Aaron Burr.

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

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was founded on the testimony of a perjured witness.
That General Tupper would prove, that there had been
no such resistance to his authority as had been stated by
that witness ; and that though this circumstance had
been mentioned to the prosecutor by General Tupper,
he had not been sent up to the grand jury.

Mr. Mac- Rae. General Tupper has made no such
communication to me.

Mr. Hay. Though I had a conversation with General
Tupper, I do not exactly recollect what it was. The
truth is, that I have carefully avoided conversing with
the witnesses of the United States (except General
Wilkinson). General Tupper made application to me
for permission to go away; but I said, that I would, for
no consideration, submit to the imputation of consent-
ing to the departure of any of the witnesses. He was
not sent up to the grand jury, because he was not con-
sidered as a material witness.

Mr. Wirt. He has made no such communication to
me ; and I take it upon me to assert, that the resistance



MOTION TO COMMIT. 337

to General Tupper was not the treason on which the in-
dictment has been found.

Mr. Wickham. Suppose a man were indicted for mur-
der, committed at some distance from this city, and a
grand jury had found a true bill against him ; but it
could be proved, by every man in the city, that he was
at the moment -when the offense was said to have been
committed, walking in the streets: would such a finding
by the grand jury preclude a court from bailing him ?
The constructive murder in that case is of the same
stamp as the constructive treason of Mr. Burr in this
case, who is indicted for an act said to be done in Blan-
nerhasset's island, where he was said to be present, al-
though he was at a considerable distance from the
place.

Mr. Wirt. Why should evidence be produced to
prove the perjury of a witness? why look to the indict-
ment itself ^Dr a proof of its own fallacy, when the
requisitions of the court have not yet been satisfied ?
The court wanted authorities to prove, that in such a
case as this, it had a discretionary right to bail " accord-
ing to the usages of law."

Mr. Burr wished to know, whether the court would go
into testimony extrinsic to the indictment.

The Chief Justice had never known a case similar to
the present, where such an examination had taken place.

Mr. Martin would produce authorities, if he had time
allowed to him.

Mr. Randolph drew an analogy between this and the
case of a coroner's inquest.

Mr Wirt said there was no apposite analogy between
them.

The Chief Justice insisted upon the necessity of pro-
ducing adjudged cases, to prove that the court could bail
a party, against whom an indictment had been found.

Mr. Burr did not wish to, protract the session of the
court to suit his own personal convenience. There was
no time at present to look out for authorities.

The Chief Justice observed, that he was then under
the necessity of committing Mr. Burr.

Mr. Burr stated, that he was willing to be committed,
but hoped that the court had not forestalled its opinion.

22



33 TRIAL OF AARON BURR.

Chttf Justice. I have only stated my present impres-
sions. This subject is open for argument hereafter. Mr*
Burr stands committed to the custody of the marshal.

He was accordingly conducted to the jail.

THURSDAY, June 25th, 1807.

After a writ of habeas corpus was granted to bring up
the body of Mr. Burr, General Andrew Jackson from
Tennessee, and sundry other witnesses were sworn, and
sent to the grand jury.

Mr. Hay addressed the court. We were reluctant the
other day to discuss this subject. (It is not a question ;
for it does not deserve to be so called.) We wished the
court to decide on the testimony ; but counsel would have
an argument. We have repeatedly proposed to them to
close the arguments. I thought, and still think, this
motion an obstruction to public justice, ^tvish to go on
with the business of the court, and this motion pre-
vents me. Gentlemen have determined to persevere ;
but they have not stated the object, they have not spec-
ified the act of which they complain. If they had stated
in their motion the fact said to be an obstruction of jus-
tice, the absurdity would have been apparent. By avoid-
ing a specification they get over the difficulty, and are
enabled to go at large on every topic for the public ear.
But a fair examination of facts will satisfy the court that
there is no foundation in law, nor justice, nor even in
policy for this motion.

Before I examine the merits of this motion, I can not
forbear to express my surprise, that it should be made
by the counsel for the prisoner. It is called a contempt
of the court. In what manner can any of the acts
charged, be tortured into a contempt of the court. Is
this motion made by order of the court itself? The court
would never have thought of it. Is it made by the Uni-
ted States, or their officers? No. Nor is it made by a
party injured. Burr can not justly say that he was in-
jured by bringing a witness to this place, who was one of
his own associates, and who quitted his wife, children,
home, and business, to join him.

What then can be their motive in makinsr this motion



MOTION FOR AN ATTACHMENT. 339

The solution is obvious. It is not with a view to clear
away obstructions of justice ; but to make an impression
on the public mind, that General Wilkinson, whose evi-
dence is important, was guilty of violence and injustice.
The motion itself is a contempt of the court, by obstruct-
ing public justice.

Chief Justice. Mr. Hay, the court will hear any mo-
tion which you may have to make, or which any other
gentleman may wish to make.

Mr. Hay. I cheerfully withdraw the remark, and to
save time, I will discuss this motion first. I will state as
briefly as I can, the evidence of the only witness intro-
duced in support of this motion to attach General Wil-
kinson, James Knox.

He says that General Wilkinson sent for him, con-
versed with him about Burr, and his plans, as he wished
him to be a witness at the expected trial. Knox com-
plained to him of the want of money to carry him home.
General Wilkinson offered him money. He knew, that
if Knox was summoned as a witness on the part of the
United States, he would be entitled to money for his at-
tendance. It is only a conjecture of Knox, that General
Wilkinson's motive for offering him money was to in-
duce him to be a witness. I think this conjecture in-
finitely more probable : that, knowing his evidence to be
material, and that he would be entitled to his expenses
for his attendance, which might be prevented by his want
of money, Wilkinson thought he might, very properly
and innocently, obviate that difficulty by advancing
money from the treasury of the United States, to the
amount that he would probably be entitled to. Knox
said, that he was afterwards arrested, and carried as he
understood, before Judge Hall; committed to prison,
and carried on board the schooner Revenge, by what he
conceived to be military authority ; that he answered
some questions, which, according to his own statement,
were artfully put ; but that he declined going through his
evidence before General Wilkinson : notwithstanding, he
is declared, in presence of this man, to be a military des-
pot, keeping the whole western world in awe and terror.
The witness himself expressly declares, that Wilkinson
never used threats nor promises to him ; and yet gentlemen



340 TRIAL OF AARON B URR.

have frequently misstated the notes, taken by General
Wilkinson, to be an affidavit extorted from him. Now,
sir, admit foi a moment, that this man was brought here
under a mistake of the law; admit more than he states,
that he was brought by military authority, and the orders
of General Wilkinson, and forcibly brought into this
court. Suppose merely, that the general thought, that
as the military commander he had a right to bring reluc-
tant witnesses to this country; and had brought Knox to
this court, because he knew him to be a material wit-
ness. I ask the court, whether this evidence, on princi-
ples of common sense, could justify the motion now be-
fore the court? This would bean illegal act, and for
which Knox might recover damages ; but certainly it
could not be called a contempt of the court, without a
perversion of terms, and confusion of ideas. It would
promote, rather than obstruct, justice. There is one spe-
cies of treatment which might be offered to a witness,
that might be called such a contempt. Suppose a wit-
ness were coming to this capital with a subpoena in
his pocket, which had been served on him to attend
and give testimony in this cause, and he were forcibly
prevented from coming to court, that would be a con-
tempt of the court. In that case, the streams of justice
would be interrupted, and the court ought to punish the
party guilty of such unjustifiable conduct ; and if the
court would punish an offender for stopping a witness
from coming to court, it would not act absurdly, blow hot
and cold at the same time ; and punish a person for bring-
ing a man to court to tell all he knew in this cause. If
to prevent a witness from attending the court, be a viola-
tion of private right, and a contempt of the court, for
which the offender ought to be punished, on principles
of common sense, an act diametrically opposite, can not
be the same offense. Admitting the conception of the
.vitness to be correct, that he was brought hither by mil-
itary authority proceeding from General Wilkinson, this
is, .conclusive to show, that it is not a contempt of the
court. Therefore, according to the testimony of the only
witness brought forward in support of this motion, and
allowing it the utmost latitude of construction, General
Wilkinson is not guilt)' of a contempt of the court, for



MOTION FOR AN ATTACHMENT. 341

which he ought to be att'ached, or for which even a rule
to show cause against it, should be granted.

But, sir, what is the real history of the conduct of
General Wilkinson ? Why, sir, the mountain of which
gentlemen have talked so much dwindles to a mouse ;
nay, more, it disappears ; not even a shadow is left behind.
The cause about which so much has been said, and by
means of which so much obloquy has been attempted to
be thrown on General Wilkinson, is this : Mr. Gaines was
requested, by the attorney-general of the United States,
to serve subpoenas on such witnesses as should be indi-
cated to him. General Wilkinson has the honor and
glory of being the man, by whom a dreadful explosion
was prevented. He knew facts and the particular state
of things better than any other man. The subpoenas
were, therefore, very properly transmitted to him, to be
filled up with the names of the witnesses. Mr. Gaines
did serve the subpoena on Knox, who said he was unwill-
ing to attend; and he served it on him, because he was
previously pointed put to him by General Wilkinson, to
whom Knox had made some disclosure. Though he had
not made a full disclosure, yet he had told enough to
show that he was a material witness. I have in my pos-
session the notes of his evidence, taken by General
Wilkinson, which, though neither sworn to nor signed,
would have been sufficient to show his materiality; as he
had come down the river with the party, and had some
opportunity of knowing their views and objects. With
a knowledge of this man's materiality, General Wilkinson
made an affidavit that he was a material witness for the
United States, and it was sent, we do not know by whom
(perhaps by a servant) ; it is certain he did not carry it
himself. I will make a single reflection in this place.
If General Wilkinson had been under the influence of
those diabolical designs which are ascribed to him, how
came it to pass that he intrusted this business to a man
with whom he was at variance? This evinces a great
deal of fairness and candor on his part. The judge issues
his precept to take this man up, requires a recognizance
of him ; he gives no security ; the judge deliberates on
the subject; examines the laws of his country (with the
lamination of which he was intrusted) ; gives his opin-



342 TRIAL OF AARON B URR.

ion, and expresses his extreme reluctance to act against
him. He refers to the clause of the act of congress in
question ; to the counsel who was present; and after all,
he said, that he thought it his duty to secure the atten-
dance of this man as a witness. He committed him, not
to military authority, but to the marshal. He issued his
warrant to the marshal of that district, and the marshal
authorized Mr. Gaines to act as his deputy; and here is
the warrant (showing it) which authorized Mr. Gaines
to act as deputy marshal.

Mr. Botts denied that there was any order conferring
such an authority. [Mr. Gaines was then sent for.]

Mr. Mac Rae offered to prove the respectability of
Judge Hall, as he had been attacked ; and said he could
amply establish that he was a man of character and tal-
ents, and incapable of being used as a tool.

The Chief Justice said that nothing would be more
improper than to go into such proof; that his character
was not arraigned ; and that, therefore, a vindication of
it was unnecessary.

After a few desultory remarks, Mr. Botts said that he
had not attacked him except as to this business ; but his
opinion was that if a lawyer in Virginia had given such
an opinion, and acted as Judge Hall did in this trans-
action, his license ought to be revoked, but that he had
understood from the best authority, that he was a man
of unimpeachable character.

Mr. Hay. Gentlemen may do as they please with
Judge Hall. It is not my business to vindicate him ;
they may lay him down in dust and ashes. It can not
affect General Wilkinson, nor the question before the
court, unless they prove a connection between them. I
said that the judge had committed Knoxto the custody
of the deputy marshal ; then he directed the warrant
to the marshal requiring him to bring him to this place.
The marshal executes a deputation to Gaines, who arrests
him, puts him in custody, then puts him on board the
vessel, and brings him as a witness to Richmond.
General Wilkinson, so far from manifesting contempt of
the civil authority, was fearful that Gaines might do
wrong, and recommended to him to apply to the attor-
ney of the United States, and to other counsel to know



MOTION FOR AN ATTACHMENT. 343

how to proceed. I deem this a very important point,
because General Wilkinson had not the slightest expec-
tation, that he would be the subject of public animadver-
sion, or that Burr would be the public accuser for what he
was then doing. Therefore, his recommendation to
Gaines to apply to counsel, demonstrates the habitual
reverence of his mind for the constituted authorities of
his country. It is impossible that he could have done
so for the purpose of shielding himself from this attach-
ment ; for without inspiration from above, he never
could have guessed that such a motion as this would be
made. This conduct, in my mind, demonstrates, in the
clearest manner, that those imputations, that he is a
military, lordly, despotic character, and holds in con-
tempt the civil authority, are absolutely groundless.
How far General Wilkinson was justifiable in time of great
danger, when he was threatened by traitors without and
within, in acting as he did at New Orleans, or what he ought
to have done on that trying occasion, is a question not now
to be determined. I am inclined to believe (though I do
not certainly know) that the decision will not only be
favorable to him, but that ultimately the part he took
will be honorable in the highest degree to his character.

The declaration made by General Wilkinson to Knox,
who was complaining to him of the want of money, that
he might have so much, if duly considered, was proper
and correct. Now, sir, take up the subject as it really
appears ; even on the witness's own statement, it ap-
pears to be almost nothing. His ordering the military
agent to pay money to the witnesses, shows his reason
for offering money to Knox. When, therefore, we con-
sider the case as fully stated by Gaines, it appears to be
less than nothing ; because General Wilkinson did what
was perfectly consistent with law, and dictated by every
principle that ought to influence a man of integrity and
patriotism.

Gentlemen say, that it was his interest and his object,
in all his plans, to destroy Mr. Burr for his own sal-
vation. If this were true, would he not have used the
most decisive means to force the witnesses hither? What
did he do in this critical situation? He receives subpoe-
nas from the attorney-general, and tells the agent of the



344 TRIAL OF AARON BURR.

government, that he must apply to counsel, and act in
the business according to law. I ask, whether General
Wilkinson has done anything for which he or his friends
ought to blush, or the accused to complain ? All he did
was to make an affidavit, that the witness was material ;
and everything which he did, stopped there. After the
affidavit, everything which was done was the act of the
judge and of Mr. Gaines. Will gentlemen contend, that,
if my representation be correct, Wilkinson is to be blamed
for these acts? I know they have too much respect for the
court and for themselves to say so : but they will say,
that the military and civil authority were united for this
purpose. I ask, where is the evidence of a combination
between General Wilkinson and the judge? What temp-
tation was there to. induce the judge to violate his oath,
and prostrate his judicial character? Was it only for the
purpose of gratifying General Wilkinson, with whom he
had no intercourse, and with whom he was at variance?
It is incumbent on them to prove a previous connection'
between them before they can affect General Wilkinson.
They have not deigned to do this. But we have a wit-
ness on our part, whose testimony proves, that such a
connection was highly improbable. I wish Mr. Randolph
had pointed out the grounds on which he so boldly de-
nounced General Wilkinson for the acts of the judge.
Knox, who made a voluntary representation to Burr, has
no right to complain. He could maintain no action
against General Wilkinson. Suppose he were to sue him
for false imprisonment. Could he recover damages
against him for making the affidavit, that he was a mate-
rial witness ? No, sir. The connection between him and
the judge, and an improper and corrupt decision by the
judge, must be proved. The witness could have no ac-
tion against General Wilkinson, admitting the conduct

o o

of Judge Hall to be illegal and oppressive. I think this
ought to be conclusive. If there can be no right of ac-
tion, there can be no contempt. But how strange does
this proposition appear before the court ? Knox was
summoned to attend here as a witness. Suppose he had
not attended, he would have been liable to an attach-
iru nt for not coming; because the process of this court
(in the name of the president of the United States) had



MOTION FOR AN ATTACHMENT. 345

been served on him, and it was his duty to obey it.
He would, therefore, have been liable to be attached for
not coming, and yat General Wilkinson is to be liable
to an attachment for making him come! Is not this to
blow hot and cold at the same time ? This may be law ;
but no man in the world would say, that it bears the
least resemblance to common sense.

The gentlemen have never defined a contempt of the
court. It is stated in 5th Viner, 442.

The very definition of the offense excludes the possi-
bility of its application to the act now complained of.

How, then, can there be anything by way of contempt,
unless gentlemen will seriously say, that General Wilkin-
son himself has brought the witness hither, and that
bringing a witness to the court is a contempt of it.

The case in 2 Viner, 234, pi. 56, referred to by Mr. Mar-
tin, has no application to this case : it is not like it. The
contempt there consisted in keeping a juryman from at-
tending the court. I v/ill trouble the court by referring
to 4th Blackstone's Commentaries, p. 283. He states
that the contempts punishable by attachment are "either
direct, which openly insult or resist the powers of the
court, or the persons of the judges who preside there: or
else are consequential, which (without such gross inso-
lence or direct opposition) plainly tend to create a uni-
versal disregard of their authority." He further enumer-
ates in the two next pages, the instances of the different
kinds of contempts by officers, witnesses and parties, and
other persons ; all of which come within the same defini-
tion, of disregarding the authority of, or disobeying,
treating with disrespect, or abusing, the process of the
court. I believe it has been observed, that there never
was an author of any subject, either law or any other
science, more distinguished for precision than Black-
stone. This is a character which he so well deserves, that
I believe that an act that does not come within the scope
of his definition, is not a contempt, and ought not to be so
construted. Motions for contempts are questions be-
tween the court and individuals. In ninety-nine cases out
of a hundred, they have no influence on the private rights
of individuals. Yet the judges are but men, and they may
sometimes think there was a contempt, when none was in-



346 TRIAL OF AARON B URR.

tended: and, under the influence of feelings, of which
they are not themselves conscious, may decide accord-
ingly, and punish a party for an offeyse never intended,
and of course not committed. This is an observation
for which I am indebted to one of the ablest judges un-
der the government of Virginia. Its propriety struck
me with great force. Notwithstanding I .presume that
this is a fact, under such a high-toned government as
that of England, the counsel who opened the motion
acknowledged, that a case in point could not be found.
Contempts in Great Britain have been frequent, and
they have been uniformly punished ; but in this country
very few instances have occurred, and these were mostly
by drunken men. I ask, then, whether it be not wonder-
ful, if their motion be regular, that in all the volumes in
the English laws, which treat on the subject of con-
tempts, not a single instance can be adduced, by the in-
dustry of all the counsel on the other side, of an attach-
ment for such conduct as is now complained of ? But
it can be readily accounted for: it is because no such
motion as this has ever been known in Great Britain.
Though the doctrine of contempts have been too much
extended in that country, yet no motion was ever at-
tempted to punish a man for promoting justice by
bringing forward a witness to give evidence in a court of
justice. But I deny that this has been done by the
party now accused. Is there a single circumstance in
the conduct of General Wilkinson, showing a disregard
for the authority of this court? An attachment is a
summary proceeding by which a man is taken up in-
stantaneously, brought before the court, and unless, as
in the present case, long speeches happen to intervene,
he is immediately punished or discharged; and the case
is determined with as much rapidity, as the fate of those
suspected persons, who were formerly sent to the revo-
lutionary tribunal in France. Need I say to you, that
however justified on the score of necessity, this mode of
preceeding is not perfectly congenial with the spirit and
principles of our constitution and laws. I do not mean
to say, that this power is improper, and ought to be cut
up by the roots by the legislature ; but that it ought to
be exercised with caution, and in cases of real necessity,



MOTION FOR AN ATTACHMENT. 347

1st Bacon, 181, and 4 Blackstone's Commentaries, 286,
show, that attachments are issued on the ground of
necessity. If it be a doubtful case, since he is not tried
in the usual manner, but interrogated to give evidence
against himself, the court ought not to stretch the doc-
trine, but confine it within those limits which sound dis-
cretion requires. Even if an officer of the court acted
improperly, yet Bacon has laid it down as the law, that
an attachment ought not to be issued against him, if
there were no palpable corruption in his conduct. If
this be the law, is it not irresistible and conclusive to show
that, admitting that General Wilkinson did bring Knox
to this place, yet if he were not actuated by palpable
corruption, and if no extraordinary circumstance of mis-
conduct appeared on his part, the court will not proceed



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