
to be examined. That 2 Hale's Pleas of the Crown, pp.
51 and 285, and Mac Nally, 314, prove that Hall had
not this authority. Those authoritities state, that where
a crime is committed in the county of B., and the crim-
inal is arrested in the county of C., the magistrate
before whom ha is brought to be examined in the county
of C. has really no original jurisdiction over him, nor
can his examination be read on his trial, though from
the necessity of the case, and to preserve the peace, he
has a consequential jurisdiction ; and can examine and
commit him in order to be sent to the proper county.
But that here, as the party accused was not brought
before Hall, he had no power whatever. He had neither
original nor consequential jurisdiction. Everything he
did at New Orleans, at the request of General Wilkin-
son, was perfectly illegal and extrajudicial ; but that
perhaps it might be said, that state necessity would
justify what the law did not authorize. On this subject
he referred the court to what was said by one of the
most celebrated judicial characters of the British judi-
ciary, Lord Cambden, 3 State Trials, 320. He referred
also to i State Trials, vol. 7, 180.

Mr. Hay. He is anticipating arguments which we
shall never use.

Mr. Martin quoted 3 State Trials, 8th article of the
impeachment of Sir Robert Beckly ; I vol. 709, 710,
711, 716, 717, 2 State Trials, 306, vol. 12; 7 State Trials,
306.

Mr. Wirt. I shall not trouble you to take notes.
The short question is, whether General Wilkinson be
guilty of a contempt, and ought to be attached ? We
proposed that the court should decide at once, without
any observations on either side ; but gentlemen insisted
on an argument, and they have had it. Our impressions
are, that the evidence is perfectly clear ; and we are
willing to submit the question on the argument already
heard.

Mr. Burr's counsel insisted to speak further.

Mr. WickJiam. All questions are very plain to counsel
on their own side. They may be mistaken. Though it



3i2 TRIAL OF AARON BURR,

may not be perfectly clear on our side, yet I think I
can convince the court, that on an examination of the
law and the facts, the attachment ought to issue.

Mr. Mac Rae. I regret that so much of the time of
the court is to be consumed on every point. I confess
that my hopes were, that our offer to submit the case
without discussion, would have been agreed to ; but as
they insist on an argument, they must *be gratified. I
hope that I may be permitted to say, that in the whole
course of my short practice, I never read or heard of a
case similar to that now before the court. The motion
as to its foundation is " sui generis" No motion of a
similar character or nature can be found in the annals of
forensic proceedings, either in England or in this coun-
try. If there be any record of any such motion, I have
been unable to find it, after the most industrious re-
searches. Mr. Randolph, sensible of this, thought
proper to read a passage from 3rd Hawkins, to show that
such cases might occur, for which no precedent could be
found ; and that in such cases, the court was to decide,
" according to the general reason of the law."

It was deemed proper to state, as some kind of apol-
ogy, for the unmerited attack on General Wilkinson,
that no precedent could be found to justify this applica-
ti4n to the court. Before I shall reply to the animad-
versions on his character, I beg leave to observe, that
General Wilkinson is doubly protected by the law of the
land from any danger from this motion, even' admitting
that the charges against him are true, which is utterly
denied. The charge against him is, that he has ob-
structed the administration of justice in the cause of the
prisoner. He is said to have obstructed the administra-
tion of it by two distinct acts: First, by extorting testi-
mony from Knox, on this subject : Secondly, by forcibly
bringing him round from New Orleans to this city, to
give evidence here. If these charges were both true,
they would not warrant the motion to attach General
Wilkinson. I shall by and by prove them to be un-
;true. But suppose them, for the sake of argument, to
be true. If the offense have been committed at all.,
according to the allegations of those who have made
this motion, it has been committed at New Orleans.



MOTION FOR AN ATTACHMENT. 313

For any real offense committed at New Orleans, a person
is not answerable, before this court, because that place
is not within its jurisdiction. I should deem itan insult
to this court, to dwell on such a topic, or to use much
argument to prove that an offense, committed out of the
jurisdiction of this court can not be judicially noticed by
it. But suppose the offense to be done within the lim-
its of Virginia, and of course within the jurisdiction of
this court. General Wilkinson, even in that event, would
not be answerable in this form ; because he appears as a
witness, before the court, in obedience to its subpoena,
and a witness is privileged from arrests ; he can not be
arrested for any act of this description.

In the ist vol. of the Laws of the United States, p. 74,
it is 'enacted, " That the laws of the several states, except
where the constitution, treaties, or statutes of the United
States, shall otherwise require or provide, shall be re-
garded as rules of decision, in trials at common law, in
the courts of the* United States, in cases where they ap-
ply." There is no particular direction given in the laws
of the United States, as to the privileges of witnesses;
of course, whenever they come in question, it will be
proper to inquire in the acts of the legislature of Virginia,
how extensive their privileges are. In the revised code
of the Laws of this state, p. 278, it is enacted, " That
witnesses shall be privileged from arrests, in all cases ex-
cept treason, felony, and breaches of the peace during
their attendance." The only cases in which a person
who is a witness can be arrested, are treason, felony, and
breaches of the peace. Here we might safely rest his
defense ; but every step he takes, as a soldier and
patriot, he travels on solid ground. I trust that this
court will say, that instead of obstructing "the administra-
tion of justice, or deserving the gmallest censure, for
what he has done in this case, he has deserved well of
his country, and merits the highest encomium. When
he looks back to these transactions, and the part he acted,
as well towards Knox as to others, he will see no
cause to blame himself for anything he has done in
. public or private ; but will feel that pride which conscious
innocence never fails to inspire. He has risked his for-
tune, his life, and his fame, to save his country from



314 TRIAL OF AARON BURR.

audacious treason, which but for him, might have ended
in the subversion of the government, and destruction of
the liberties of his country. I trust, and he expects,
that his country and this court will examine and appre-
ciate his conduct, and will bestow on him that reward of
praise, which his praiseworthy deeds demand.

Sir, Mr. Randolph let out an important secret. The
gentlemen finding that there is no evidence to bear them
out in their illiberal attack on the character of General
Wilkinson, intimates that they will resort for testimony
against him, to the very man who is thus attacked ; that
they will call on him to answer their interrogatories. Is
this correct? Has Mr. Randolph's extensive reading
taught him, that, instead of proving General Wilkinson's
guilt, he shall be,condemned out of his own mouth?-

Here Mr. Wickham interrupted Mr. Mac Rae, and in-
formecl him, that he had misunderstood Mr. Randolph
(who was then absent), who had taken the course, pointed
out by the court, and the chief justice explained it thus:
that the attachment must go, if the testimony were
sufficient to prove that it ought to be granted ; and then
the defendant must answer interrogatories; but that
without sufficient evidence, an attachment could not be
granted in any case.

Mr. Mac Rae I have examined authorities, and un-
derstand the regular course ; but I understood Mr.
Randolph to have said, that if the evidence amounted
only to suspicion, General Wilkinson must be called on
as a witness against himself, which would be illegal and a
violation of a sacred right. Here Mr. Mac Rae referred
to 1st Dallas's Reports, 328, in the case of the Com-
monwealth v. Oswald, and read part of the argument of
the counsel, and the opinion of the court, approving
thereof; and contended that the contempt must be
proved by disinterested witnesses ; and that this proof
must be clear and full ; after which proof, the defendant
has the privilege of purging himself from the imputed
offense. He then proceeded : The question then is, has
he committed this offense or not? Mr. Randolph says,
that not merely the evidence of Knox proves this con-
tempt, but that two witnesses, whom we have ourselves
improvidently introduced, have confirmed it. This con-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 30 of 64)