Aaron Burr.

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

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ceeding were or might be so affected by it, as to make a
punishment in this mode obviously conductive to a fair
and correct administration of justice.

The conversation which took place between General
Wilkinson and the witness, on the arrival of the latter
in New Orleans, was manifestly held with the intention
of drawing from him any information which he might
possess, relative to the expedition which was then the
subject of inquiry. In this intention, there was nothing
unlawful. Government and those who represent it, may
justifiably and laudably use means to obtain voluntary
communications, provided those means be not such as
might tempt the person making them, to give an im-
proper coloring to his repesentations, which might after-
wards adhere to them, when repeated in court. The ad-
dress stated to have been employed, the condescension
and regard with which the witness was treated, are not
said by himself to have been accompanied with any in-
dications of a desire to draw from him more than the
'truth. The offer of money, if with a view to corrupt,
could not be too severely reprehended. It is certainly a
dangerous species of communication between those who
are searching for testimony, and the person from whom
it is expected. But in this case, the court can not con-
template the offer as being made with immoral views.
The witness had a right to demand from those he was
expected to accuse, a small sum of money sufficient to
subsist him on his return to his home. He was asked
whether, on receiving this sum, his objections to giving
testimony would be removed. This was certainly a deli-
cate question, but it might be asked without improper
motives, and it was pressed no further. This is not
shown to be an attempt to contaminate the source of
justice, and a consequent contempt of the court, in
which it is administered.

The imprisonment of Mr. Knox, and the order for
conveying him from New Orleans to Richmond were the
acts of Judge Hall. Whether his proceedings were legal
or illegal, they are not shown to have been influenced
by General Wilkinson, and this court can not presume


such to have been the fact : General Wilkinson therefore
is not responsible for them. They were founded, it is
true, on an affidavit made by him ; but there was no
impropriety in making this affidavit, and it remained
with the judge to decide, what the law would authorize
in the case.

All the subsequent proceedings were directed by the
civil authority. The agents who executed the orders of
the judge were indeed military men, who most probably
would not have disobeyed the commander-in-chief ; but
that officer is not responsible, in this way, for having
failed to interpose his authority, in order to prevent the
execution of the orders of the judge, even if those or-
ders ought not to have been given.

Upon a full view of the subject, the case appears to
have been this: General Wilkinson was desirous that
the testimony of the witness should be obtained ; and
aware of the accusations which had before been brought
against him, for the use he had made of the military
power, he was desirous of obtaining the testimony by
lawful means, and therefore referred the subject to a
judge of the territory, under whose orders all subseqnent
proceedings were taken. Whether the judge did or did
not transcend the limits prescribed by law, those minis-
terial officers who obeyed his orders, can not be sup-
posed to have acted with a knowledge that he had mis-
taken his power. Should it be admitted that this would
be no defense for them in an action to obtain compensa-
tion for the injury, yet it furnishes sufficient evidence
that no contempt was intended to this court by General
Wilkinson, that he has not been guilty of any intentional
abuse of its process, or of any oppression in the manner
of executing it.

It is said that Captain Gaines, the gentleman whom
the marshal appointed as his deputy for this particular
purpose, had not taken the oath of office and was there-
fore not legally qualified to act in that character. How
ever correct this observation may be in itself, it does not
appear to the court to justify an attachment against
General Wilkinson. The person who sees in the posses-
sion of another, a commission as deputy-marshal, and
sees th^t others are acting under that commission, ought


not to be subjected to a process of contempt for having
made no inquiries respecting the oath which the law re-
quires to be taken.

The attachment will not be awarded, because General
Wilkinson can not be considered as having controlled or
influenced the conduct of the civil magistrate, and be-
cause in this transaction his intention appears to have
been not to violate the laws. In such a case, where an
attachment does not seem to be absolutely required by
the justice due to the particular individual against whom
the prosecution is depending, the court is more inclined
to leave the parties to the ordinary course of law, than
to employ the extraordinary powers which are given for
the purpose of preserving the administration of justice
in that purity which ought to be so universally desired.

The court made the following order on the postpone-
ment of the trial :

Aaron Burr, late of the city of New York, and state
of New York, attorney-at-law, who stands indicted for
treason, was this day brought to the bar in custody of
the marshal of this district, and thereof arraigned, and
pleaded, Not guilty to the indictment, and for his trial
put himself upon God and the country ; whereupon he is
remanded to jail. And as the trial of the said Aaron
Burr can not be had in the county of Wood, where the
offense is alleged to have been committed, without
great inconvenience, it is ordered that a venire facias
issue, to the marshal of this district to be directed, com-
manding him to summon forty-eight fit persons qualified
as the law directs, twelve of whom, from the said county
of Wood, to appear here on the third day of August next,
as a venire for the trial of the said Burr.

MONDAY, 29th June.

Mr. Hay laid the following order of the executive
council before the court :

IN COUNCIL, June 29th, 1807.

The board being informed that an affidavit has been
ed in th.2 circuit court of the United States, for the


Virginia district, which states that the jail for the county
of Henrico and city of Richmond is inconvenient and un-
healthy, and so crowded with state offenders and debtors
that there are no private apartments therein, for the
reception of persons charged with offenses against the
laws of the United States: it is therefore advised that
the governor be requested to tender the said court
(through the federal attorney of the district of Virginia)
apartments in the third story of the public jail and peni-
tentiary house for the reception of such persons as shall
be directed under the authority of the United States to
be confined therein.

Extract from the Minutes.
DANIEL L. HYLTON, Clerk of the Council.

The following was the order of the court on this sub-
ject :

" Which tender the court doth accept for the purpose
above mentioned."

The final decision of the motion to commit Aaron Burr
to the penitentiary was postponed till to-morrow.

TUESDAY, Jui ^o.

After the court met, the me ?n to commit Aaron
Burr to the penitentiary was rene /ed.

It was objected to by his counsel on the ground (and
an affidavit was made by them to the same effect) that in
so important a case, it was essentially necessary for the
most uninterrupted intercourse to subsist between the
prisoner and his counsel ; but that the distance of the
penitentiary, combined with their own professional avo-
cations, would necessarily narrow and interrupt this inter-
course. It was also said, that by particular regulations
of the penitentiary, the custody of the prisoner would be
transferred from the marshal to the superintendent ; and
that the communications of the prisoner with his cou"
sel would be limited to the very same short period whic
was allowed to the other iitants ; that is, from eleven
to one o'clock.

The attorney for the Ur 'ed States repelled these ob-


The Chief Justice said, when there was a public jail not
unreasonably distant or unfit for the reception of the
prisoner, and when the court was called upon on the part
of the United States to commit a prisoner to its keeping,
that he conceived himself bound to comply with the re-
quisition ; that when he had given the order for his
removal from the jail to his own lodgings, it was under
an expectation that the trial would be prosecuted imme-
diately, and that the intercourse between the prisoner
and his counsel would be necessarily incessant ; but as
a postponement had taken place, such an intercourse
would not be absolutely necessary ; under such circum-
stances, therefore, he should direct the removal of the
prisoner to the penitentiary, if he were still to continue
in the possession of the marshal, and if his counsel were
to have a free and uninterrupted access to him.

Some difficulty having thus occurred on these points,
the executive counsel was immediately convened. In a
short time the following letter was submitted to the

COUNCIL CHAMBER, June 3oth, 1807.

In pursuance of aft dvice of the counsel of state, I beg
leave through you, to ^iform the circuit court of the Uni-
ted States now sitting [hat any persons who may be con-
fined in the jail and penitentiary house, on the part of
the United States, will be considered as in the custody, and
under the sole control of the marshal of the district; that
he will have authoirty to admit any person or persons to
visit the confined that he may think proper ; and that he
will be authorized to select for the purposes aforesaid, any
apartment in the penitentiary now unoccupied, that he
may deem the most conducive to safety, health, and con-

I am, with great respect,

Sir, your obedient servant,
" George Hay, Esquire. WM. H. CABELL.

The court then came to" 'le following order:
In consequence of the 01 made by the executive of
apartments in the third st f y of the penitentiary and
state prison, for persons who may be confined therein


under the authority of the United States, and of the
foregoing letter from the governor of this common-
wealth, it is ordered, on the motion of the attorney for
the United States, that so soon as the apartments in the
third story of the public jail and penitentiary shall be
fit for the reception and safe keeping of Aaron Burr, that
he be removed thereto, and safely kept therein by the
marshal, until the second day of August next, when he
shall be brought back to the prison where he is now
placed, there to be guarded in like manner as at present,
until the further order of the court.


On this day the circuit court of the United States for
the fifth circuit and district of Virginia was held accor-
ding to adjournment.

Present, the Chief Justice of the United States:

George Hay, William Wirt, and Alexander Mac Rae,
Esquires, counsel for the prosecution.

The prisoner was brought into court from his apart-
ment near the Swan Tavern, to which he had been
removed on Saturday.

Edmund Randolph, John Wickham, Benjamin Botts,
John Baker, and Luther Martin, Esquires, appeared as
his counsel.

The court assembled at twelve o'clock. An immense
concourse of citizens attended to witness the proceedings
of this important trial.

Mr. Hay observed that he could take no steps in this
business until he had ascertained whether the witnesses
summmoned on the part of the United States were
present ; he, therefore, requested that their names
might be called over ; they were more than one hundred
in number. Their names were accordingly called in the
following order :

* Thomas Truxtun, * Stephen Decatur, * Benjamin
Stoddert, * William Eaton, * William Duane, * Erick


Bollman, * Peter Taylor, * Jacob Allbright, * Charles
Willie, * John Graham, * Samuel Swartvvout, *Julien
Dupiestre, * P. H. M. Prevost, Israel Miller, * Samuel
Skounten, * George Morgan, * John Morgan, * Thomas
Morgan, * Nicholas Perkins, * Robert Spence, * George
Harris, * Cyrus Jones, * Thomas Peterkin, Elias Glover,

* Simeon Poole,. * Dudley Woodbridge, * David C.
Wallace, * Edmund B.Dana, James Reid, *John G.
Henderson, * Alexander Henderson, *Hugh Phelps,
Jacob Dunbaugh, * Chandler Lindsley, * John Mulhollon,

* James Knox, * William Love, David Fisk, * Thomas
Hartley, * Stephen S. Welch, James Kinney, * Samuel
Moxley, * Edmund P. Gaines, * Ambrose D. Smith,
George Peters, Abner L. Duncan, Lewis Kerr, John A.
Fort, * Benjamin H. Latrobe, Cowles Meade, Thomas
Fitzpatrick, Thomas Butler, Robert A. New, Thomas T.
Davis, Silas Dinsmore, Owen Aston, William Davis, E.
Kibby, Theodore Brightwell, John Callier, Dr. Bennett,
Earl Sproat, Robert Wallace, Walter Putnam, John
Dana, Alexander Ralston, Mrs. Vanhorne, Henry
Jacobs, Ransome Peale, Hamlin Hicks, Phelow Woos-
ter, John Blair, James McDowell, Samuel N. Luckett,
Stockley D. Hayes, Samuel W. Butler, Walter C.
Davidson, John Barry, Thomas H. Gushing, Nathaniel
Evans, Jacob Jackson, William Piatt, William White,
Jerard Brooke, Morgan Nevill, Thomas Callis, Mr. Pet-
erson, Lieutenant Swearingen, Mr. Weaver, Colonel
Osmund, Major M. Porter, J. B. Walback, Mr. Van-
horne, Dr. Carmichael, Dr. Alston, Colonel P. Read,
John Wilkens, Stephen Woolberton, David McKey,
Hugh Allen, William Davis.

[Those were present whose names are printed in
italics ; the rest were absent. Such as have an * pre-
fixed to their names were recognized at the former
meeting of the court. The rest were not. Of course,
all those whose names are placed after that of Benjamin
H. Latrobe, have been subpcenaed since the adjournment
of the court.]

Mr. Hay begged leave to mention that he had no-
thing more to submit to the court this day. There
were many of the witnesses, of whose places of residence
he was ignorant ; several had not appeared ; many had


been merely pointed out to him by the attorney-general
of the United States. He observed, that, therefore, he
had not yet been able to furnish Mr. Burr with a list of
the witnesses, and a statement of the places of their
residence, as the law requires ; that, as many of those
who had been summoned and recognized had failed to
appear, he was not ready to proceed with the trial im-
mediately. He also informed the court that a list of the
venire had been delivered on Saturday to Mr. Burr, but
had since been discovered to be inaccurate. It became,
therefore, necessary (an act of congress having directed
this to be done at least three days before the trial) to
deliver a correct list on this day ; and, of course, the trial
would be postponed until the requisite time had elapsed.

The Chief Justice inquired then to what day it would
be proper to adjourn the court.

Mr. Hay could not positively state by what day he
should be able to prepare his lists.

Mr. Burr observed, that it was not very probable that
he should avail himself of any privileges which he might
derive from any delay which had occurred in not furnish-
ing him wi-th the list of the jurors ; and therefore the
court might adjourn itself to any day which was conveni-
ent to the attorney for the United States. Neither was
it probable, that he should avail himself of any objec-
tions which might be made to any incorrectness in the
names of the jurors, or the places of residence, as stated
in the list ; unless certain circumstances might occur after
the production of the list, on which he ought to found
objections to it.

A short conversation then ensued upon the day of ad-
journment, when Mr. Burr observed, that as it would
seem, in some measure, to depend upon his own consent,
he should not hesitate to consent to an adjournment,
provided it did not extend further than Wednesday. Mr.
Hay had no objection to that day.

Mr. Hay observed, that it might be proper to have the
names of the jury called over, though not to impanel
them at present. It would be premature now to impanel
them, as the opposite counsel had not yet possessed a
sufficient time to examine the list, and as the witnesses
for the United States were not present.


The names of the jurors were accordingly called.

The names of the jurors summoned from Wood coun-
ty to appear before the judges of the United States,
for the fifth circuit in the Virginia district, on the 3d day
of August, 1807, for the trial of Aaron Burr, are

Hezekiah Bucky, Jacob Beeson, James G. Laidly, Wil-
liam Prince. James Henderson, Nimrod Saunders, James
Compton, Thomas Creel, Hamilton Morrison, Anthony
Buckner, Yates S. Conwell, David Creel.

Wood county, district of Virginia,

JOSEPH SCOTT, Marshal, V. D.

List of the petit jurors for May circuit term, 1807, con-

Names of the jurors summoned from the body of the
district of Virginia for the trial of Aaron Burr:

John Horace Upshaw of Essex county, William Pope
of Powhattan, Peyton Randolph of Richmond city, John
Bowe of Hanover, John Roberts of Culpeper, Joshua
Chaffin of Amelia, Jervis Storrs of Henrico, Miles Sel-
den of ditto, Lewis Truehart of Hanover, William Yan-
cey of Pittsylvania, Thomas Prosser of Henrico, John
Staples of Albemarle, Edward C. Standard of Albemarle,
Richard B. Goode of Chesterfield, Nathaniel Selden of
Henrico, *Esme Smock of ditto, William Wardlow of
Richmond city, Richard E. Parker of Westmoreland,
John W. Ellis of Hanover, Thomas Starke of ditto, Wil-
liam B. Chamberlain of Henrico, David Lambert of Rich-
mond city, Randolph Harrison of Cumberland, William
Hoomes of Caroline, Overton Anderson of Richmond
city, Hugh Mercer of Spottsylvania, David Bullock of
Richmond city, Jerman Baker of Cumberland, *Edward
Carrington of Richmond city, Robert Haskins of Ches-
terfield, William R. Fleming of Goochland, George W.
Smith of Richmond city. Armistead T. Mason of Lon-
don, Dabney Minor of Albemarle, William McDaniel of
Stafford, William White of Hanover.

JOSEPH SCOTT, Marshal, V. D.

[The two whose names are marked with an * were ab-
sent : all the rest were present.]

Mr. Hay then requested the marshal to deliver, as
soon as possible, a correct copy of this list to the oppo-
site counsel.


Mr. Peyton Randolph inquired whether this were a
proper opportunity for any man on that panel to state
his objections to the service.

The Chief Justice answered that it would be better to
waive any objections, until the jury were about to be im-

Mr. Hay wished such of the witnesses as had not ap-
peared before, to be recognized as the others had been.
And accordingly Messrs. Duncan, Nevill, M'Dowell, and
Peters, were recognized by the clerk.

The deputy-marshal was then about to adjourn the
court, when Mr. Burr recalled to the recollection of the
court, the motion which he had made, on a former occa-
sion, for a subpoena duces tecum addressed to the presi-
dent of the United States. That motion had been part-
ly complied with. He wished to know of the court,
whether it were not a matter of right for him to obtain a
subpoena duces tecum. If it were not, he should then lay
a specific motion before the court.

The Chief Justice did not believe it to be the practice
in Virginia to obtain such a subpoena upon a mere appli-
cation to the clerk. The motion must be brought before
the court itself.

Mr. Hay said that he would say nothing on this subject,
until he understood the object of the application ; that
if it were to obtain the letter which was not formerly fur-
nished, he would inform the opposite counsel that he
had it now among his papers, and was ready to produce

Mr. Burr. That is one object of the application. An-
other is to obtain a certain communication from General
Eaton to the President of the United States, which is
mentioned in his deposition.

Mr. Hay said that he was not certain, whether he had
that communication, but believed that it was among his
papers. If it were there, he would certainly produce

Mr. Burr. But if, after a search, the gentleman find
that he has not that paper, will he consent out of court,
to issue a'subpcena to the President of the United States,
under the qualification I have mentioned? I wish not
at the present exigency, to derange the affairs of the gov-


ernment, or to demand the presence of the executive
officers at this place. All that I want are certain

Mr. Hay said that he could not consent to it ; he
would rather that a regular application should be made
for it to the court.

Mr. Burr. Then, sir, I shall move for a subpoena duces
tecum, to the President of the United States, directing
him to attend with certain papers. This subpoena will
issue as in the former instance. I shall furnish the clerk
with the necessary specification of the paper which I

WEDNESDAY, August 5th, 1807.

Present, John Marshall, chief justice of the United

Mr. Hay requested that the names of the witnesses
might be called over, who had not appeared on Monday,
and of whose arrival he was not yet informed.

The following witnesses answered to their names :
Charles Willie, John Graham, Samuel Swartwout, Julien
Dupiestre, P. H. M. Prevost, Israel Miller, William Eaton,
George Morgan, Cyrus Jones, Simeon Poole, Dudley
Woodbridge, John G. Henderson, Samuel Moxley, Am-
brose D. Smith, John A. Fort, and Hugh Allen.

The names of the witnesses being called over, Mr. Hay
observed that the court would perceive that the number
of the witnesses attending was greater than it had been
on Monday; that he presumed the whole of them would
be here in a few days ; that he had no doubt they would
go into the trial during the present term ; but that he
could not now furnish the accused with such a list of the
witnesses as was required by law ; for though he knew
their surnames, yet he was ignorant of the Christian
names of many, and their places of residence. He
was not certain to what day the court might proper-
ly adjourn.

Chief Justice. It will make no sort of difference to
the court, whether it adjourn from day to day, or to a
certain day.

After a short conversation between the counsel on both


sides, it was agreed that a list should be furnished of the
witnesses, and of their places of abode, so far as they had
been ascertained, and that a postponement should take
place until Friday.

Mr. Hay proposed an arrangement, as to the mode of
conducting the trial, the object of which was to save time.
He said that the course pursued in Great Britain on such
occasions, is for the counsel for the prosecution to open
his case and examine all his witnesses, before anything
is said on the other side: for the prisoner's counsel, after-
wards, to state the case on his part : to proceed to ex-
amine his witnesses, and to make such observations upon
the whole of the testimony as he should think proper ;
and for the counsel for the prosetution to terminate the
arguments by a reply. This, he said, was a convenient
and expeditious method. But, in Virginia, the practice
is as follows: the attorney for the United States, or for
the commonwealth, states the case on the part of the
prosecution, and the counsel for the accused, also makes
a statement on his part, after which the evidence is
gone through on both sides, beginning with the witnesses
against the prisoner. This being done, the counsel for
the prosecution commences the argument, is answered
by the counsel for the prisoner, and then concludes the
debate. Mr. Hay observed, that this mode was much
more tedious than that which prevails in Great Britain ;
and therefore ought particularly to be avoided in con-
ducting the trial of Aaron Burr, in which the number of
counsel employed, and of witnesses to be examined, is so
great, especially as other trials equally tedious are about
to take place Herman Blannerhasset being now in cus-
tody, and Jonathan Dayton known to be in this neigh-

Mr. Wickham wished time to consider the subject, not
being prepared to determine whether the counsel for Mr.
Burr would accede to the proposal; as this was a new
mode of proceeding, to which they were not accustomed,
they wished to consult their client, who, on this day,
was not in court.

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 38 of 64)