Aaron Burr.

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

. (page 37 of 64)
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whence he is sent on board a prison-ship, as soon as it is
ready to sail, and brought hither by force. All these are
General Wilkinson's acts. He filled up the subpoena
with Knox's name, and therefore caused him to be sum-
moned. Here there is a chasm in the chain of the evi-
dence ; but it is easily supplied. We find him, in tbe



380 TRIAL OF AARON BURR.

next place, in the hands of the sheriff. How he came
into that situation is not absolutely certain ; but no per-
son who hears me can doubt, that it was by General
Wilkinson's contrivance; as also that he was carried on
Sunday before Judge Hall, who found him in the hands
of the sheriff, and the next day put him into jail, because
he refused to answer the printed interrogatories. Gen-
eral Wilkinson applies to Judge Hall, to know how to
compel Knox to this court. The answer was, that some
person must make an affidavit, that he was a material
witness for the United States; and this affidavit is made
by General Wilkinson. The very man who is endeavor-
ing to bring him by force is the person who does the
act, that was said to be necessary to carry that purpose
into effect.

It is said, that General Wilkinson directed Mr. Gaines
to consult the attorney-general and some other lawyer.
The attorney-general is the person .whom General Dear-
borne, the secretary at war, directed Gaines to obey.
The other lawyer consulted, is Mr. Duncan, General
Wilkinson's aide-de-camp ; who marched before him when
he went into a court of justice and bade defiance to the
civil government; insulted and resisted the judicial
authority of his country, and placed the laws at the feet
of the military. Mr. Gaines found Knox in jail among
thieves, felons, and negroes, and placed under a guard.
It is said, that Gaines took out Knox in his civil garb,
and acted as a deputy-marshal; but in truth his military
garb hit it all. The gentlemen express doubts wheYi-
ever rights are to be supported, but on all other occa-
sions, they entertain no doubts at all ; indeed I was
astonished, that they did not get up and say, it was the
clearest case in the world, that the commitment of Knox
was legal. We know who wanted to bring him to this
place. It is said, that on the subject of acting as deputy-
marshal, Gaines had no previous communication with
General Wilkinson. I believe it, because Gaines says so.
But the marshal had given a deputation to Gaines for
the very purpose of bringing Knox to this place ; and
therefore it is reasonable to presume, that it was contrived
by Wilkinson. They say that a deputy is not obliged to
give bond ; but I say, that in the first place, a deputy



MOTION FOR AN ATTACHMENT. 381

marshal is bound to give a bond for the faithful perform-
ance of the duties of his office, and in the next place, to
take the same oath that the marshal takes. It is re-
quired by the act of Congress (see Graydon's Digest of
of the Laws, p. 247), that before a deputy marshal acts,
he shall take the same oath with his principal, and must
give bond. Gaines was unwilling to do it himself, and
he was informed that he might do it by another. Now
no principle is more clear, than that a deputy can not
make a deputy, and this act being performed by Dun-
baugh was therefore illegal. But it is said that there
was no collusion, but, on the contrary, a variance between
Wilkinson and Hall. This was the strongest reason in
the world to make Hall dread to give Wilkinson offense ;
a man, who but a short time before came into a court of
justice and looked proudly around to the court, insulted
the judges, set at defiance the writ of habeas corpus, and
told them, that every man whom he suspected, he would
take up and transport in like manner as those, whom he
refused to release in obedience to the writ ; and denounced
two gentlemen of the bar as traitors to their country,
because he knew that they were the most able and de-
termined to oppose his military usurpation. Judge Hall
had, theref6re, great reason to dread his displeasure, and
a repetition of the same treatment.

Now let us see how this poor fellow got out of jail.
It was by a deputation by deputy Gaines to Sergeant
Dunbaugh. The counsel for the prosecution examined
the order in court, and they say that Mr. Gaines did not
sign it in his military, but in his civil character as deputy-
marshal, because he did nor sign himself " captain " at
the bottom. The order to Dunbaugh is not signed by
him as deputy-marshal ; on the contrary, it command-
ed him, " You are hereby requested and commanded to
take, &c.," not " you will oblige me by taking, &c." It
is addressed " to Sergeant Dunbaugh," and it commands
him, and being from Captain Gaines to him as sergeant,
it must be in his military character. The order author-
ized and commanded him to take Knox out of jail and
and carry him on board the vessel. If ever there were a
military order in the world, this is one. Let us examine
the civil and military character blended. As deputy-



382 TRIAL OF AARON EURR.

marshal, General Wilkinson had no right to order Gaines
to do anything; he was as free from his authority as I
am. As a citizen of the world, he had no right to order
him, except he chose to exercise an illegal power. Dun-
baugh was as free, as a citizen, from the authority of
Gaines in his character of lieutenant, as any other citizen
of the United States ; and, as a -sergeant, he was as free
from his authority as deputy-marshal, as I am (and God
knows what I should have been if I had been then at
New Orleans) ; and yet Lieutenant Gaines told us, that
he was so much under the command and in the power 01
Wilkinson, that if he had ordered him to put Knox in
irons, he would have done it. What sort of civil author-
ity was it, by which a military officer was employed to
bring the witness to this court, and that officer bound to
put him in irons, if his general ordered it' Was it not
under that authority that he was brought round without
a shirt, except a borrowed one? These are the methods
by which testimony is to be obtained ! Instead of using
the legal means of subpoena and attachment to obtain
evidence, witnesses are thus illegally forced to come and
give testimony in a court of justice ! Has not this a
direct tendency to destroy the purity of trials?

But it is said, that this court has no right 'to take cog-
nizance of the offense, because it happened at New Or-
leans. If General Wilkinson, after having committed this
offense, had not come hfther, this court could punish him,
the first time it could find him within its jurisdiction, for
affecting a cause depending here. His interfering with
the pure principles of the administration of justice was a
contempt of the court. It is a principle of law, that every
interference with the administration of justice is a con-
tempt of the court, and punishable wherever its process
can reach. Why is it improper and punishable by at-
tachment to insult a judge sitting in court ? Because it
tends to intimidate him and prevent an impartial judg-
ment. Why are publications in newspapers concerning
any cause depending in a court prohibited by law ?
This has been lately done in this very place. Because
it tends to make impressions unfavorable to one of the
parties, and its immediate tendency is, to obstruct the
pure sources and channels of justice. Most of these



MOTION FOR AN ATTACHMENT. 383

things had happened at New Orleans ; and the offense
was incipient there, but was not completed till they ar-
rived here. It was a continued act. Knox wished, but
was not permitted, to come on shore to get clothes, and
not to be brought into a court of justice like a dirty
beast.

But Sergeant Dunbaugh went on shore with him, con-
fessedly to prevent him from missing his way, but in
reality because they did not choose to trust him alone ;
so that he still was confined, for they would not trust him
by himself. The conduct of General Wilkinson in the
first movement was most artful. He asks him, " Why,
Mr. Knox, are you not afraid to appear before me?"
Why should he be afraid of him, unless he referred to his
military despotism ? for he had nothing to do with him ;
and as to his being with Mr. Burr, it was the civil magis-
trate that he should have been afraid of; he could not
be afraid of Wilkinson, for anything of this kind ; but he
might fear to be imprisoned and transported like others,
contrary to law and justice.

But the gentleman has said that there was no danger
in the union of the civil with the military character in
one person ; and asks us if the president of the United
States have not those powers blended in him? What
civil authority has the president ? It is much circum-
scribed. He must apply to a magistrate before he can
arrest any person suspected of any crime. He is not a
conservator of the peace, though he is commander-in-
chief of all our troops (which are not many). He has
nothing to do with the civil, that is the judicial author-
ity; yet this is the inference, that the civil and military
authority were united in the president.

We have been told by the gentlemen that " the court
had shown great indulgence towards us, lest it should
be censured, and not for the sake of doing justice." I
took it down from his mouth as he spoke.

Mr. Mac Rae denied positively that he had ever said
so.

Mr. Martin insisted that he had taken it down from his
mouth as he had spoken the words.

Mr. Mac Rae replied that he had taken it from his own
head.



384 TRIAL OF AARON BURR.

Mr. Martin. I dare say the gentleman has forgotten
it ; his mind having been occupied by great things ; by
General Wilkinson. Sir, he said that great indulgence
had been granted to Mr. Burr, for which he compli-
mented the court. I wonder if he will recollect another
thing that he said, that we wished to imprison all the
people for the sake of Aaron Burr, while he was stalk-
ing through the streets. I can not help congratulating
the gentleman, that he may now walk at large, with-
out having his eyes offended by seeing Aaron Burr at
liberty.

But the gentleman said that unusual mildness had
been shown to Mr. Burr. Persons have been tried for
treason before in the United States. John Fries was
tried before that Jeffries, Samuel Chase. Was the treas-
ury of the United States thrown open and lavished
to employ other counsel in addition to the attorney for
the United States, to prosecute? No persons were then
employed to forestal the truth, by taking ex parte affi-
davits ; and Mr. Rawle, the attorney for the United
States, who prosecuted according to general usage, with-
out any aid, was a man whose mildness and benignity
resembled an angel of mercy; and the United States
sent for no other witnesses than those summoned in the
usual course. But this trial took place " in the days of
terror," under that old dotard, John Adams. Let us con-
trast it with the proceedings under the enlightened reign
of philosophy and philanthropy. Money has been
taken out of the treasury to employ two eminent law-
yers to aid in the prosecution ; compulsive affidavits have
been taken ; affidavit-men employed to take them, and
witnesses brought by force, without relying on the pro-
cess of the court as sufficient.

Mr. Martin concluded by expressing his firm persuasion
that the whole transaction was military, and contrived
by General Wilkinson ; that it was clearly a contempt
of the court, and that he hoped he would be punished
for it by an attachment.

FRIDAY, June 26th, 1807. ,

The court met about nine o'clock, and about ten



MOTION TO REMOVE BURR FROM JAIL. 385

o'clock the grand jury entered, and Mr. Randolph, their
foreman, presented ten indictments, found true bills ; that
is, one indictment for treason, and another for a misde-
meanor against each of the following individuals, viz.
Jonathan Dayton, John Smith, Comfort Tyler, Israel
Smith, and Davis Floyd.

The Chief Justice then made a short address to the
grand jury, expressed in elegant and appropriate terms,
in which he complimented them upon the great patience
and cheerful attention with which they had performed the
arduous and laborious duties in which they had been
so long engaged ; and concluded, by discharging them
from all further attendance.

The court then adjourned till twelve o'clock. As soon
as it met again,

Mr. Botts requested the court to remove Mr. Burr
from the public jail to some comfortable and conve-
nient place of confinement. He depicted in very strong
terms the miserable state of the prison, where he was
then confined. The grounds of this motion are to be
found in the following affidavit made by some of Mr.
Burr's counsel, and laid before the court :

We, who are counsel in the defense of Mr. Burr, at
the suit of the United States, beg leave to represent to
the court, that in pursuance of our duty to him, we
have visited him in his confinement in the city jail;
that we could not avoid remarking the danger which will
most probably result to his health, from the situation,
inconveniences, and circumstances attending the place
of his confinement ; but we can not forbear to declare
our conviction, that we ourselves can not freely and
fully perform what we have undertaken for his defense,
if he remain in the jail aforesaid, deprived, as he is, of a
room to himself; it being scarcely possible for us to
consult with him upon the various necessary occasions
which must occur, from all which we believe, that he will
be deprived of that assistance from counsel, which is
given to him by the constitution of the United States,
unless he be removed.

. " EDMUND RANDOLPH.
" JOHN WICKHAM.

" BENJAMIN BOTTS.
i. 25



386 TRIAL OF AARON BURR.

" Sworn to in open court, by Edmund Randolph, John

Wickhatn, and Benjamin Botts, Esquires. June 25th,

1807.

"WILLIAM MARSHALL, Clerk."

The counsel for the prosecution were perfectly silent
on the motion.

After a long and desultory argument by Mr. Burr's
counsel the court determined that the prisoner should be
removed to his former lodgings near the capitol, pro-
vided they could be made sufficiently strong for his safe
keeping, being of opinion, that the act of congress au-
thorized it, on the foregoing affidavit, to make the order
of removal.

Mr. Latrobe, surveyor of the public buildings of the
United States, was requested to inspect them ; and upon
his report the court passed the following order :

Whereupon, it is ordered, that the marshal of this dis-
trict, do cause the front room of the house now occupied
by Luther Martin Esq., which room has been and is
used as a dining-room, to be prepared for the reception
and safe keeping of Mr. Aaron Burr, by securing the shut-
ters to the windows of the said room by bars, and the
door by a: strong bar or padlock. And that he employ a
guard of seven men to be placed on the floor of the ad-
joining unfinished house, and on the same story with the
before described front room, and also, at the door open-
ing into the said front room ; and upon the marshal's re-
porting it to the court that the said room has been so
fitted up and the guard employed, that then the said
marshal be directed, and he is hereby directed, to remove
to the said room, the body of the said Aaron Burr from
the public jail, there to be by him safely kept.

Mr. Hay. My only wish is, that this prosecution
should be regularly conducted. Is it not the usual prac-
tice to read the indictment first and then move for the
venire?

Mr. Burr. I have been furnished with a copy of the
indictment ; I have perused it ; and I am ready to plead
not guilty to it.

Mr. Wirt. The usual form requires the actual arraign-
ment of the prisoner; however the court may dispense
with it, if it think proper.



BURR PLEADS "NOT GUILTY," 387

Mr. Hay was indifferent about the form, if the law could
be substantially executed. He supposed that a simple
acknowldgement of the prisoner was sufficient without
the customary form of holding up his hand.

Chief Justice. It is enough, if he appear to the in-
dictment, and plead not guilty.

The clerk then read the indictment against Aaron Burr,
for treason against the United States : which specifies
the place of the overt act to be at Blannerhasset's Island,
and the time the loth day of December, 1806.

When he had concluded, Mr. Burr addressed the court :
" I acknowledge myself to be the person named in the
indictment ; I plead not guilty ; and put myself upon my
country for trial."

Mr. Hay then addressed the court on the venire that
was to try the issue between the prisoner and the Uni-
ted States. He said that he thought there was an apparent
incompatibility on this point, between the twenty-ninth
section of the act of congress called the judicial act, and
the eighth amendment to the constitution. It was not
certain that this act was in force. It was passed on the
24th of September, 1789, and it provides that " in cases
punishable with death, the trial shall be had in the county
where the offense was committed, or where that can not
be done without great inconvenience, twelve jurors at
least shall be summoned from thence." Subsequent to
this, a constitutional provision was made, requiring that
the trial shall be held before " an impartial jury of the
state and district, wherein the crime shall have been com-
mitted." If, then, this law be in force, there must be
twelve petit jurymen summoned from Wood county,
which would make it impossible to have the trial at any
early day. Here, then, was the difficulty. The act was
passed in 1789; the amendments to the constitution
were not ratified before the I5th December, 1791. Does,
then, the constitution repeal this law? Had this eighth
amendment formed an original part of the constitution,
no more would have been requisite than an impartial jury
from the state and district where the crime was com-
mited. Had congress passed this law, after the constitu-
tion was thus amended, would it not have been a viola-
tion of it ? Had it, then, any force at this time?



3 88 TRIAL OF AARON BURR.

Mr. Mac Rae quoted the 2d vol. of the act of congress
page 226, section 3, to show that the first law was con-
sidered to be in force, notwithstanding this amendment
to the constitution.

The Chief Justice said, that he had no difficulty on the
subject. He saw no incompatibility between the-law and
the constitution. He had no doubt that the law was
still in force.

Mr. Burr had not considered the question maturely ;
but at present saw no inconsistency between them : how-
ever, as this law was most probably intended for the ben-
fit of the accused, he consented to waive the right.

Mr. Wirt. But there is another consideration, sir:
Can consent, take away the error? In England, in the
celebrated case of Alexander Kinloch, he consented to
draw one of the jurymen, and afterwards pleaded this
error in arrest of judgment. After along and elaborate
argument, the court rejected his plea, though there was
a division among them.

Mr. Martin. In that* case (or what is the same, Wed-
diburn's case) there was but one dissentient judge.

Mr. Hay. In the case of Hardy or Tooke a question
was made, whether the jury must be kept together dur-
ing that long trial? Though the prisoner at the bar con-
sented to waive that right, the court nevertheless instruct-
ed the sheriff to keep them together.

Mr. Botts protested against the delay and inconveni-
ences which would ensue, from summoning the venire
from Wood county.

The Chief Justice believed that the provision was not
absolutely obligatory, if both parties would waive the
right ; but it was as much so, if the United States insisted
upon the right, as if the prisoner himself had done so.
If the United States insisted upon its execution, the law
must be executed, unless there were sufficient evidence
to satisfy the court, that such a measure would violate
the amendment to the constitution, which requires a
trial to be held by an impartial jury of the state and dis-
trict ; unless both sides therefore consented, it was his
opinion that the court was bound by this law.

Mr. Hay said, that he felt no disposition to delay the
trial; but he could not think of .pledging himself to such



SUMMONING A VENIRE. 389

a measure without due deliberation. He would consult
with the gentlemen associated with him on this point,
and would inform the court of the result.

The counsel for the prosecution then retired from the
bar, and after a few minutes' consultation returned. Mr.
Hay informed the court, that they could not assume the
responsibility of consenting to such a proposition ; the
law seemed to be imperative in its language, "twelve petit
jurors at least shall be summoned." He must therefore
request the court to direct a venire of twelve men at least,
to be summoned from Wood county.

The Chief Justice inquired what number should be
summoned ? Different numbers were named, and there
appeared to have been a great difference in the practice.
The common practice required forty-eight ; and cases
were cited, where not less than sixty, or seventy-two ju-
rors had been summoned.

The court finally decided thafcthe entry should be made
for a venire of forty-eight jurors; twelve of whom, at
least, were to be summoned from Wood county.

A long conversation ensued upon the time when this
process was to be made returnable ; or in other words,
when the trial-in-chief was to commence. Some con-
tended that twenty days would be sufficient to summon
the venire from Wood county ; others, that thirty-five
would be necessary. The general opinion seemed to be
in favor of an adjournment till the first Monday in August.

The Chief Justice said that he would have preferred
the shortest possible day in consideration of the expense
and inconvenience which would result from the delay ;
unless, indeed, more important circumstances should
have recommended a longer period ; such as the necessity
and advantage of obtaining witnesses from different parts
of the country. No time was determined upon. The
decision was postponed until to-morrow. The orders
were to be made out for summoning a venire, and the
time of the return to be left blank and filled up to-
morrow.

Mr. Hay informed the court that the clerk was doubt-
ful whether the parties last indicted, should be brought
before the court by a capias or a summons. He should
^ow move for a capias.



390 TRIAL OF AARON JB URR.

The Chief Justice replied there could be no diffi-
culty on the subject, for that a capias must certainly
issue.

SATURDAY, June 2/th, 1807.

The Chief Justice delivered the following opinion on
the motion, for an attachment against General Wilkin-
son :

The motion now under consideration was heard at
this time, because it was alleged to be founded on a fact
which might affect the justice of the case in which the
court is about to be engaged, and because, while the bills
were depending before the grand jury, the court might,
without impeding the progress of the business, examine
into the complaint which has been made..

The motion is to attach General Wilkinson for a con-
tempt of this court, by obstructing the fair course of jus-
tice, with regard to a prosecution depending before it.
In support of this charge, has been offered the testimony
of Mr. Knox, who states a conversation between General
Wilkinson and himself, previous to his being served with
a subpoena, the object of which was to extract from him
whatever information he might possess respecting the ex-
pedition which was the subject of inquiry in this court ;
and who states also, that he was afterwards summoned
before Judge Hall, who examined him upon inter-
rogatories, and committed him to jail, whence he was
taken by order from the deputy marshal, who was a mil-
itary, as well as a civil officer, and put on board the Re-
venge, in which General Wilkinson sailed, for the pur-
pose of being brought from New Orleans to Richmond.

That unfair practices towards a witness who was to
give testimony in this court, or oppression under color
of its process although those practices and that oppres-
sion were acted in another district would be punishable
in the mode now suggested, provided the person who
had acted therein came within the jurisdiction of the
court, is a position which the court is not disposed to
controvert ; but it is also believed that this mode of pun-
ishment ought not to be adopted, unless the deviation
from law could be clearly attached to the person against



MOTION FOR ATTACHMENT DENIED. 391

whom the motion was made, and unless the deviation
were intentional, or unless the course of judicial pro-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 37 of 64)