Aaron Burr.

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

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not possible to identify that paper, it might depend
whether Aaron Burr himself were or were not a mate-
rial evidence before them. And then the grand jury
withdrew.

When Mr. Hay had concluded his argument, Mr.
Mac Rae addressed the court. He was solicitous, he
said, to lay a communication before it, on a circumstance
which had lately transpired. The grand jury had asked
for a certain letter in cyphers, which was supposed to
have been addressed by General Wilkinson to the ac-
cused. The court had understood the ground on which
the accused had refused to put it in their possession, to
be an apprehension lest his honor should be wounded,
by his thus betraying matters of confidence. I have
seen General Wilkinson, sir, since this declaration was
made. I have informed him of the communication
which has thus been made ; and the general has ex-
pressed his wishes to me, and requested me to express
those wishes, that the whole of the correspondence be-
tween Aaron Burr and himself, may be exhibited before
the court. The accused has now, therefore, a fair oppor-
tunity of producing this letter; he is absolved from all
possible imputation ; his honor is perfectly safe.

Mr. Burr. The court will probably expect from me
some reply. The communication which I made to the
court, has led, it seems, to the present invitation. I have
only to say, sir, that this letter will not be produced.
The letter is not at this time in my possession, and Gen-
eral Wilkinson knows it.

Mr. Mac Rae hoped that notice of his communication
would be sent to the grand jury.

Mr. Martin hoped that Mr. Burr's communication
also would go along with it.

The Chief Justice was unwilling to make the court the
medium of such communications.

Mr. Mac Rae hoped that the court would notify his
communication to the grand jury, and for an obvious
reason. When the grand jury came into court to ask for



INDICTMENTS BY GRAND JURY. 359

the paper, what did the accused say? Did he declare
that it was not in his possession ? No : he merely said
that honor forbade him to disclose it. The inference
undoubtedly was, that he had the paper, but could not
persuade himself to disclose it. And what, then, must
have been the impression of the grand jury ? A cloud of
suspicions must have fastened itself upon their minds ;
suspicions unjustly injurious to the character of General
Wilkinson ; and which the present communication may
at once disperse. It is but justice therefore, to General
Wilkinson, to whom the inquiries of the grand jury may
at present relate, to give them the benefit of this infor-
mation.

Mr, Burr. General Wilkinson, sir, is extremely wel-
come to all the eclat which he may expect to derive from
this challenge ; but as it is a challenge from him, it is a
sufficient reason why I should not accept it. But as the
remarks of the last gentleman seem to convey some re-
proach against me, (which no man who knows me can
believe me to deserve) it may be proper to say, that I
did voluntarily, and in the presence of a witness, put the
letter out of my hands, with the express view, that it
should not be used improperly against any one. I wished,
sir, to disable any person, even myself, from laying it be-
fore the grand jury. General Wilkinson knows this fact.

The Chief Justice then reduced these communications
to writing, and transmitted them to the grand jury.

Mr. Burr. Let it be understood that I did not put
this letter out of my possession, because I expected the
grand jury would take up this subject ; but from a suppo-
sition that they might do so.

Mr. Wickham, about to speak, was interrupted by the
entrance of the grand jury; when Mr. Randolph, their
foreman, informed the court, that they had agreed upon
some presentments ; which he then delivered into the
hands of the clerk. The clerk read as follows :

" The grand inquest of the United. States, for the dis-
trict of Virginia, upon their oaths, present, that Jona-
than Dayton, late a senator in the congress of the United
States, from the state of New Jersey ; John Smith, a sen-
ator in the congress of the United States, from the state
of Ohio ; Comfort Tyler, late of the state of N:\v York ;



360 TRIAL OF AARON BURR.

Israel Smith, late of the state of New York ; and Davis
Floyd, late of the territory of Indiana, are guilty of trea-
son against -the United States, in levying war against the
same; to wit, at Blannerhasset's island, in the county of
Wood, and state of Virginia, on the I3th day of Decem-
ber, 1806.

" Upon the information of

William Eaton, Erick Bollman,

Peter Taylor, Jacob Allbright,

Charles Willie, John Graham,

Samuel Swartwout, George Morgan,

John Morgan, Thomas Morgan,

Elias Glover, D. Woodbridge, jun'r.

David C. Wallace, Edmund B. Dana,

John G. Henderson, Alexander Henderson,

James Wilkinson, HughPhelps,

Jacob Dunbaugh, John Monholland,

Chandler Lindsley, James Knox,

William Love, Thomas Hartly,

Stephen Welch, James Kinney,

Samuel Moxley, David Fisk.

Benjamin H. Latrobe,

JOHN RANDOLPH, Foreman."

The grand jury, continued Mr. Randolph, have no
further presentments to make. He then delivered two
papers which they had received from the court. The
one was a cyphered letter, addressed to H. Winbourn ;
the other was the letter to Colonel Morgan.

Chief Justice. Mr. attorney, have you anything more
for the grand jury.

Mr. Hay. I can have all the indictments ready to be
laid before them to-morrow.

Mr. Taylor (from Norfolk). Is it not customary for
the attorney to file informations upon these present-
ments? Is there any necessity for detaining the jury ?
Some objection was made.

Mr. Randolph. May not the bills be laid before an-
other grand jury, as the parties presented are not now in
custody ?

Mr. Hay. That course would be productive of great
inconvenience. All the witnesses are now here ; and
they will not, perhaps, appear before another grand jur. ,



MOTION FOR AN ATTACHMENT. 361

and the present jury are already in possession of all the
evidence.

Mr. Randolph had hoped that they would be dis-
charged. He was not anxious on his own account, but
there was one of the jury peculiarly and delicately situ-
ated, who wished to return to his family.

Mr. Taylor observed to the court that a very afflicting
circumstance, of a domestic nature, made him peculiarly
anxious to return home.

Mr. jFfaywa.5 extremely sorry that he could not gratify
the wishes of the jury; but the interest of the United
States forbade him. He would have the indictments
ready at any hour in the morning, that the jury would
name. Nine o'clock was mentioned, and the jury were
then adjourned to that hour.

Mr. Wickham then addressed the court to the follow-
ing effect :

I should envy the gentleman, last up, the peculiar fe-
licity of never being in the wrong ; and that happy
ductility of judgment, which enables him to apply other
gentlemen's arguments to suit his own purposes, and to
view everything on his own side as perfectly clear. The
praise of General Wilkinson is his great object. His
pure virtue and disinterested patriotism constantly ex-
cite his utmost zeal, and form the theme of his finest
eulogies. Of this object he has never lost sight ; but
his own argument did not make much impression on his
own mind ; the further he went on, the weaker it was.
Whether this were produced by some supervening
doubts on the subject, or because what is deemed clear
requires no argument, I will not undertake to determine.
It would, however, save much time, if the gentleman
would introduce a short formula, referring to his former
arguments in praise of General Wilkinson, instead of
perpetually repeating them. On what ground has the
gentleman on the other side gone on to argue so elabor-
ately and zealously, if he think the case so perfectly
plain ? If it were so perfectly clear as he affects to con-
sider it, why did he address so long an argument to the
court? Did he believe so much labor necessary to
satisfy the minds of your honors that the case was so
very plain ?



362 TRIAL OF AARON B URR.

But, waiving all these considerations, I mean to con-
fine myself to the point. It is to the court and the
court alone, that I mean to address myself. The gentle-
man on the other side insists, that we have made no
specific charge against General Wilkinson. We can not
help it if he do not understand us; but we have stated
a specific charge in terms as plain as any in the English
language. If he do not comprehend it, perhaps it is
because our arguments have not as much weight with
him as his own. It is extremely difficult to conquer
prejudice. Our charge is, that there have been acts in
the highest degree illegal, done by General Wilkinson,
under color of the process of this court ; that a citizen
has been dragged by military force one thousand two
hundred miles, for the crime of being a witness, and
having a subpoena served on him. We contend, that
this is a direct invasion of the liberty of the citizen ; an
abuse of the process, and a contempt of the court ; and
deserves a most severe punishment, if we can bring it
home to General Wilkinson, of which we have no doubt.
We have supposed that the judge's warrant was merely
a void act ; because it was illegal. We have supposed,
that calling on the judge, an officer without authority, to
make out a warrant which was neither legal in form nor
substance, but a mere attempt to give the semblance of
legality to what they knew to be illegal, was an aggrava-
tion of the offense.

Gentlemen say that it was only a judicial act, in which
a judge may be mistaken without being liable for his
mistake. Will the gentleman contend that an illegal
warrant, issued by a magistrate having no authority to
act, can have any effect ? Whatever he does, without
having jurisdiction, is void, and has not the least valid-
ity ; if he err, his mistakes are not excused. But if he
have jurisdiction, and a right to act on the subject, he is
not responsible for errors of judgment. There is nothing
better settled, than that distinction between cases where
a magistrate has authority to act, and cases where he has
not. In the former, his mistakes of judgment are ex-
cused ; but in the latter, he is. personally responsible for
his acts, and his misconception of the law does not in
the least excuse him.



MOTION FOR AN ATTACHMENT. 363

Another observation is, that in the lowest as well as
in the highest offenses, all are principals. Every person
concerned in an illegal act is equally guilty, in the eye
of the law, with the person most active. The question,
then, arising on this particular case, is whether this act
of violence, this abuse of the process of this court were
procured or aided by General Wilkinson, or were, as-
sented to by him, either before or after the imprison-
ment complained of? If he acquiesced in the mischief
done, or assisted in it, he is as guilty as if he had first
contrived it. Every person who assents to, or aids in,
the completion of an illegal act, is a trespasser ab in-
itio.

Instead of wandering into the wide field of declama-
tion, to palliate or justify those illegal acts, gentlemen
ought candidly to have said, " We admit the guilt of
those inferior agents, by whom the acts were committed,
but we insist that General Wilkinson is innocent." No
sir, not choosing to rely on his innocence, they under-
take to show that the act itself, if not innocent and
justifiable, is at least excusable ; and they censure us for
making this motion, as if we had no interest in it. They
tell us that- " the United States have not been injured,
and make no motion." Sir, if the officer of the United
States do not choose to resent this indignity to the
court, which goes to sap the foundation of justice, is
that a reason why the party injured should not lay it
before the court ? This is the cause of the United
States ; it is the cause of every man who comes forward
as plaintiff or defendant. Every man feels an interest
to keep the fountain of justice pure and uninterrupted.

They ask, " was the witness brought here to speak
truth?" I hope this man did say the truth. I am sure
he did say the truth ; because the witnesses they relied
upon, to exculpate General Wilkinson, proved that
everything he said was true. They confirmed not only
all he said, but supplied every omission in his chain of
evidence. But, sir, has fear no effect? Has it no opera-
tion on the human mind ? If this man had nerves
strong enough to bear such treatment, are we sure that
the fortitude of others will not be shaken ? If the court
sanctioned the practice of bringing witnesses to the bar



364 TRIAL OF AARON BURR.

as criminals, will it not have the practical effect, in many
instances, of preventing impartial evidence? Can we
expect from a man dragged as a felon, that manly dis-
closure of facts, which distinguishes a firm and inde-
pendent mind; and which neither the fear of offending,
nor the hope of pleasing any party, however powerful,
can prevent from exculpating or criminating according
to truth and justice? Was not hope as well as fear
used ? On one side you have a sum of money and other
emoluments ; on the other, ruin and disgrace. On the
one hand you have every prospect of advantage; on the
other of being dragged in chains! Can it be doubted,
that if this practice be tolerated, a witness, allured by
h9pe on one side, and alarmed by fear on the other, will
deviate from the truth? If there be a deviation, it is
on the side of the prosecution ; for which way they wish
it can not be doubted. The man who avows maxims of
this sort, for the attainment of any end, will not be
scrupulous as to the means which he employs to secure
it. But another view in which this subject ought to be
placed is this: Mr. Burr in justice and law stands on an
equal footing with his accusers. He ought, if possible,
to be so in fact ; but we know that it is impossible ; that
every disadvantage operates against every man who is a
prisoner ; and that every advantage is in favor of the
prosecution. On one side all the means of procuring
evidence are restricted; on the other the means of com-
manding testimony for the prosecution are unrestrained
and abundant. An officer appointed by the government,
and liable to be turned out of office at its pleasure,
summons the witnesses. If he be a firm and indepen-
dent man, determined to do his duty correctly, at all
hazards, so much the better; but if not, we know how
his bias will be. The public treasury may be emptied
in collecting witnesses and employing affidavit-men ;
and, in addition to all these means, if there be unwilling
witnesses, or any who suggest doubts, they are brought
by force to give evidence. But, if we have unwilling
witnesses, who can testify the truth in our favor, we
have nothing but the naked process of subpcena to
compel their attendance. There are great advantages
on the part of the prosecution, which ought not to be



MOTION FOR AN ATTACHMENT. 365

carried any further. This is an unfair advantage to the
prosecution, which this court ought to take from them.
But, "we have made this motion, in order to make im-
pressions on the public mind." I will not waste the
time of the court in inquiring who have wasted
most time. We have been obliged to follow the gentle-
men in this course. It will be recollected by the court,
that they have repeatedly attempted, in this court, to
advocate and foment those strong prejudices, which
have been industriously, and but too successfully excited
against Mr. Burr in the country. They still continue their
effects to create and increase those prejudices. I ask,
whether it were to the public or to the court that those
remarks were addressed ? What has the court to do
with motives? But if motives be discussed, did they
not wish to influence the public mind, at the very mo-
ment when they accused us of it? Mr. Burr is not
obliged to account for his motives. We are correcting
that influence on the public mind, which has been im-
properly produced. But there is a motive, and a very
powerful one, to justify this motion. We know not how
long this prosecution may be continued. We know not
how long this practice may be continued. We wish this
court to put its veto upon it, and act in terror em, to pre-
vent such oppressive and unjustifiable practices hereafter.
For as long Us the prosecution lasts, this offense may be
repeated, and therefore ought to be repressed.

But, " suppose General Wilkinson to be the man who
has dragged a citizen by military force, from one end
of the country to another, it is only a mistake of the
law." Does the gentleman forget the legal maxim, that
"Ignorance of the law excuses no one ?" But if this
were not the law, and ignorance were an excuse, can it be
believed, that this was a mistake proceeding from igno-
rance? General Wilkinson is in possession of the highest
military office under the government. Can a man in his
elevated station, be so ignorant as to believe, that he can
drag a man, as a felon, twelve hundred miles for the
crime of being a witness? If he be this ignorant man,
and if he commit acts in the highest degree tyrannical,
through ignorance, what shall we say of the government
which appointed him ? Sir, the government knew that



366 TRIAL OF AARON BURR,

he was a man of talents, and had no right to believe, that
he would do these things ; or, if he should, that he would
not be personally responsible for them. No man will be-
lieve that the government thought, or that he himself
thought, that he could assault or imprison any man law-
fully or with impunity. There is hardly a boy out of his
hornbook, that does not know better than that such acts
could be legal. I hope we shall hear no more of the
ignorance of General VVilkinson.

But we are told, that we are guilty of a contradiction
that can not be reconciled. The gentleman says, " if
Wilkinson had stopped Knox and prevented him from
attending as a witness it would have been a contempt of
the court ;" and we are asked, " if it be a contempt
to stop him, how can it be a contempt to bring
him, as the acts are opposite 'in their nature?" This
is a most singular argument. Things may be opposite,
and yet be wrong. Extremes are frequently wrong. It
would be a strange thing if General Wilkinson could have
carried this man from Richmond to Norfolk, by force,
and be liable for his conduct ; and yet if he carried him,
in like manner,- from Norfolk to this place, that he should
not be equally liable. These acts are opposite in their
nature, and are equally contrary to law. Suppose Knox
had been brought in irons, and used cruelly (for Wilkin-
son used no more cruelty than suited his pufposes), would
he not be responsible for so maltreating a witness under
the protection of the court.

But the gentleman says, that it was stated to be an at-
tack on the liberty and privileges of a citizen, but that
"it shrinks into nothing; " that the offense was only to
compel an unwilling witness to attend ! And does the
gentleman seriously contend, in this country ,*and in this
court, that it is a venial offense to cast a man into prison,
and to force him to come twelve hundred miles, with
only the authority of a subpoena? Are the liberties of
the people of this country dependent on so fine a thread,
that any man, clothed with military authority, can use
his power or force over any citizen of the United States,
if he have a subpoena in his pocket ? Any party having
a cause in court, may have a subpoena to summon any
other person. I remember, the other day, that these gen-



MOTION FOR AN ATTACHMENT, 367

tiemen admitted, that a subpoena might issue against Mr.
Jefferson, and that his high station, of chief magistrate,
did not exempt him from it ; that all the citizens of this
country were on grounds of perfect equality. We agree
that their doctrine is correct. Let us see the application
of it. If all the people be on terms of equality, they were
so when the process which issued, requiring the president
to give testimony, was served. Suppose it had been put
into the hands of half a dozen myrmidons, and that after
serving it, they had dragged him by force from Washing-
ton to this place ; what would have been said of such con-
duct ?' Would it not have been an offense that ought to
be severely punished? Yet there is no difference
between Mr. Jefferson and Knox, with respect to
their leg-al right of exemption from such acts of vio-
lence ; and yet they contend, that the treatment
of Knox was correct and lawful. Are gentlemen
serious, when they urge arguments like these? I come
now to the inquiry, What are the facts which are said to
justify or excuse the ill-treatment complained of? And
first, as to Mr.'Hall, whose warrant, though null and void,
is brought forward to bolster up General Wilkinson. He
is the mere puppet of Wilkinson. They say that he and
General Wilkinson were at variance. It is very probably
true ; and General Wilkinson might be at variance with
every man at New Orleans, except his own immediate de-
pendents. Was there no motive to operate on Judge Hall ?
Was there not such a passion as fear? Hall knew what
Wilkinson had done, and what he could do ; and when he
sent him a message, to devise some process to bring Knox
by force to this court, Hall knew, that the requests were
commands. Observe how the transaction originated.
Wilkinson's motives are too obvious to admit of a doubt.
He sends for Knox ; treats him with particular courtesy ;
offers him his services ; asks him if he wanted money, and
a number of questions concerning Burr; and takes down
his evidence in writing, differently from the facts, and not
as he told them. These are all done by General Wilkin-
son, without the intervention of any other human crea-
ture. It is obvious, that General Wilkinson did not go
directly to the object he had in view, but amused him at
first with some observations about Dunbaugh ; about all



368 TRIAL OF AARON B URR.

of whose measures he knew more than the witness
himself. After this solicitude shown to get testi-
mony from the witness (and such only as suited
his purposes) we find the process of this court used.
Lieutenant Gaines, who commanded at Fort Stoddert,
one hundred, or perhaps two hundred miles from New
Orleans, in pursuance of an order from the secretary at
war (a military order, gentlemen will admit) is di-
rected, after serving some of the subpoenas, sent
to him on some persons under his own command,
to go to General Wilkinson, and to deliver him the
subpoenas ; and somehow or other, they get from
General Wilkinson's hands into his own. % We have
brought the case of Knox before the court, in order to
try the principle, and to ascertain whether such practices
are to be tolerated. General Wilkinson tells Gaines that
Knox is an important witness and must be summoned.
He recommends to hrni to summon him. Is not a rec-
ommendation from a military superior a command? and
was not this command to have this man summoned ? It
was found that he would not go. What was the next
step ? He did not order Gaines to go and consult a law-
yer, to know what was right and ought to be done, as
gentlemen allege in his defense ; but how Knox was to
be brought, and how his own illegal purposes were to be
effected. Gaines refers to lawyers ; they give advice how
this purpose is to be attained. Wilkinson then gives
him further orders. He advises him to go and consult
Mr. Hall, and obtain his advice and assistance. A sub-
ordinate officer is bound to obey his master's commands.
He therefore goes and takes the advice of Mr. Hall.
After getting his advice and directions, he goes to the
witness, who is a little sulky: and in order to put him
into good humor, in this pleasant situation, he is thrown
into jail ; and then forced by a military guard on board
the vessel, which was under the control of General Wil-
kinson ; for he only gave them permission to take a pas-
sage with himself. After the witness is deprived of the
means of getting his clothes and other necessaries, and
sent on board by Dunbaugh, some money is wanted ;
forty or fifty dollars must be had. Where is this sum to
be got ? Did General Wilkinson give Ganies any order



MOTION FOR AN ATTACHMENT. 369

respecting it, and what ? He orders him to take the
money out of the military chest. This proves that it was
for a military, and not a civil, purpose. Why was he rec-
ommending, advising, ordering, and referring, this infe-
rior officer, unless he were performing a military service?
I mean no disrespect to Lieutenant Gaines, but the con-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 35 of 64)