Aaron Burr.

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

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against him in that way. If this caution be used in ex-
ercising this extraordinary power in Great Britain, is not
this caution ten times more .applicable to, and more de-
sirable in, a government like ours? I will mention a
case which occurred in Fredericksburg, which has been
communicated to me by Judge Roane. Some men were
charged in that district court with murder; the grand
jury found a true bill against them. The court told the
jailer to look to them ; accordingly the man took them
out of court; but it was understood next day, that he
had permitted them to escape. The court thought it a
contempt of the express order of the court, and the
question was, in what manner a jailer should be punished
for suffering men indicted for murder to go at large.
The jailer was willing to encounter the punishment of
the law, and the men came back. Judge Tucker thought
it certainly a contempt of the court ; but did not sit to
give a judicial opinion. Judge Roane, recollecting the
general power of courts, and the practice in such cases,
and that he was himself a party in the cause, was un-
willing to use the power which this law of England con-
ferred, and ordered a jury to be impaneled, to determine
whether a contempt were intended ? The point was
tried, and the jailer was found not guilty. I do not
mention this as authority ; but to show with how much
caution this summary mode of proceeding is used in
this country. In Great Britain they have no fixed con-



348 TRIAL OF AARON BURR.

stitution, containing fixed principles, by which their par-
liament is to be regulated. But in this country we have
a constitution which regulates the duties of the different
departments of government, and defines the rights of
the people. The seventh article of the amendments,
adopted as parts of the constitution of the United
States, provides, among other things, that " no person
shall be subject for the same offense, to be twice put in
jeopardy of life, or limb, nor shall be compelled in any
criminal case, .to be witness against himself." This
amendment is not directly applicable to this subject,
but it shows its regard for the great and important rights
of the people, and that they are not to be interfered
with, but with the utmost respect and caution. What
can not be done directly in a criminal prosecution,
ought not be attempted indirectly by an attachment.
I shall add, on this point, one more observation.
General Wilkinson is attending this important prose-
cution, under the authority of this court, A sub-
poena, obliging him to attend here, has been served
upon him. I do not say, that there is a provision
in the constitution and laws of the United States, by
which witnesses attending their courts, are put on the
same footing as witnesses attending courts under the
state authority ; but I have understood that the practice
in the federal courts is precisely the same. It is, perhaps,
grounded .on that clause of the judicial act, which makes
the laws of the several states the rule of decision in the
courts of the United States, in trials at common law,
in cases where they apply. In pages 122 and 278 of the
Revised Code of Virginia, the privileges of witnesses
are stated. In the former page they are exempted from
ordinary process. In the latter, they are privileged
from all arrests, except for treason, felony, or breaches
of the peace.

I did not suppose, when I saw the extreme solicitude
of gentlemen to bring forward this motion, their chagrin
at delay, and their eagerness to rush into the combat,
that they would have come forward on such feeble, trem
blirig ground, as they have done.

Mr. Randolph said that suspicion was a sufficient
ground for their motion. This is a plain admission, that



MOTION FOR AN ATTACHMENT. 349

he had no facts to support it ; for if he had evidence, he
would have relied on the facts he could prove, and never
have called the attention of the court to suspicion. It is
one of the last cases in which suspicion ought to be in-
dulged. This is not a rule to show cause, but a motion
for an attachment. Probable ground might be sufficient
to induce the court to grant a rule to show cause ; but
not to grant an attachment. To grant an attachment
against a man, to have him taken up, brought before
the court, and compelled to give evidence against him-
self, not on evidence, but on merely probable ground, or
what is the same thing, suspicion, is incompatible with
every principle of law and of human rights. The evi-
dence which it is incumbent on them to produce in sup-
port of their motion, ought to produce not suspicion,
but conviction. When Mr. Randolph says that suspi-
cion may be the ground for an attachment, he goes on
a slender basis, which is occupied by the previous rule
to show cause. This rule is always granted on showing
probable cause. If an attachment were grantable on
mere suspicion, what could support a rule to show cause?
It must be less than suspicion !

But I am wrong to blame Mr. Randolph, because it is
the best and strongest ground he could take ; for, with
respect to the fact which he ought to prove at this stage
of the business, it is so far from being established, that it
is clearly disproved. I know, sir, why the motion was
made. If I may use another very homely expression,
he " let the cat out of the bag." He became more ani-
mated, his voice more loud, and his arms more extended,
and then he told us of the dreadful union between the
civil and military authority. This is bad enough. It is
terrible enough to make strangers to our institutions
think it an extraordinary mixture of powers. When we
hear of this union of the civil and military authority,
and the complaint comes from Mr. Randolph, it must
excite surprise. Those who never heard of it before, as
foreigners, must think that this business is strangly man-
aged in this country. I am surprised to hear Mr. Ran-
dolph speak in such a manner. Why, sir, he knows that
this identical union of the civil and military authority
exists in our own government. The civil and military



350 TRIAL OF AARON BURR.

authority are joined by the constitution of the United
States. The president is commander-in-chief of the
army and navy of the United States ; yet this constitu-
tion, which we all revere, and which we have all sworn
to support, contains the very doctrine which Mr. Ran-
dolph so eloquently denounced. Even in this humble
government of Virginia, where liberty is secure, and
where no man apprehends oppression from the govern-
ment, the head of the executive is the head of the mili-
tary. The governor is the commander-in-chief of the
militia when brought into service ; yet Mr. Randolph
puts on his best countenance, voice, and gesture to warn
the people of this country of a dreadful attack on their
liberties, by giving this commission to a lieutenant to
serve a subpoena !

He ought to have recollected another thing. He is
not only a lawyer, but a politician. He knows that it is
to this very identical union of the civil and military au-
thority, that we are indebted for our liberties in their
origin, and since in their preservation. If they were
distinct, and exercised by different hands, we should soon
see the military have the ascendancy.

But suppose that Lieutenant Gaines's undertaking to
serve the subpoena was wrong, is it a matter of conse-
quence to General Wilkinson, who did not know that
Gaines had put off his military dress, and assumed in-
stead of it, that of a civil officer ? Gaines swears that
he never had any previous communication with General
Wilkinson on the subject ; and never knew anything of
it till the deputation was offered to him. General Wil-
kinson never advised it ; but if he had advised him to
accept it, it can not be charged as a crime to General
Wilkinson. He is able and willing to bear the imputation
without shrinking. There could be no impropriety in ad-
vising him to-do what was perfectly consistent with the law.

But Gaines did not give bond for the performance
of the duties of his office. What is the result ? That
the marshal was authorized to take assistance, and Gaines
might innocently have assisted him ; and this was all done
not under the military, but under the civil authority.

[Mr. Hay then referred the court to Graydon's Di-
gest of the Laws, p. 264, to show that his observations on



MOTION FOR AN ATTACHMENT. 351

this part of the subject were correct.] But, sir, the word
" military," is formidable in the ears of those who attend
courts of justice. It is therefore used. It is true, that he act-
ed in taking and keeping Knox, till he secured his attend-
ance here. But had gentlemen attended to the evi-
dence they would have seen that this was done un-
der the authority of the judge. But we hear dis-
tinctly those parts of the evidence which favor our
own side of a cause, and turn a deaf ear to those parts
which are against us. It is only on this principle, that I
can account for Mr. Randolph's preference in asserting
that Gaines acted as a military character ; whereas it is
evident that he acted in his civil capacity, in pursuance
of his commission from the marshal, and in obedience to
the order of the judge. In this statement he is corrobor-
ated by Graham, and not contradicted by any one. He
not only says so, but he produces the deputation from
the marshal, and the warrant of the judge, for the re-
moval. Buc if Gaines did act as a military man,
General Wilkinson is not responsible for it, any more
than the major or colonel, who were also his military su-
periors ; and if he were liable to the party in a civil action,
yet not for a contempt of the court. "Yet," says Mr.
Randolph, " he is incorporated with Judge Hall, in all
his acts ;" and one fact is particularly insisted on as in-
corporating them, that of his making the affidavit, that
Knox was a material witness; and the result -is, that it
Judge Hall put a wrong construction on the law,
General Wilkinson is responsible for it. Suppose
Wilkinson had gone before Hall, and made an affi-
davit to v the materiality of the witness, could Wilkin-
son be considered as responsible for any illegal conduct
of the j udge, after the affidavit was made ? Making such
an affidavit is a lawful act. On what principal can a man
who does a lawful act be amenable for the subsequent
unlawful acts of another? Will they contend for so
monstrous a proposition? Suppose an individual goes
before a magistrate and makes an affidavit that he has
lost something, which he believes to be in the possession
of another; and the magistrate, not knowing his duty,
issues his warrant for the purpose of taking up the per-
son suspected, to hang him ; would the individual, ihus



352 TRIAL OF AARON BURR.

submitting his case to the magistrate, be responsible tot
the conduct of the magistrate? What does he do?
He goes to the magistrate and asks for the interpo-
sition of the law, according to the law. Is the ap-
plying, but innocent, individual to be accountable for
the mistakes and errors of the magistrate ? The position
can not be maintained. It was not advanced in so many
terms, but it was strongly insinuated in their arguments,
or plainly to be inferred from them.

But another circumstance is relied on. Wilkinson was
the commander of the vessel. This is disproved. For
it is clearly proved, that Franklin Read was the com-
mander, who had a commission to that effect. Though
the naval forces were for a time put under the command
of General Wilkinson at New Orleans, he had no con- v
trol over this vessel at this time. It was natural that
General Wilkinson should have offered a passage to the
witnesses, if they chose to come in the same vessel that
he came in himself. He manifested the same disposition
when he came to Hampton. He got a vessel for their
accommodation and its cheapness. It only proves his
humanity and his disposition to oblige them, and make
their passage as comfortable as possible.

Yet, said Mr. Randolph, with an increased emotion
and elevation of voice, that would have surprised me if
I had not known his object, " why were subpoenas sent
to him, if not to be used with military authority?" Sup-
pose it was correct, that the attorney-general had sent a
number of subpoenas with a view to be used with military
authority, and that the commander-in-chief receives them.
What does he do ? What would any man suppose he
would do, or had done, if he were to form his opinion
from what has been said of his character here? He
would suppose that he had called about him his janizaries
and his mamelukes ; that he had sent one detachment to
one part, and another to another, through the whole
country, to search for and seize all persons who had the
misfortune to be witnesses: that this military despot had
sent out his myrmidons and military men, and without
any regard to law or justice, had seized, confined, and
transported as many as his arbitrary caprice required.
This, and worse he would have done, if his character



MOTION FOR AN ATTACHMENT. 353

were such as it has been depicted. But what did this
mighty lord of the west do with all these witnesses ? He
gave the subpoenas to Mr. Gaines to serve them, and
told him, that if there should be any difficulty, to apply
to a lawyer for advice how to act. And this is the mighty '
complaint against Wilkinson and Gaines!

Do gentlemen think that they make a favorable im-
pression on the public mind, when things in themselves
so innocent, are represented as acts of the highest enor-
mity? When things so white are thus discolored? If
they do, they are mistaken in all their calculations.

But, sir, General Wilkinson is guilty again, because he
ventured to ask Knox, if he were not afraid after what
had happened. After what? "After I have arbitrarily
seized and sent people to a great distance." What right
had Mr. Randolph to put these things in his mind, or
these words into his mouth ? I will venture to say, that
they do not express his real intention. It is obvious
that his meaning was, " Are you, who are an associate of
Burr, and have been of his party, not afraid to appear
before me?" I will ask, whether it be right to ascribe
to General Wilkinson sentiments which are not his own,
and then to condemn him for the sentiments thus im-
properly imputed to him ? Yet, this is the deplorable
necessity to which gentlemen are driven !

Mr. Randolph says, that Burr and Wilkinson are anti-
podes to one another. Indeed they are; but in what
sense they are so is a consideration which I need not
mention.

But, says Mr. Randolph, " it is the intention of Wilkin-
son to ruin Burr. He must perish unless the other fall,"
We were charged with going too far, in drawing unau-
thorized conclusions and inferences ; but Mr. Randolph
has gone much further than any of us, and has substituted
assertion for proof. He has stated, what is an unsup-
ported assumption, that the reputation of Wilkinson
depends on the destruction of Burr. I will not retort the
charge ; but I will say, that it is more important to Burr
to destroy Wilkinson's reputation. He knows how impor-
tant it is to the accused to batter down the reputation of
General Wilkinson. The accused knows it, and professes
it by his conduct; because from the commencement of
23



354 TRIAL OF AARON BURR.

the prosecution till this time, the object of every step
taken, and motion made, was to beat down the character
of General Wilkinson : but if they were to accomplish it,
it would be the same to their client ; it could not save
him. But they would say, that sf it would not be victory,
it would at least be revenge. The arguments of Mr.
Randolph are so irrelevant, and the cases he adduced so
inapplicable, though plain and not denied by us, that
I shall not take up time to worry myself and the court,
in proving points which are too plain to admit of contro-
versy ; but I will trouble the court with a few more
observations, without noticing his law authorities. I
shall boldly contend, that there was not only not a single
precedent among them, but that there was not even the
least justification for the present motion; that they have
no real bearing on the subject. They were either general
principles, which are not denied, but which do not apply
to this subject, or relate to the conduct of the officers of
the court, in serving criminal and other process. But
he stated with great solemnity, that " any force to swerve
a witness from the right statement of facts, was illegal
and improper." In order to apply this, he is obliged to
put down his own witness. The objection is, to the taking
testimony from the witness. But the witness said, that
there was no coercion used in taking his evidence ; on
the contrary that he was treated with courtesy. The objec-
tion operates equally against them ; for they have taken
his affidavit in this city. Admitting there was no degree
of terror or force used. This has no sort of application.

But Mr. Randolph says, that " no force is to be used
in getting a witness to attend." This is not law. If the
accused had been committed in the same district where
the witness resided, and the judge had sent forward the
accused, he would have been authorized to compel the
witness to come, and if he did not enter into a recogni-
zance he would have him put in jail. The spirit of the
law is, that a witness who is material, and refuses to
enter into a recognizance, may be removed by force. These
are the provisions of the act of congress. Force may be
and is used. The law directs that it shall be used. But
the position, if it were correct, does not apply to General
Wilkinson, because he did not bring the witness.



MOTION FOR AN ATTACHMENT. 355

It was said by Mr. Randolph, that it was a " most
dangerous power in 'any government, to extort testimony
ex parte" Is General Wilkinson responsible for all ille-
galities committed in the western country? Mr. Jack-
son, they say, has been guilty of great impropriety in
taking evidence. But notwithstanding this blame, which
they so eagerly attempt to attach to General Wilkinson,
he has not taken any evidence at all. All he did was to
make inquiry and take notes of Knox's evidence. But
they ask why were these notes taken? To satisfy his
own mind that he was a material witness.

But there was one observation which Mr. Randolph
used, with great warmth and solemnity, that "a citizen
of the United States was thrown into jail by corporal
force, and transported for the crime of being a witness."
Is it not surprising, that they take such ground as this?
Is it not strange to hear gentlemen of great experience,
who have been intrusted with the management of impor-
tant business, gravely speaking in this way ? to hear Mr.
Randolph say, that " a citizen has been thrown into jail
and transported?" These are sounding and imposing
words. Does not the court know that these are things that
may be done by law. The court well knows, that under
the law of congress it is the business of a judge to recog-
nize witnesses, and if they refuse to enter iifto a recog
nizance, or fail to attend, to commit them and transpor*-
them by land or water, as may be most convenient, tc
the place of trial. Is not this power expressly given by
the words, " it shall be the duty of the judge of that dis-
trict where the delinquent is imprisoned, seasonably to
issue, and of the marshal of the same district to execute
a warrant for the removal of the offender and the wit-
nesses, or either of them, as the case may be, to the district
in which the trial is to be had ? " *

Mr. Randolph, without a single tittle of evidence, and
without any principle of law to support him, prays in
vain for a favorable decision. All the authorities which
he introduced are extremely vague ; they do not show in
the smallest degree that the facts alleged, if proved, would
amount to a contempt of the court. Superadded to all
this long catalogue of black crimes, you are told, with
great solemnity, tfeat a citizen of a free country has been



356 TRIAL OF AARON BURR.

transported by military authority ; not for a violation of
the laws of his country, but because he was a witness. Sir,
I will not animadvert on his mode of conducting a cause ; I
will only remark, that those observations when made, were
introduced with the utmost solemnity, expressed with
the strongest and most forcible voice, heard by every
person within the walls of this house, and were certainly
intended by the speaker to excite indignation against
General Wilkinson, and sympathy for the accused ; and,
after all, it amounts only to this, that a witness may be
compelled to attend, if he do not do it voluntarily.

The next observation was urged with precisely the
same view. He seems to tremble when he fancies that
he sees the prostration of all our rights, and of our in-
dependence ; when with uplifted hands and eyes, and
elevated voice, he tells you of the military sporting with
the rights of the citizens! If it were mere sport, he
need not be so much alarmed. But what was this mili-
tary sport, against which he so loudly declaimed? It
was simply this, that a captain, with the permission of
his general, and after a deputation by the marshal,
served a subpoena on a witness, and brought him with
him, being himself a witness and obliged to come! I
am not surprised that gentlemen wander from the point,
because otherwise there would be very little ground for
them to stand upon.

He talks of the robbery and plunder of the post-
offices. For what purpose ? Suppose the fact to be as
it is assumed without the slightest proof. Let General
Wilkinson, or any other person who has committed the
act, be prosecuted according to law. Let the parties
injured apply to the law, and the parties who are guilty
be punished. But though the acts thus ascribed to
General Wilkinson were clearly proved, they could not
be considered as a contempt of the court. Everything
is ascribed to General Wilkinson, in order to furnish a
sort of pretext for denouncing him to the world.

Being fatigued myself, and believing the court to be
so also, I shall not trouble it with any further observa-
tions. I trust that the court will render a correct judg-
ment, according to the evidence and law.

While Mr. Hay was speaking the grand jury entered,



WILKINSON'S LETTER TO BURR. 357

and their foreman, Mr. Randolph, addressed the court
to the following effect :

May it please the court :

The grand jury have been informed that there is in
the possession of Aaron Burr a certain letter, with the
post mark of May I3th, from James Wilkinson, in
cyphers, which they deem to be material to certain in-
quiries now pending before them. The grand jury are
perfectly aware that they have no right to demand any
evidence from the prisoner under prosecution, which
may tend to criminate himself. But the grand jury
have thought proper to appear in court to ask its assist-
ance, if it think proper to grant it, to obtain the letter
with his consent.

Mr. Burr rose, and asked whether the court were
about to give an opinion?

The Chief Justice stated, that the court was about to
say that the grand jury were perfectly right in the opin-
ion that no man can be forced to furnish evidence
against himself; he presumed that the grand jury wished
also to know whether the person under presecution
could be examined on other questions, not criminating
himself?

Mr. Burr declared that it would be impossible for
him, under certain circumstances, to expose any letter
which had been communicated to him confiden-
tially ; how far the extremity of circumstances might
impel him to such a conduct, he was not prepared to
decide ; but it was impossible for him even to deliberate
on the proposition to deliver up anything which had
been confided to his honor; unless it were extorted from
him by law.

Mr. Randolph. We will withdraw to our chamber,
and when the court has decided upon the question, it
will announce it to the grand jury.

The Chief Justice knew not that there was any objec-
tion to the grand jury calling before them and examin-
ing any man as a witness, who laid under an indictment.

Mr. Martin said there could be no objection.

Mr. Randolph said he was afraid that the object of ^he

grand jury had been misunderstood by the court. The

rand jury had not appeared before the court to apply



358 TRIAL OF AARON BURR.

for the person of Aaron Burr to obtain evidence from
him, but for a certain paper, which might or might not
be in his possession ; and upon that paper being or not
being in his possession, and upon its being possible or



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 34 of 64)