Aaron Burr.

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

. (page 36 of 64)
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trary. For it is evident that he must have felt himself
in a disagreeable situation ; but he was compelled by the
authority of his superior officer to execute this request.
He obeys ; and when all this had been done, it was not
sufficient. There must be a marshal to execute this pro-
cess. Lieutenant Gaines, from being an officer of honor,
is turned into a bailiff. He was told, " The marshal has
already appointed you ; here is a deputation by which
you are constituted his deputy to perform this business.
It may be unpleasant for you, as an officer, to do this
dirty business. You are to have the paper in your pocket
that authorizes you to do it ; but you need not do it your-
self. You can employ a sergeant or a soldier to do it."

There was an evident perplexity in Mr. Gaines's testi-
mony. It was a perplexity arising from the interference
of civil with military duties. He found himself obliged
to wear over his military garb the disguise of a catchpole,
which, as an officer, must have been extremely repug-
nant to his feelings. The perplexity was not in his narra-
tive, but arose from the situation in which he was placed
by General Wilkinson.

It would be a waste of the time of this court to show,
that General Wilkinson was the prime mover and con-
triver of all these rigorous and oppressive proceedings.
The gentlemen attempt to devolve the responsibility
on Judge Hall, who is said to be a man of honor and re-
spectability. You may judge how honorable his situa-
tion must have been, when he was forced to obey Gen-
eral Wilkinson in manifest violation of law ! Must he
not have felt himself degraded, by being compelled to
give an oppressive construction of the law, against his own
judgment? The judge could not be mistaken as to the
law. It is written in plain terms. Can it be supposed
that so respectable a judge as he is represented to be,
could believe that he had a right to send a witness, as a
prisoner, to any place, and in any manner he pleased ;
24



370 TRIAL OF AARON BURR.

and that a witness loses the rights of a citizen the moment
he is summoned ? The eulogium pronounced on Judge
Hall, disproves every argument they use on the sub-
ject.

But " Mr. Wilkinson asked Mr. Graham to consult Mr.
Hall." Mr. Graham delivered his evidence in a most
correct and proper manner, and free from perplexity.
He proves every feature in the cause that was not proved
by Knox and Gaines. They rely on Mr. Graham's testi-
mony. To me it is most marvelous that gentlemen can
not perceive that his testimony goes directly to fix the
guilt, if there be guilt, on General Wilkinson. He says
that he was directed by Wilkinson, to ask Judge Hall if
there were any legal means of compelling this man to at-
tend as a witness ? The evident meaning of this inquiry
was this, " Compel him by legal means if you can, but in
any event compel him to attend." Every illegal warrant
is void. He must have known it to be so. Is it not
evident that this communication between Graham and
Hall, was made at the instance of General Wilkinson, and
with a view to shelter himself under the forms of law ?

But " if he were a military despot, he would not have
regarded them !" When did this happen ? In May, 1807.
He must have known what had been done in the United
States, and that his conduct had excited universal horror
and indignation throughout the country. He is the
prime mover, and every act done by others is imputable
to him. They were under his control, and compelled to
act as they did ; and perhaps they deserve rather the
pity, than the censure of the court. He, therefore, was
desirous at this time to shelter his acts under the forms
and apparent sanction of the law.

But this is not all, as I had occasion to observe before.
A man who sanctions an illegal act, though not the first
contriver of it, subjects himself to all the consequences of
it. When Knox came on board the vessel, the question
is, whether General Wilkinson knew that it was reluc-
tantly? General Wilkinson knew most assuredly, that
he was put on board against his will, by a military guard,
and yet he did not assist him ; for he knew that it had
been done in pursuance of his own well-understood wishes
and orders. The evidence of Mr. Gaines, collectively



MOTION FOR AN ATTACHMENT. 371

considered, proves this clearly. Gentlemen say, that the
vessel was commanded by Mr. Read. I have seen the
young gentleman, and I hope he deserves the character
which the gentleman gives him ; but it is clear, that he
\vas ready to obey the superior commands of General
Wilkinson, and that he knew it to be his duty. Mr.
Gaines said, that he was obliged to apply to General Wil-
kinson, and not to Franklin Read for a passage on board
the vessel. It was the same case with Mr. Graham.
When several different commanders, as a military and a
naval commander are together, the inferior in rank acts
under the command of the superior, and all the navy of
the United States at New Orleans was under the com-
mand of General Wilkinson.

But what was done at Hampton ? Mr. Gaines, in every-
thing relative to this transaction, only obeyed his supe-
rior officer. He therefore t6ld Knox, " You are to under-
stand, that you are brought here by virtue of a deputation
from Judge Hall to me, and not by the military orders
of General Wilkinson. You are to understand that this
was really the case." Why? Because General Wilkin-
son recommended it. These were terms of mere civility.
I dare say, that Bonaparte, when he gives orders, uses
civil language ; whenever he gives particular orders to
any of his officers, he may say, " You will oblige me, by
taking such a place." " You will oblige me, by seizing
such a party." "You will oblige me, by conquering such
a territory." Or, " by accomplishing any other achieve-
ment." . Suppose the officer thus ordered, were to disobey
and excuse himself by saying, " I misunderstood you ;
you only said you would be obliged to me, if I would do
so." Would he not be instantly punished or shot for
disobedience of orders ?

Mr. Hay. That is only the rule on military subjects.

Mr. Wickham. This was not a civil transaction cer-
tainly. But, sir, this was really not so bad after all, be-
cause Knox had counsel. That counsel only expressed
his doubts to Judge Hall. It is the custom at New
Orleans for lawyers to respect and obey judges (it was
once so here) ; and this was a respectful expression of
his opinion. The judge directed the measure, and the
counsel acquiesced. He knew that his doubts would be



372 TRIAL OF AARON BURR.

of no sort of consequence, and that Knox would be sent
round. He knew that Wilkinson directed and controlled
all. The gentleman then went on and assumed asa/w-
tnlatum, that if no action would lie for this treatment to
Knox, there could be no contempt of the court, for which
an attachment would lie. It would be a most extraor-
dinary doctrine, that the process of this court could be
obstructed by the application of force, or even by the
fear of violence, and yet that the court could not punish
it by an attachment. But I will admit, for the sake of
argument, that an attachment for a contempt will not
lie, if no action can be maintained by the party injured.
But what then ? Will the admission strengthen his argu-
ment ? Has the party aggrieved no redress? If to be
taken up, confined, and transported as a felon, from one
part of the country to another, for no crime, will not
support an action, then our courts of justice may as well
be shut at once. If an action could not be maintained
for such treatment, for what would it lie ?
, " But he had good provisions." That is not the point
at issue. " But he was at liberty after he was on board."
He was not permitted to go on shore, and if he were not
satisfied with his situation in the vessel, he was at liberty
to walk overboard. The only sort of liberty which he
had, was that of jumping into the sea, if he thought
proper.

I will not go into the law of the case, because I am
perfectly convinced it is unnecessary. We rely on the
broad principle, that whenever the process of the court
is abused, it will interfere. But you are advised to imi-
tate the judge, who some time ago at Fredericksburg,
directed it to be decided by a jury, whether a contempt
of the court were intended. I will not undertake to un-
dervalue the benefit of the trial by jury on any account ;
but there would be a disadvantage to General Wilkinson,
in submitting it to a jury. It would not be a boon, but
a probable injury. If he be in contempt, how is he to be
exonerated ? By his own oath, and not by the oath of
a jury. He comes in and answers interrogatories on oath,
and if he deny the facts charged, he is acquitted ; or if he
explain them to the satisfaction of the court, he is equally
cleared; but if he refuse to answer, or if he admit the



MOTION FOR AN ATTACHMENT. 373

>

facts as charged, then only is he to be punished. But
he is referred to his own oath, and to his own judg-
ment, for a complete exoneration. Is this an advantage
or a disadvantage ? Is it not more beneficial than to re-
fer it to the judgment and the oath of a jury. There can
be no doubt that a motion for an attachment is sustaina-
ble, for the abuse of the process of the court in any place
where it can lawfully issue.

There is one difficulty which the gentlemen on the
other side did not mention, and it is this; that the acts
were not done in this district, and that perhaps this
court has no cognizance over them. But part of them
was done in this district ; force was used at Hampton ;
Knox was there continued on board against his will, and
that gives the court jurisdiction.

But, sir, the process of attachment is auxiliary to that
of subpoena. The process of subpoena goes throughout
all parts of the United States ; and that of attachment
ought to be commensurate wJth it. It is in vain to give the
power to issue process, without the power to enforce it ;
and wherever it is abused or improperly executed, the
court can notice it and punish the party for not execut-
ing it according to law. This doctrine, I think, was
sanctioned by the opinion of Judge Patterson, in the
case of Smith and Ogden, in the district of New York.
In the case of William Smith, a subpoena had issued, to
summon the secretary of state, and the secretary at war.
They failed to attend, though the process had been duly
served on them. A motion was made to issue an attach-
ment against them for their contempt, on various
grounds explained by his counsel. The court differed in
opinion. One of them (I believe Judge Patterson), was
of opinion that a rule to show cause why an attachment
should not be issued against them, ought to be granted.
But it is unnecessary to dwell on this point, as the gen-
tlemen on the other side took no notice of it. In every
point of view, therefore, our motion for the attachment
is sustainable, and I pray the court to award it.

Mr. Hay. I will set Mr. Wickham right as to one
fact. He had attended so much to what he was going to
say himself, that "he did not attend to what we had said.
Mr. Mac Rae did press the objection, and he was an-



374 TRIAL OF AARON BURR.

swered by Mr. Botts. My own opinion, however, is.
that the power of the court to attach is commensurate
with its process ; and that those gentlemen who were
summoned would be liable to an attachment for not
attending. I incidentally admitted the doctrine.

Mr. Martin. I shall make some few observations in
addition to what has been said by the gentleman who
preceded me. I shall endeavor to show that it was a
military transaction from the beginning, till the arrival
of Mr. Knox at this place ; and that its direct tendency
has been to prevent justice. Let us examine the rights
of parties in a court of justice, and the cause as between
man and man. Each man has a right to compel the at-
tendance of witnesses, to give evidence in support or
defense of his rights, in any cause depending therein ;
one party has no more right than another to compel the
attendance of witnesses. How is the law in this respect,
as between the United States and individuals accused of
crimes ? Suppose a person 'charged with an offense is
arrested : the magistrate before whom he is brought is
to hear the statement of the United States, and of the
prisoner, and to examine the witnesses brought before
him for the purpose of determining whether the prisoner
ought to be committed or not. He is then to bind the
witnesses in a recognizance to appear before the proper
tribunal, at the time appointed for the trial of the pris-
oner. But if a witness refuse to enter into such recogniz-
ance, he is to be committed to custody till the time of
trial, in order to secure his evidence. But this can only
be done by the examining magistrate ; and this is all
that can be done by the United States, with respect to
the witnesses who happen to be present at the examina-
tion. But if the United States wish to have the privi-
lege of further testimony, they are to apply to that
court of justice, before which the trial is to be had, for
subpoenas. These subpoenas must issue, be served, and
returned executed. After which, if they fail to appear
on the return-day, an attachment may be issued against
them. This is the whole process in behalf of the
United States. How is the defendant to get his evi-
dence? His privileges are the same. He is to send
subpoenas in like manner for his witnesses; -and if they



MOTION FOR AN ATTACHMENT. 375

do not attend after they are summoned, they are to be
attached. They stand, in point of law, on equal terms;
but the United States have superior advantages over
the defendant, if they be compelled to resort to the
same .means of enforcing obedience. The power and
influence of the United States command much greater
diligence and alacrity on the part of the officers who
are to execute the process, than the means of any in-
dividual, laboring under the disadvantage of a public
prosecution, can possibly procure. Whatever means are
illegally used to procure witnesses for the United States,
prevent the stream of justice from flowing purely ; it is as
much an interference with the equal administration of
justice, as it is by illegal means to keep a witness away
from the court. The law only ought to be resorted to
on the part of the government and on the part of the
prisoner ; and it is as inconsistent with the law, that
testimony should be brought by coercion, as that it
should be illegally kept away. It is an act injurious to
the prisoner, and if we examine, which is the most op-
pressive and destructive to personal rights, we shall find,
perhaps, that the former is more so than the latter. It
is said to be " a singular case." It is, indeed, a singular
case. I think, on my conscience, that such a case was
never heard of before ; and that such pains were never
taken to destroy a person who- was charged with a crime.
In addition to the means directly used by the govern-
ment, many persons in order to ingratiate themselves
with it, have used all the efforts in their power for the
attainment of their object.

The secretary at war wrote a letter to Lieutenant
Gaines, who was the commander of a fort, directing him
to quit it and execute this business. It was a military
command from the secretary at war, ordering him to un-
dertake a military journey for civil purposes ; to go to
General Wilkinson ; to deliver him a letter ; to serve
subpoenas, after filing up the names of the witnesses
which he should point out ; to obey the instructions of
the attorney-general, and then to come to Virginia. It
was by a military command that he received and exe-
cuted the subpoenas. It was by a military command that
he was to summon himself, and pbey the instructions 01



376 TRIAL OF AARON BURR.

the attorney-general at New Orleans. Did he serve the
subpoenas as a civil officer, or in obedience to the orders
of the secretary at war? Did he receive information and
directions from the attorney-general at New Orleans, as
a civil officer, or pursuant to the directions of the secre-
tary at war? By whose orders did he quit his garrison ?
To whom was he referred ? To the same person to whom
General Wilkinson was referred. Who is this attorney-
general ? A man probably of respectability, but ready
to be displaced unless he obeyed the government, and
assisted in facilitating to the means of causing the wit-
nesses to be brought hither.

General Wilkinson in the next place was to fill up the
names of the witnesses. There have been complaints
against Mr. Jackson for taking affidavits, but he did not
compel men to give testimony ; that was General Wilk-
inson's province at New Orleans. He was to find out
who were witnesses, and fill up the blanks in the sub-
poenas with their names. Has not Mr. Knox told us that
Hall had a number of printed interrogatories? That he
and Mr. Fort were called on to answer them on oath ?
And that their declining to answer them, was the cause
of sending them to jail ? Knox has further informed us,
that it was on Sunday evening that they were carried be-
fore the magistrate. It is well understood that Sunday
is not a legal day for such purposes. As Knox declined
answering those questions, he was committed that night
to the custody of the sheriff, who was to bring him back
on Monday morning, and to whom he gave security for
his appearance accordingly. Knox says further, that the
next day they appeared and were both interrogated ;
that he answered some of the questions, but with respect
to the other interrogatories, he begged an opportunity
to consult a lawyer, lest he should commit himself. Fort
refused to answer any of them, and both were put into
jail with negroes and felons. It was by the warrant of
the judge, that the sheriff carried him to jail. And for
what reason? Was it because he refused to appear be-
fore this court, to give testimony, or for refusing to
answer the printed interrogatories before him? It was
certainly for the latter. Did the subpoena by which he
was summoned to appear, before this court, require him



MOTION FOR AN ATTACHMENT. 377

to answer interrogatories before that judge ? No, sir, nor
had the judge any legal authority to act he as did.
Afterwards an order was given to the marshal to trans-
port him hither to give evidence.

Let me, in a few words, state the improper manner in
which the government, or its agents, proceeded. Wher-
ever they suspected any person of being able to give in-
formation, they carried him before a magistrate, and
forced him to give testimony, all on one side ; and wickedly
interfered with the purity of the stream of justice.
What, sir, would a court of justice permit ex parte testi-
mony to be read ? A witness, who can give testimony
on the side of the defendant, and for that reason does
not suit their purpose, is passed and never heard. They
take the evidence for the prosecution in such a manner
as they think proper, and designedly trammel and shackle
the witnesses so as to be bound by their own- ex parte
testimony, when confronted with it on their examination
in court. I heard one of the gentlemen, who prosecute,
(Mr. Wirt) the other day, with great delight,'"expatiate
on the nature of ex parte evidence. He made a most
eloquent and correct speech, to prove that such evidence
is not dictated by the witness, but by the person who
takes the depositions, and that it ought not to be trusted.
If ex parte testimony be so improper, when only a motion
is made, or when trivial collateral points are discussed,
how much more improper must such testimony be in an
all-important case, where the honor, reputation, and life
of an individual are at stake ? Was it for the sake of the
government that General Wilkinson did all this ? I will
admit, that holding an important and lucrative office
under the government, he might think that he would
retain his present advantages and obtain future favor by
this conduct. But this was not his only motive. He
had everything at stake himself. He was most deeply
interested. All those acts of tyranny and oppression,
which he committed; the violation of the constitution,
the prostration of the judiciary, the arbitrary imprison-
ment and transportation of individuals are to be justified
by such testimony against the gentleman for whom I am
now concerned. Would he not, when thus interested,
procure testimony in so garbled a state, that he would be



3/5 TRIAL OF AARON BURR.

able to prevent the disclosure of the whole truth on the
cross-examination of the witnesses ?

Then, sir, having shown that all these acts had a ten-
dency to obstruct and divert the pure stream of justice,
let us see what were the immediate and direct acts of
General Wilkinson. He invites Knox to his own house.
Sergeant Dunbaugh told him that he had invited him.
Dunbaugh was surprised that this great god of New Or-
leans, who trampled on their rights, and who confined and
transported suspected persons, should condescend to
converse with such a man as Knox. He thought that it
would be an intrusion for such a man as Knox to approach
so august and sacred a presence. Knox at first declines
going: but afterwards goes. Wilkinson invites him to
take a seat, and began by asking him if he knew Dun-
baugh ; not that he really wished to know anything
about Dunbaugh, whom he already knew well, and con-
cerning whom he knew it was probable that Knox knew
nothing; but he used it as an introduction. He then
proceeded in an insinuating manner, about his coming
down the river. "Have you got your money yet?"
"No." "How much is due you ?" "One hundred, or
one hundred and fifty dollars." " Well I can oblige you
with as much money myself." Kind, affectionate man !
What was all this for? To make interest with Knox,
and to induce him tp favor his views. " Well, what did
you know in all your trip coming down ?" Knox an-
swered, that this was not the business he came on. He
wants Knox to show him all he knew, and offers him one
hundred or one hundred and fifty dollars as a bribe. It
was a direct attack on the honesty of the man ; to be
sure, it was done very smoothly, as General Wilkinson
does everything, when he chooses. A charming oppor-
tunity of getting one hundred and fifty dollars, for only
telling a few lies!

Mr. Mac Rae. I hope the gentlemen does not mean
to insinuate that General Wilkinson solicited him to
say an untruth ; there is no evidence whatsoever to that
effect.

Mr. Martin. I state facts, and insist that its direct
tendency was to get him to swear to what was untrue.
I do not say, that General Wilkinson said, in downright



MOTION FOR AN ATTACHMENT. 379

plain terms, " I will give you one hundred and fifty dol-
lars for telling what is untrue," but that the direct tend-
ency of his conduct was, to induce him to swear to a
falsehood, if he were capable of such baseness; and
Knox declares, that the offer was made in such a manner,
that he considered it as a bribe. He begins again to ask
him about his affairs; he takes pen, ink, and paper, and
notes down what he said ; but so differently from the real
meaning of Knox, that he disapproved of it, and would
not proceed further.

The next thing we hear is, that he receives subpoenas,
to fill up the names of the witnesses. That he requests
Lieutenant Gaines to find out Knox and summon him ;
and that he did summon him under a military order.
When summoned, did Knox attempt to refuse to come
hither? He was willing to come, and made no other
objection, except that the notice was too short: that in
his situation, he was not prepared to set off on a journey
of twelve hundred miles, and that he had no money,
but expected to get some soon, and then he would come.
He only refused on account of his want of preparation,
and of money. Was this criminal in poor Knox? Be-
cause he does not wear a sword and epaulets, and wants
the means to enable him to come, he is to be treated as
a felon! (It was not then known that the miiitary chest
was to be drawn upon, for the purpose of hiring wit-
nesses to come.) Why did not General Wilkinson come
sopner? He had been subpoenaed before Knox. Why
did he not obey the process of the court promptly? He
takes his own time; and only comes when he finds it
convenient. Was there any attachment sent against
him after his great delay? The court, grand jury, and
all of us, must wait from day to day to suit his conveni-
ence and pleasure; but poor Knox, because his conveni-
ence was to be a little attended to, was treated like a
felon, thrown into jail, with negroes and criminals; from



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 36 of 64)