Aaron Burr.

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

. (page 32 of 64)
Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 32 of 64)
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1769, were excited to what were said in the mother coun-
try to be seditious resolutions, against the use of such an
expedient by parliamentary authority. The articles of
confederation ; the various addresses of Congress to the'
people of England, Ireland, and to the Canadians ; the
petitions to the throne, and the remonstrances to the
parliament ; the Declaration of Independence, and the
preamble to the constitution of Virginia ; all enumerated
among the acts of royal misrule, justifying revolt, the
oppressive one of transporting offenders for trial. The
nation waded through blood an.d slaughter, to rescue us
from this power ; but now it is exercised as an act of
course, not indeed in all cases, upon a criminal by legis-
^ative authority, but upon a witness at the pleasure of a



326 TRIAL OF AARON BURR.

military chief, whose delinquency in attendance was real,
while Knox's was imaginary.

But why all this complaint about poor Knox? He is
nothing but a poverty-stricken, obscure individual. The
vague and whimsical phantasy of equality, that kindled
enthusiasm in former times, is now too ridiculous for our
cares. The abuses of Knox are of no moment. The sun
rises and sets as usual. GeneraL Wilkinson takes his
coffee in the morning, and reposes himself on his sofa in
the evening. We are happy and content at our homes,
and things in general go on as before. It is a morti-
fying thought, that the enemies of our happy form of
government, may now triumph in the acquiescent sur-
render of the rights which it was instituted to secure.
They may boast that liberty has been scourged with
relentless fury and perseverance ; that the revolution has
been shorn of the brightest of its beams, with the hear-
tiest applauses of those in whose presence the offenses
of a tyrant have been presented for punishment. I feel
more pain and solicitude on this subject as a friend to
the present administration, than I do as counsel for Mr.
Burr. I could humble myself to beg of the gentlemen
in the prosecution to save the glory of our executive
from the tarnish of praise and impunity to General Wilkin-
son. If they will not grant my prayer, I must address it
to you, sir. I hope and believe, that the chief magistrate
of our country is a stranger to what has passed and is pass-
ing here. His generous, manly soul would surely disdain
all the petty larceny means which have been used to
kidnap testimony, betray confidence, and induce perju-
ries ; it would equally revolt at the wanton violation of
the most sacred of our laws and chartered rights. Such
a system can not characterize the noblest administration
that ever existed.

Let but this daring act pass unpunished, and we cease
to be what we were. If a citizen could be imprisoned
for three days, he may for three years. If he could be
transported to Richmond, he may to India. If one
man can be so imprisoned and transported, so may a
thousand.

A witness was asked whether Knox had not his liberty
on the voyage ? Yes, was the answer. How precious



f MOTION FOR AN ATTACHMENT. 327

the boon ! He was at perfect liberty to jump into the
sea whenever he pleased !

The attempt to make Mr. Gaines the scape-goat of
this confederacy (he deserves a better fate) is only
equalled by the atrocity of the confederacy itself.

We find that Mr. Wilkinson was inquisitor and transpor-
ter-general, without scruple or disguise, until he was about
to come to the United States. To borrow an idea from
Mr. Mac Rae, the noise that 'had been made about his
misdeeds, had taught him cunning. In the courts of
New Orleans, he could make the tribunal bow and trem-
ble, by a parade of magnificent nonsense. To avoid his
own humiliation in a freer climate, this farce, in which a
mock judge and a military-civil-sea-marshal, without
oath, bond or compensation were to perform their parts,
was devised. It is too clear that Wilkinson was the wire-
worker behind the curtain, by which the wicked catering
and gambols of mimic magistracy were played. I pity the
condition of a subordinate military officer bound to passive
obedience. Mr. Gaines was a worthy, duped young man.
I was fond of the honest appearance he made. The
candor of his testimony made it more a subject of grief
and indignation, that the contrivance should be to put
the whole responsibility on him. The introduction of
the lawyer, to complicate the disguise, is Another feature
in the picture. I hope, for the honor of the profession,
that there is some mistake as to the ^>art he acted.
Wilkinson is to be discerned through every part of the
cobweb. He makes the affidavit ; he sets the lawyer to
work ; his military officer becomes a deputy of the mar-
shal to leave his situation without the leave of the com-
mander-in-chief ; a sergeant is the deputy of that deputy ;
the captain on board -is under the direction of the gen-
eral ; to his care Captain Gaines commits Knox through
the sergeant; the military purse yields the money given
to the witness ; the vessel taken up by Wilkinson conveys
him, and 'Mr. Gaines owns, that if the general on the
passage had directed Knox to be put in irons, the order
would have been instantly obeyed. What ! a deputy
marshal, as such, to obey the orders of a military com-
mander ! The insidious attempt at Hampton Roads,
first involuntarily made by Mr. Gaines, and afterwards



328 TRIAL OF AARON BURR.

repeated by General Wilkinson, to seduce an acknowl-
edgment that the civil authority had transported the
witness, may be connected with the other proofs. But
the demand, by General Wilkinson, of Knox's parol ot
honor to come to Richmond as the condition of his en-
largement, would be decisive on the present question, if
it admitted of doubt.

But you are gravely asked by Mr. Mac Rae to pro-
nounce that General Wilkinson deserves well of his
country for all these his patriotic acts. What, in other
times, and in other places, would subject a man to be
suspended between the heavens and the earth, from
whence his spirit should flee forever, now calls forth the
highest panegyric. I heard a compliment like the pres-
ent from the counsel, when General Wilkinson was here
on yesterday. I looked upon him and witnessed a smile,
when the occasion was better adapted to a groan. It was
a smile of the ghastly kind. It seemed to be of that con-
vulsive sort which distorts the face of the dying. Per-
haps General Wilkinson took a retrospect and felt the
compliment to be a reproach. Thus prejudice leads gen-
tlemen to praise acts of atrocity. This subject has been
treated with singular levity by the gentlemen in the pros-
ecution. They have not ventured to justify the com-
mitment of Knox. The furthest that Mr. Mac Rae
ventured, was' to risk the supposition that the act of
congress was of doubtful application, and might possibly
apply. He in this tacitly yields, that there is no justify-
ing the conduct pursued in the commitment. The gen-
tleman who spoke last, reminds us, that " the sins of the
fathers ought not to be visited on the children." I say
then, that the sins of the principals ought not to be
visited on the subalterns.

Mr. Mac Rae concludes with reminding the court, that
Mr. Burr had enjoyed privileges that no one under pros-
ecution before him had ever enjoyed. He said, too, that
you were perfectly right to hear us on this question. I
submit to him whether the first remark were just or re-
spectful to the court ? In the latter point he differs from
another gentleman on the same side, who has struggled
much to prevent us from addressing you.

It only now remains for me to prove that your juris-



GRAND JURY INDICT BURR. 329

diction is commensurate with our purpose. The I4th
section of the judicial act authorizes the court to issue
all writs not specially authorized, for the more perfect
exercise of the powers vested in it. The power of com-
pelling attendance and securing privilege, can not be
exercised in perfection without a power of attaching for
contempts in the one case or the other. The district
courts of Virginia constantly exercise tnis right of over-
looking the purity of the streams of their justice, through
all its branchings, without the district as well as within.
The right of attachment overreaching the limits of the
state, must result as incidental to the emanation of the
subpoena to other states. But the rioting ofi lawless
power continued from New Orleans to Richmond.
When it entered on the seas it was within the regular
limits of your authority.

In a view to the privilege of the witness this motion
must be sustained, if we be deceived in all our other
grounds. What means the privilege, unless it be, that
he shall have protection from abuse? Is it to assist in
this privilege to imprison him ? Is the privilege to
exclude him from all his rights, and put him at the
mercy of land and sea jailers? If this be the enviable
advantage of privilege, General Wilkinson will deserve
well of his country for assisting to maintain it.

Knox was summoned before any of this violence was
used towards him. From the moment that he was sum-
moned, he was under your protection. The naked ser-
vice of a summons must have proved that your powers
reached not beyond a summons until there were default.
It is absurd to suppose, that what this court could
not do for itself, a magistrate, no way connected with
it, could unasked and officiously do for it.

I refer the court, without comment, to Supplement
to Viner's Abridgment, 225, and 3 Hawkins, 275, on the
subject of contempts of the court.

When Mr. Botts was speaking [being about two
o'clock] the grand jury entered, and Mr. Randolph, the
foreman, addressed the court, and stated that they had
agreed upon several indictments, which he handed in at
the clerk's table. The clerk read the endorsements
upon them in the following terms :



330 TRIAL OF AARON BURR.

An indictment against Aaron Burr for treason "A
true bill."

An indictment against Aaron Burr for a misdemeanor
"A true bill."

An indictment against Herman Blannerhasset for trea-
son " A true bill."

An indictment against Herman Blannerhasset for a
misdemeanor " A true bill."

Mr, Randolph then continued : May it please the
court, Although the grand jury have returned these
bills, they have still other subjects for their considera-
tion, and have adjourned themselves to meet -to-morrow
at ten o'clock.

After "Mr. Botts concluded his argument, Mr. Burr ad-
dressed the court, and observed, that as bills had been
found against him, it was probable the public pros-
ecutor would move for his commitment ; he would, how-
ever, suggest two ideas for the consideration of the
court ; the one was, that it was within their discretion
to bail in certain cases, even when the punishment was
death ; and the other was, that it was expedient for the
court to exercise their discretion in this instance, as he
should prove, that the indictment against him had been
obtained by perjury.

Mr. Hay moved for the commitment of Aaron Burr.
He stated that if the court had the power to bail by
the 33rd section of the judicial act, it was only to
be exercised according to their sound discretion ; and
that the prisoner was not to demand bail as matter of
right, because the court was authorized to grant it, but
by his making out an adequate case, and showing that
he was entitled to it. He quoted 4 Blackstone's Com-
mentaries, p. 298, to prove that this discretion ought to
be deliberately and cautiously exercised.

Mr. Martin. The counsel for the prosecution have,
then, admitted the right of the court to give bail, accor-
ding to its discretion.

Mr. Mac Rae did not understand from the judicial
act, that the discretion was to be exercised at this stage
of the business, but only at the time of making thj
arrest.

Mr. Martin. I can hardly suppose that this court has



MOTION TO COMMIT. 331

less power than the court of king's bench in England,
which certainly possesses this authority, according to 2
Hale, pp. 129, 134.

Mr. Wirt was extremely solicitous to do anything
compatible with his duties, which might soften the situ-
ation of the prisoner, and if the court had the discre-
tion, he did not wish them to restrict it ; but he did not
perceive the analogy which had been drawn between
this court and the court of king's bench. The powers
of that court grew out of the common law of England,
whereas the powers of this court were defined by a stat-
ute of our country. What says the 33rd section of the
judicial act ? " Upon all arrests in criminal cases, bail
shall be admitted ; except where the punishment may
be death, in which case it shall not be admitted but by
the supreme or a circuit court, or by a justice of the su-
preme court, or a judge of a district court, who shall ex-
ercise their discretion therein, regarding the nature and
circumstances of the offense, and of the evidence and the
usages of law." Is not this inquiry by the court stopped,
said Mr. Wirt ; is not the evidence and testimony stopped,
when it is now locked up by the finding of the grand
jury? Would it be right for this court to go into all the
merits of the case, which this clause evidently requires,
before the court can exercise this discretion ? Will the
court go into the investigation oj" the evidence, and thus
throw itself into collision with the grand jury? It is ob-
vious from these considerations, as well as from the
words of the law, that such a discretion does not exist
at this stage of the business, but only at the time of arrest.

Mr. Wickham. The counsel for the United States ex-
press their readiness to accommodate Mr. Burr, yet act
otherwise. If the court of king's bench possess this au-
thority, shall it be contended that this court is without
it ? Shall it be said that the liberties of the people of
this country are not as well secured as those of Great
Britain ? that a British subject has greater privileges than
an American citizen? It is said, however, that this court
grows not out of the common law, but out of our stat-
utes ; but will it be said, that, when this court has once
been constituted, it does not proceed according to the
established jurisprudence ; that is, the common law.



332 TRIAL OF AARON BURR.

There can be no question but that a state district court
can bail, even in capital cases. Will this court, it is asked,
place itself in opposition to the grand jury? No, sir, it
will not : and Mr. Wirt certainly forgets that the court is
to hear both sides of the evidence; whereas, the grand
jury heard one side only, and indeed a part only of that
side ; for had the United States attorney sent up all the
witnesses, whose names appear at the foot of the indict-
ment, very different would have been the result, of their
inquiries. The ground which we take is this; that the
grand jury have found their bill upon the testimony of a
perjured witness; and if the court were to bail Mr. Burr,
would it not be justly inferred, that they had not set
themselves up in opposition to the grand jury, but that
they had been furnished with lights, which had been de-
nied to that jury? " Upon arrests," signifies in all cases,
where there has been an arrest. The case in Dallas comes
fully up to the point.

Mr. Botts said, that if the common law did not enable
the court to bail, it did not enable them to commit.

Chief Justice. Mr. Martin, have you any precedent,
where a court has bailed for treason, after the finding of
a grand jury, on either of those grounds; that the testi-
mony laid before the grand jury had been impeached for
perjury, or that other testimony had been laid before the
court, which had not been in the possession of the grand
jury?

Mr. Martin said, that he had not anticipated this case,
and had not, therefore, prepared his authorities ; but he
had no doubt that such existed.

Mr. Burr. Two distinct questions have been blended
in this discussion, which ought to have been kept separ-
ate. First, Whether this court have the right to bail
according to its discretion ; and secondly, Whether it
were expedient to exercise its right in the present in-
stance ? If the court have no discretion, it is unnecessary
to produce evidence. That question*ought, therefore, to
be previously settled.

Mr. Hay observed, .that when he first addressed the
court, he was of opinion, that the circuit court had this
power, having been misled by a very transient conversa-
tion with the chief justice, on the first examination of



MOTION TO COMMIT. 333

Mr. Burr; that he had, however, considered this subject
more maturely, and the more he thought of it, the more
he was convinced that Aaron 'Burr was not privileged to
demand bail. That he would feel no regret if the court
could bail, but he thought they could not ; that it was in-
cumbent on the prisoner to show the law which author-
ized his being bailed ; that the question was to be decid-
ed by the common law, by the acts of Congress, or by
the acts of Virginia. It could not derive the authority
from the common law, because this court is of a recent
origin, deriving its power not only from a late law, but a
lately created government ; and it has no authority but
from an established law. Does, then (said Mr. Hay), the
law which established this court, expressly convey this
power ? [Here he read the 33rd section of the judicial
act.] Now, how are the court to attend to the nature
and circumstances of the case and of the evidence ? Will
they require all the evidence to be before them, which
has just occupied the attention of the grand jury for
seven or eight days ? Mr. Wirt's argument on this point
is conclusive. The law too is applicable to a prisoner
only at the time of his arrest, and not of an indictment
being found against him ; in the last case, the situation
of the accused becomes still more precarious ; the dan-
ger which he apprehends, comes nearer and nearer, and
the temptation to violate his recognizance, becomes much
greater than at the earlier steps of the prosecution. [Mr.
Hay then referred to the case of Bedinger v. the Com-
monwealth of Virginia, decided by the court of appeals,
where that court refused to review the errors of a dis-
trict court, in criminal cases, because no act of assembly
gave them the power.]

No man will contend that the common law is in force
in the courts of the United States. As soon might you
assert the validity of the laws of the Cape of Good
Hope or of Turkey. It was, therefore, ridiculous to
compare the organization of the court of king's bench
with that of the present court. As to the complaint of
Mr. Wickham, that by this doctrine an American citi-
zen would stand on worse grounds than a British sub-
ject, it is unavailing. Perhaps courts of justice would
even be more disposed to bail for treason under such a



334 TRIAL OF AARON BURR

government as that of Great Britain, than under our
own, where the power of the government falls so rarely
and so lightly upon thepeo'ple. Were even the common
law in force in the United States, it would have no rela-
tion to the organization of our courts.

The power of bailing is neither derived from the com-
mon law, nor the act of congress ; nor is it deducible
from the laws of Virginia. In cases affecting life, the
prisoner is not entitled to bail by our laws. Rev.
Code, pp. 63,83, 411. In the two former pages, two
judges of the general court have the power ; but it
can not be inferred that this court therefore has it.

Mr. Wirt. I have stated that the powers of the
caurt of king's bench are not applicable to this case,
because that court is the creature of the common law,
whose powers are of ancient date, and have been grow-
ing up from time to time ; whereas this court is recent,
and its powers fixed and defined by law. There is
another great difference. The powers of the court of
king's bench take their origin in a fiction. It is sup-
posed to be held coram ipso rege ! In its origin, the
king himself sat there, and he is still supposed to sit.
Treason was a crime against his dignity ; he might bail
for it ; and the same power belongs to the judges who
represent his person. But how is it with us? Treason
is an offense against the people of this country. And
have the people ever sat here for the administration of
justice? Are the judges of this court invested with the
powers of the people ? But on the supposition that
this fiction does exist, is not the power of bailing re-
moved by a positive law ? Does not the act of congress
expressly take it from the court ? By the laws of Vir-
ginia, in cases of offenses punishable in life and limb,
bail is only admitted where there is but a light suspicion
of guilt. If some of the witnesses be perjured, that
does not prove that the indictment is found on their evi-
dence. There has never been an instance of bailing
after a true bill found. The act of congress enables the
court to bail only on arrests, after examination of the
circumstances, the evidence and law of the case. Can
you bail, therefore, on a partial view of the evidence ?

Mr. Wickham. Two indictments have been found for



MOTION TO COMMIT. 335

treason ; one against Mr. Burr, and the other against
Blannerhasset. If the latter were now to come into
court, he would be bailed, according to Mr. Wirt's -dis-
tinction, because not previously arrested ; whereas
Mr. Burr would be divested of the very same priv-
ilege, though he was indicted for the very same crime.

Mr. Hay said that the judges of the general court in
Virginia have a copy of the record, with evidence in-
cluded, before them, to enable them to judge whether
they ought to bail in certain cases ; but that this court,
if they had the power, could not let to bail without ex-
amining all the witnesses.

Mr. Randolph expatiated- on this subject at consider-
able length, and with great ingenuity. He particularly
contended, that the power of admitting to bail was inci-
dent to every court ; that the power was implied in the
term " court." That it was as absolutely necessary for
the happiness of the people, that courts should possess
this power, as it was, that they should have the right of
committing persons accused, for their safe keeping, in order
to be regularly tried. That the common law must be
received to a certain extent ; that every judge and court
had the right to bail persons indicted before them ; and
that it would be an extreme hardship to confine in a dun-
geon, a person who could clearly prove that he was not
guilty of the offense charged against him. That the
counsel for the prosecution occasioned this lengthy dis-
cussion by moving to commit Mr. Burr; and that time
was of no consequence compared to liberty.

Mr. Martin protested against the ingenious fiction of
Mr. Wirt, as he called it. He challenged him to name
any king, from the days of King Arthur to the present
time, who either did, or would, sit in the court of king's
bench. That the act of congress only defined the
powers of individual magistrates out of court, but took
away no power from them as a court. That bailing was
incident to commitment, and co-extensive with the jur-
isdiction of the court over crimes. '

After a considerable desultory discussion on this point,
the Chief Justice declared that the act of congress, in
express terms, enabled the court to bail a prisoner ar-
rested for treason. That there was no distinction



336 TRIAL OF AARON BURR.

between treason and other criminal cases, as to the power
to bail upon arrests; but, that an arrest might be after a
finding by a grand jury ; in which case, the finding of
the grand jury would be the evidence on which the
court would have to judge whether the party arrested
ought to be bailed. That they were to exercise their
discretion " according to the nature and circumstances of
the offense, and of the evidence and usages of law*"
That "usages of law" were to be found in the common
law, and the practice of courts; but that he doubted ex-
tremely, whether the court had the right to bail any
person, after an indictment for treason had been found
against him by a grand jury; especially in a case like the
present, where the government was ready with its testi-
mony, and there was no extraordinary circumstance (as
an alibi clearly proved) to repel the effect of the finding
of the jury, and that he wished authorities produced to
satisfy the court that it had the power.

Mr. Burr said that if the court thought it had the
power to bail in any case after a bill found, it would be
then necessary to show that it ought to exercise its dis-
cretion in this instance. That the finding of the jury



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 32 of 64)