Aaron Burr.

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

. (page 31 of 64)
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MO TWN FOR AN A TTA CHMENT. 315

elusion is wholly unsupported by evidence. Destitute
of proof from beginning to end, the gentleman has beea
reduced to the hard and cruel necessity of heaping con-
jecture on conjecture, till he has conjectured that this
court will, without a particle of proof, conjecture and
grant their motion. Though I shall be followed by gen-
tlemen of unexampled talents and excellent memories, I
venture to affirm, that they will not be able to show,
that this motion ought to be granted, or even to excite
doubts. I must pass over some of that gentlemen's con-
jectures, without feeling any kind of disrespect for him
(I am disposed to treat him, and every other gentleman to
whom I am opposed, with respect). I feel myself com-
pelled to do so, because they do not appear to me to
merit a serious refutation. I shall, however, notice a
fe\v of them. First, he states a very important circum-
stance which he trusts will be conclusive with the court ;
that a military man was made, a deputy-marshal; and
that this was the result of a concert between Judge Hall
and General Wilkinson ; that they were secretly plotting
together to make it appear a civil, when in fact, it was a
military power. When Mr. Randolph formed his con-
jecture, he unfortunately forgot, that when he and Mr.
Graham were* deliberating on the way of bringing reluctant
witnesses to this place^ to give testimony in support of
the violated laws, he was only doing what he was bound
to perform in duty as an honest man. That he desired
to compel their attendance by legal means only ; that he
consulted Mr. Graham how to proceed ; that it was sug-
gested to him by Mr. Graham, that it would be proper to
see Judge Hall, and consult him ; and that Mr. Graham,
knowing that there was a misunderstanding between
Judge Hall and General Wilkinson, offered to consult the
judge himself, and did so. What then becomes of the
concert which is urged to have taken place between them ?
For it is said, that all were to be directed by General
Wilkinson. Did Mr. Randolph recollect this? Or did he
suppose that the court would attend to his statement of
secret plots and contrivances without proof to support it ?
You find that the fact is, that there was no concert between
them ; that they were separated by a previous misunder-
standing ; and that Judge Hall acted upon the applica-



316 TRIAL OF AARON BURR.

tion of Mr. Graham. Away, then, goes this conjecture ;
in truth, so all must go: for he has no proof to support
any. But " a military man was made a marshal."
What of that? Who made him so? You recollect the
interrogatory put yesterday to Mr. Gaines. "Would
you have accepted of the deputation unless you knew
that it would be agreeable to General Wilkinson ?"
Gaines said three times on oath, that he had no previous
communication with General Wilkinson on the subject ;
that he was advised by Mr. Graham. Did not Mr. 1
Graham say that he had urged him to accept it ; and
that it was much against his inclination that he did
accept it? This conjecture also falls to the ground. It
is a poor prop ; but like the rest of the props, weak
and useless.

But " Captain Gaines acted contrary to law." Sup-
pose we admit (but which is not admitted), that Captain
Gaines did act contrary to law. What is that to General
Wilkinson ? Is he anwerablc for it? It was thought in
days of yore a hard rule, when theyvisited the sins of
the fathers upon the children, to the third and fourth
generation ; but it would be still harder to make General
Wilkinson responsible for the supposed misconduct of
Gaines. I have shown that there was no sort of connec-
tion between them. Gaines has declared there was none.
Gentlemen seem to wish to prove, that Gaines has done
what is unlawful, and then to impute without proof, the
whole to General Wilkinson. I believe the spirit of the
law justified what Captain Gaines did. [Here he read
Graydon's Digest of the Laws.] The words are such
as might have fairly induced the judge and Captain
Games to have acted as they did. The words are ex-
tremely broad, and comprehensive enough to cover this
very case. It is not certain, but it is at least extremely
questionable whether the law did not authome what
they did. But whether it did or not, is not material.
General Wilkinson and Captain Gaines are two distinct
men ; and General Wilkinson is not bound to answer for
the offenses or errors of another man.

Mr. Randolph then skips to Judge Hall ; and hia
judicial outrage is repeatedly charged to General Wilkin-
son. Why, sir, there was a misunderstanding between



MOTION FOR AN ATTACHMENT. 317

them. The judge acted at the instance of Mr. Graham,
and not at that of General Wilkinson, who therefore can
not be answerable for it. After proving this error or
judicial outrage, as it is called, of the judge, they ought
to show a connection between them to have existed be-
fore. But, sir, Mr. Randolph discovers a very important
secret. He says that the act of congress compels the
removal of the party accused and the removal of the
witnesses together ; that in giving power to the judge to
remove the witnesses, it requires him at the same time to
remove the party accused ; that both must be removed
together. But if the party accused had been removed be-
fore, ought not the witnesses to be removed afterwards?
Because it does not come within the letter of the law,
would he not have a right to send on the witnesses? I
doubt whether that would be a correct interpretation
of the act of congress. It can not be reasonably sup-
posed, that as the removal of the witnesses was as much
intended as that of the party accused ; that ' if the
accused were removed first, the witnesses should not 'be
removed afterwards. I should suppose that the judge
might remove both at different times; that if he sent on
the accused before (from necessity or convenience), he
might send on the witnesses afterwards. But whether
the judge committed an outrage or not, is unimportant
to General Wilkinson. He was not bound to attend on
every step which Judge Hall had taken ; and if the
judge may send on the witnesses without the party
accused, it is to be intended, that he has fully executed
the law, until the contrary appear in a cause of his own,
in which he is a party, called on to account for his con-
duct, and in which he shall have an opportunity to vin-
dicate himself. But whether his construction of the law
be correct or not, is immaterial. Wilkinson is not amen-
able to this or any court, for any act of Judge Hall, or
any other officer.

But Mr.' Randolph has discovered a great secret, which
no body else has discovered ; which the most astute
men in the commonwealth could not find out : " That
it was a military order which was given by Gaines to
Sergeant Dunbaugh, to remove Knox from jail to the
vessel ; " and this is thought a proof that the whole



3 i8 TRIAL OF AARON BURR.

was contrived by General Wilkinson ; and that the order
emanated from him. This is in the very teeth of the
evidence. Mr. Gaines being called on to say whether ho
had not. given it as a military order to. Dunbaugh, an-
swered explicitly in the negative ; that he had not given
it in that capacity. I saw the gentlemen looking atten-
tively at the order ; and I understood their motive to
be, to discover whether Gaines had signed it as captain ;
but when this order is seen, there is no signature of " cap-
tain " to it. He merely annexed his own name " Gaines,"
which proves that he was not acting in a military character.
It is very probable that if he had been acting in that char-
acter, he would have signed his military title. It is cus-
tomary, I believe, to sign military orders with the title or
rank of the officers who give them ; and an officer of his
rank would have signed the order as " captain." If there
were any doubt ^before, that doubt could no longer exist,
after Captain Gaines has declared before the court, not
only that he did not give a military order, but that he
never did act under General Wilkinson, in that whole
transaction. He was called on repeatedly to say, whether
he had not given the order to Dunbaugh as his sergeant,
and in his military character ; and he as often denied that
he had commanded him as sergeant (though he under-
stood him to be a sergeant), but because he had obtained
his promise before to execute the order ; and if he had
not, he would have got some other person to do it. Sir,
if Gaines had been acting as a captain, and signing as a
military commander, would he have proceeded to ask a
favor as he did? Would a gentleman who understood
his duty, have gone to him, and asked him, "Will you
be pleased to do so? " No, sir, he would have enjoine'd
it as his duty: and his not doing so, proves that he acted
in a civil capacity; and this disproves this conjecture
also.

But General Wilkinson is a great criminal, because he
consulted the attorney-general of the district.' The out-
cry which had been raised against this valuable citizen
and soldier, gave him sufficient warning, in order to avoid
reproach, never to do an act of this nature, but by the
advice of persons learned in the law. Of course, when
General Wilkinson, instead of giving advice himself,



MOTION FOR AN ATTACHMENT. 319

mentioned to those who were engaged to act for the pub-
lic that they should advise with the attorney-general
and another lawyer how to act ; it showed a disposition
to have nothing done but what the law warranted. Why
are their acts charged against him ? Is not this enough to
show, that the charge of violence and oppression is
wholly unfounded? If such conduct as this be censured,
I should suppose that it would be better to be silent, than
to give judicious and friendly advice. As Wilkinson was
not himselfa lawyer, he told those gentlemen, " Consult
the attorney-general, and other gentlemen learned in the
law, who will advise jrou how to act." Is it indeed crim-
inal to aid the government in a case where the govern-
ment and all Ameiica are interested ; and, instead of
giving advice to the persons called upon to act for the
public, to refer them to the best source of legal informa-
tion, the attorney-general, and another lawyer? I never
expected to hear such an objection urged against General
Wilkinson. This part of his conduct is strong and con-
clusive to show that he was determined that the laws of
his country should be the rule of his conduct. But it is
not to be wondered at, that sinking without evidence or
law to support them, they should catch at this straw, for
there is nothing but assertion and suspicion, all conjec-
ture and no proof.

But my friend Mr. Randolph, forgetting that he was
addressing this honorable court, and feeling as he does
, sometimes when he addresses gentlemen ill informed
about the laws of their country, endeavors to excite
sympathy, and tells you without proving it that General
Wilkinson threw him (Knox) into a ship ; that he was
torn from his family and friends and transported hither.
But he forgets the facts. What family had he in New
Orleans, and how long had he been there? He stated
that he went with Colonel Tyler down the river. [Here
Mr. Mac Rae repeated the substance of Mr. Knox's own
testimony relative to his going down the riyer to New
Orleans and staying there.] You will observe, sir, that I
am only .stating what he himself said yesterday. He was
dragged away from his country, and transported-. What
country? He only stayed two short months at New Or.
leans. But, alas! alas! He has suffered all these dreadfu;



320 TRIAL OF AARON BURR.

calamities. This is the melancholy statement made to
help them out, but all without proof. We fear not its
effects. But, sir, General Wilkinson is a curious sort of
a man. He sometimes uses all the blandishments of a
courtier; sometimes he is the most cruel savage that
ever existed. Sometimes he talks of free-masonry ; and
all by fits and starts. By fits he is very kind ; and by
fits very cruel. But what evidence is there to prove all
this? Has Knox said that General Wilkinson treated
him cruelly? Does Mr. Graham say so? Np, sir. Was,
he maltreated on shore or on board ? The ship's provi-
sions were very good, and he was treated on board like
other people. Has Captain Gaines said that he treated
him very cruelly? Where did Mr. Randolph find ttys
evidence ? I hope he misunderstood the witnesses. Your
honors, who have listened patiently to the testimony,
know that these are only bold conjectures. Well, then,
after going through all these conjectures, and refuting
them, we come to another; that Wilkinson put him on
board, transported him, and brought him to Richmond ;
and this conjecture is equally destitute of proof. These
acts ought to be proved, before gentlemen indulge in
this freedom of speaking to the court of violence,
oppression, and tyranny. I do not wish to tire the court
by a recapitulation of all the evidence, but I will briefly
repeat the principal facts to show that General Wilkinson
had no agency in them. How was Knox first taken in
custody? Was it by General Wilkinson ? No; by the
sheriff at New Orleans. Before whom was he taken ?
Before Judge Hall ; a man who, we are told, was at vari-
ance with him. By whom was he committed ? By a
warrant from the same Judge Hall, executed by Captain
Gaines, in his civil capacity. Was this done by the direc-
tion of General Wilkinson? There is no evidence what-
ever of this fact. By whose orders was he carried on
board the vessel ? By the same deputy-marshal's request to
Sergeant Dunbaugh. By whom was he brought to Norfolk ?
By Captain Gaines, who has the honesty to confess that
he did it. Is it sense, or law, to attach General Wilkin-
son for an act which another confesses he has done, with-
out having consulted General Wilkinson on the subject?
But it is a most important object to affect General Wil-



MOTION FOR AN ATTACHMENT. 321

kinson ; because he is summoned as a witness against the
prisoner. It has been often said by the counsel of the ac-
cused that he is a most important witness ; and if the course
pursued by those gentlemen can justify conjectures on
our part, we may perceive that they think him an all-im- '
portant witness: for there is no step taken without some
obloquy cast on this respectable man. It was rumored
all over this town, that he would never dare to come to
it : that he would tremble to appear before Aaron Burr.
This soldier and patriot has shown that he can confront
Aaron Burr or any other man. The report before, and
the proceedings had against him since his arrival, have
but one object : and that is to excite suspicions against
his character. From the delay in his coming, even hon-
est men began to think that perhaps there was some
truth in what was said against him. But now that he
has come, and that this cloud of prejudice has been dissi-
pated, another must be conjured up. Not content with
attacking him for his own acts, they attack him for the
acts of others, in which he had no agency or concern.
Does not the court see the object of attacking General
Wilkinson? Has he done anything to obstruct the ad-
ministration of justice? Does the court believe that the
gentlemen themselves believe, that he has done any act
to obstruct the administration o.f justice? His great
crime, forsooth, is, that* he did presume to advise with
proper and well-informed persons, in order to make the
law his guide, in endeavoring to procure material evidence
for his country, in a case deeply affecting its interest ;
and for this high sin, he is charged with obstructing the
administration of justice. Whether he has done so or
not, the court will decide. I am confident they will de-
cide fairly and correctly.

The court is entitled to admiration for having so very
patiently heard all the arguments which have been de-
livered. It is right to hear everything that can be said
on both sides of every question brought before the court.
I wish it to be known, let the event be what it may, that
there never was a case in which there was less of perse-
cution, than this case against Aaron Burr. He has had
privileges that never were extended to any other man.
I rejoice that he has had those privileges : and we wish
26



322 TRIAL OF AARON B URR

it to be known, that it is our desire, that he may continue
to have the benefit of all the privileges to which he can
possibly be entitled ; because it will completely repel the
unjust imputation of persecution.

Sir, shall I add anything more ? Is it necessary? But
let me ask, why has the prisoner made this motion ?
Has he taken out a subpoena, that General Wilkinson or
any other person has prevented from being served ? Has
any witness summoned for him, been prevented from at-
tending? Justice has been strangely obstructed in this
case ; not by stopping witnesses, but by bringing hither a
man who has been with Aaron Burr, and appeared to be
a material witness. There are many motives for believ-
ing, that this man was an important witness. The court
will recollect what he has already said. He was with the
accused, and was, from his situation, one of those to whom
the accused might have communicated some of his projects.
It has been said that there was no evidence of Knox's
materiality, though General Wilkinson made an affidavit
to that effect. The information given by Knox himself,
and the circumstances of the case, justified that affidavit ;
and in my conscience I believe him to be material, and
that when on his oath hereafter, on the trial, he will give
material testimony, if he disclose all he knows.

Mr. Randolph may move for attachments to- confine
all the people in jail, in defense of Aaron Burr, while lie
walks the streets unmolested. I do not know how many
motions are to be made, if this motion succeed ; and
they have already apprised us, that they had several
others to make. The next motion, I suppose, will be
against Mr. Perkins for taking up Aaron Burr. Even for
such a motion, there would be more ground than for that
now before the court.

I hope, sir, that for the length of time that I have tres-
passed on the patience of the court, I may be excused :
and that I may be also excused, if, by any inadvertent
expression, I have wounded the feelings of any gentle-
man ; which was far from being my intention. I merely
obeyed the impulse of duty, and I cheerfully submit the
the case to the court.

Mr. Benjamin Botts then addressed the court as fol-
lows :



MOTION FOR AN ATTACHMENT. 323

The charge, on which our motion is founded is, that il-
legal means, invading the privilege of witnesses, tending
to the corruption of evidence, and materially to affect the
justice and dignity of the court, in the present prosecu-
tion, have been practiced by James Wilkinson, within the
jurisdiction of this court, so as to subject him to process
of contempt.

The first description of these illegal means, consisted
in rifling the post-offices, and the seizure of private papers,
upon searches, some of which are attempted to be used
against Mr. Burr ; and others are believed to have de-
prived him of the means of preparing for his defense,
through the mail. These acts of oppression would,
in England, have subjected any man to the heaviest
pains and penalties of the law. In the time of Lord
Camden, that great supporter of the rights of the sub-
ject against the assumptions of power, upon solemn
argument, declared that such seizures violated the
first pinciples of social union, and that the law of Eng-
land admitted no pretext of state necessity, to justify
acts so subversive of the dearest rights of the people.
He enumerated the multiplied abuses to which it had
led, and clearly proved that the power was utterly
incompatible with the exemption of the accused from
giving evidence against himself, and with those privileges
which Magna Charta had secured. The constitution ot
the United States provides against searches upon war-
rants : but the present case reaches beyond the evil to which
the convention looked. Mr. Wilkinson thought the form
of a warrant unnecessary. The act of congress inflicts
high pains and penalties for taking or breaking a letter,
after it has been put into the post-office. The postmas-
ters, and all other agents in the establishment, are sub-
ject to punishment for violating the mail ; no exception
is made in cases of insurrection, rebellion, or invasion ;
though assuredly these events must have been within the
view of the national legislature, as possible ones. Private
property and commerce, the innocent and the guilty, \\\\\
be at the mercy of principal and deputy plunderers, as
long as the practice obtains. I never can reflect on this
subject, without feeling strong emotions. I can not
forbear again to remind you of the part acted by the



324 TRIAL OF AARON BURR.

prosecutor when I first introduced this subject to the
court the other day. He complained that I should in-
sinuate the perpetration of high crimes like these, with-
out proof. His honest bosom seemed to swell with in-
dignation at the injustice I was doing. I felt the impro-
priety of making such heavy charges, without the ex-
hibition of testimony, and called for proof. Instantly
the scene was changed. The man was lost in the lawyer.
What a minute before was a crime, then became a sub-
ject of eulogy. The second class of illegal means
practiced by General Wilkinson, we contend, consisted
in attempts to. extort and inveigle partial te\stimony
against Mr. Burr.

There are two characters of craft in this branch of his
misdeeds. The one acts upon fear in all cases; the
other generally on hope. We see this man in all his
power and splendor, inviting an obscure stranger to his
quarters ; he proposes several questions. Knox shows
reluctance in answering them ; he then tenders Knox his
service, his influence, patronage, and finally one hundred
or one hundred and fifty dollars. Finding all these un-
availing, he resorts to the influence of terrors. He is
interrogated by Hall, who threatens imprisonment and
transportation, in case of disobedience. A list of
printed interrogatories is exhibited, antl Knox is re-
quired to submit to examination on them.

This evil and corrupting practice of affidavits is but
little understood. My friend Mr. Wirt stigmatized them
justly, the other day, as tending to the worst of pur-
poses, always containing the language and the coloring
of a biased draftsman, and never telling the whole
truth. When a witness is examined ex parte by counsel,
everything that makes for his employer is carefully
culled out and committed to writing, without the dross
of what may be for his adversary's advantage. If a wit-
ness should know much for the accused, and nothing for
the government, he would be passed by of course.
These affidavits are sent to the attorney. He is armed
now with a great bundle of them. So many daggers
put to the bosoms of the witnesses, as they successively
appear, could not be more inauspicious to truth. Should
a witness be cross-examined, to give a different com-



MO TION FOR AN ATT A CHMENT. 3 2 5

plexion to a fact contained in his affidavit, the terrifying
writing needs only to be held up at the bar, and the
naked exhibition of such spectacle eloquently proclaims
his destiny, if he vary in the least from that fatal paper.
He is told, " If you go a step out of this paper, perjury
is the consequence, and your ears shall come off." The
important right of cross-examination is useless in
such a case. To be confronted by the accused, is
nothing, when the witness is confronted by his affi-
davit.

The other means practiced by General Wilkinson ap-
pertain to the privilege of the witness, and the liberty
of the citizen. This work of unprovoked tyranny, be-
gan on a Sunday. Under color of law, Knox was im-
prisoned and transported for the crimes of having eyes
so see, and ears to hear. He was not permitted to ob-
tain from his lodgings the clothing necessary to cleanli-
ness and health. The sagacious and patriotic judge had
as much reason to drag Wilkinson from the pinnacle of
his greatness and pomposity, and to commit and trans-
port him after he had hung back, until " his friends
trembled for his fame," as Mr. Knox.

The habeas corpus act in England, was produced
by the unlawful transportation of offenders for trial.
That measure has been marked by all the great measures
of the resisting colonies and of the old Congress, as one
of the most usual and most grievous concomitants of
arbitrary authority. The legislature of Massachusetts, in



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 31 of 64)