Aaron Burr.

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

. (page 39 of 64)
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Mr. Hay said he did not think this a matter of con-
sent ; the court ought to fix the practice.

The Chief Justice observed that it would be better



ADJOURNMENT. 403

to bring on this question on Friday : since gentlemen,
in the meantime, might settle it among themselves; say-
ing, moreover, that he should feel a difficulty in depart-
ing from the settled mode of practice in this country,
though he thought the English mode better than ours.
The best moL,e appeared to him to be this : that the case
should be opened fully by one of the gentlemen on the
part of the United States; then opened fully by one of
the counsel on the other side; that the evidence should
next be gone through, and the whole commented upon
by another of the gentlemen employed by the United
States; who should be answered by the rest of the at-
torneys for Mr. Burr; and one only of the coun-
sel for the United States should conclude the argu-
ment.

This mode was not approved of by Mr. Hay, as there
were to be several trials ; he feared that it would impose
too much labor on the counsel for the prosecution.

Some further conversation passed, but no arrangement
was determined on.

FRIDAY, August 7, 1807.

Present, John Marshall, chief justice of the United
States; and Cyrus Griffin, judge of the district of Vir-
ginia,

The witnesses were again called over, and several who
had not been present before, appeared, and were recog-
nized to attend until discharged by the court.

The counsel for the United States, however, not being
as well prepared to go into the trial, as they expected
to be (many of their witnesses being still absent), the
trial was further postponed and the court adjourned un-
til Monday next, at twelve o'clock.

In the course of this day, a difficulty was suggested
by Major Scott, the marshal of the Virginia district, as
arising out of the order of the court, by virtue of which
Mr. Burr had been removed from the penitentiary house,
to his present lodgings. He stated that he had been
informed from good authority, that the secretary of the
treasury had declared, that he would not allow his
charge of seven dollars per day for the guards employed



404 TRIAL OF AARON BURR.

for the safe-keeping of the prisoner; and, therefore, he
might lose that sum, which he had hitherto been advanc-
ing out of his own pocket.

The Chief Justice declared the firm conviction of the
court, that the order, heretofore made, was legal and
proper; that the payments made in pursuance thereof,
would be sanctioned by the court, and ought to be al-
lowed by the secretary of the treasury. He could not
believe that the secretary would finally disallow those
items in the marshal's account. But as the officer of
the court ought not to be subjected to any risk in obey-
ing its directions ; and, if the secretary should refuse to
allow him a credit for the money paid, the court had no
power to compel him to do so; and the situation of the
marshal was such, that he dared not enter into a contro-
versy with the secretary ; the court was disposed to re-
scind the order, unless some arrangement could be made
by Mr. Burr and his counsel, for the indemnification of
the marshal.

Mr. Burr declared that an offer had already been
made on his part to indemnify the marshal, and that he
was still ready and willing to give him satisfactory
security that the money should be paid him, in case the
secretary of the treasury should refuse to allow the credit.

Some desultory conversation ensued, but nothing
positive was agreed upon ; but it appeared to be under-
stood, that security was to be given to Major Scott, and
that Mr. Burr was to remain in his apartment near the
Swan Tavern.

MONDAY, August loth, 1807.

After the court met, Herman Blannerhasset was
brought into court.

The following gentlemen appeared, and were recog-
nized. Return J. Meigs, Maurice P. Bellnap, Charles

Duvall, James Taylor, Tunis , Bennett Cook, Heze-

kiah Lewis, and G. B. Vanhorne.

Mr. Wirt moved the court to discharge Dr. Wardlaw,
one of the venire. His wife was in extreme danger, and
required the assistance of a sea voyage. The vessel
would sail to-morrow.



IMPANELING THE JURY. 405

Chief Justice. Is the court to understand that there is
no objection to this motion?

Mr. Burr. It the remark be addressed to me, sir, I
can only say, that I shall remain passive. Dr. Wardlaw
'.vas then dismissed.

Mr. Mac Rae also moved the discharge of Mr. Ran-
dolph Harrison, whose extreme indisposition was at-
tested by* a certificate from Dr. Adams. Mr. Harrison
was accordingly dismissed in the same manner.

Mr. Hay moved that Herman Blannerhasset be
arraigned for treason ; which,

Mr. Botts opposed, on the ground that he had not been
furnished with a copy of the indictment three days pre-
viously. After some desultory conversation on this cir-
cumstance,

Mr. Botts requested that Mr. Blannerhasset be recon-
veyed to the penitentiary, as he was extremely indis-
posed, and the heat nearly overpowered him. No op-
position was made, and Mr. Blannerhasset was accordingly
reconducted to his prison.

At Mr. Hay's request, the panel of the jury was called
over by the deputy marshal, and also at Mr. Burr's
request, the list of the witnesses whom he had sub-
poenaed, for the purpose of investigating the qualifica-
tions of some of the venire.

Mr. Hay read a certificate from Dr. Upshaw, stating
that Mr. James Henderson is sick of a bilious fever, and
incapable of attending.

Mr. Mac Rae then read a certificate from Dr. Green-
how, showing that David Bullock, esq., one of the venire
was prevented by indisposition from discharging his
duties. Mr. Bullock was accordingly excused.

The clerk informed Mr. Burr, that he was at liberty to
challenge such of the venire as he might object to.

Mr. Burr begged leave to inform the jurors who were
within hearing, that a great number of them may have
formed and expressed opinions about him, which might
disqualify them from serving on this occasion. He ex-
pected that as they came up, they would discharge the du-
ties of conscientious men, and candidly answer the ques-
tions put to them, and state all their objections against



406 TRIAL OF AARON BURR.

The deputy marshal then summoned first, Hezekiah
Bucky.

Mr. Botts. We challenge you for cause. Have you
ever formed and expressed an opinion about the guilt of
Mr. Burr?

Mr. Bucky. I have not, sir, since I have been sub-
pcenaed.

Question. Had you before ?

Answer. I had formed one before in my own mind.

Mr. Hay wished that the question of the opposite
counsel could assume a more precise and definite form.
If this question were proposed to this man, and to every
other man of-the panel, he would venture to predict that
there could not be a jury selected in the state of Virginia ;
because he did not believe that there was a single man
in the state, qualified to become a juryman, who had not,
in some form or other, made up and declared an opinion
on the conduct of the prisoner. The transactions in the
west had excited universal curiosity ; and there was no
man who had not seen and decided on the documents
relative to them. Do gentlemen contend, that in a
case so peculiarly interesting to all, the mere declaration
of an opinion is sufficient to disqualify a juryman ? A
doctrine of this sort, would at once acquit the prisoner ;
for where is the jury that could try him? Such a doc-
trine amounts to this : that a man need only to do
enough to draw down the public attention upon him, and
he would immediately effect his discharge. Mr. Hay
concluded with a hope, that the question would assume
a more definitive form ; he should not pretend to decide
the form in which it should be proposed, for that was the
province of the court ; it was a privilege to which every
court is entitled ; and one which the court had exercised
in the case of James T. Callender.

Mr. Botts considered it as a misfortune ever to be de-
plored, that in this country, and in this case, there had
been too general an expression of the public sentiment,
and that this generality of opinion would disqualify
many ; but he had never entertained a doubt, until the
gentleman for the prosecution had avowed it, that twelve
men might be found in Virginia, capable of deciding this
question with the strictest impartiality. He still trusted



IMPANELING THE JURY. 407

that the attorney for the United States was mistaken ;
that the catastrophe was not completely fixed : and that
every man in the state had not pledged himself to con-
vict Mr. Burr, whether right or wrong. He was not
present at the trial of James T. Callender ; but all
America had heard the question which was then pro-
pounded to the jurymen ; and that was, whether they had
made up and expressed an opinion respecting the guilt
of the prisoner.

Mr. Hay said that he would put Mr. Botts right as to
matter of fact. The court would recollect that on the
trial of Callender, the question was, not whether the
jurymen had formed and expressed an opinion on that
case generally, but on the subject-matter that was to be
tried, and contained in the indictment. The question,
then, in the present case should be, " Have you formed
and expressed an opinion on the point at issue that is,
whether Aaron Burr be guilty of treason ?" On the trial
of Callender, the court would particularly recollect, that
Mr. John Basset having objected to himself, because he
had read the libelous publication, was actually over-
ruled, because it was not on the book itself, but on the
subject-matter of the indictment, that he was called upon
to say, whether he had ever expressed an opinion.

Mr. Burr declared that there was a material distinction
between that and the present case. Mr. Basset's
acknowledging that he had seen the book did not dis-
qualify him from serving on the jury ; in the same man-
ner, the person who had seen a murder committed, would
not be an incompetent juror in the prosecution for that
crime. But if a man pretended to decide upon the guilt
of a prisoner, upon mere rumor, he would manifest such
a levity and bias of mind, as would effectually disqualify
him. Mr. Bucky, however, has not yet come out com-
pletely with his declarations. Let him be further interro-
gated.

Mr. Hay observed that the question would still be too
general and vague, if it were even to be, " Have you ex-
pressed any opinion on the treason of Aaron Burr?" for
the case stated in the indictment was infinitely more
specific. It was treason in levying war against the United
States at Blannerhasset's island. Unless this particulai



4 o8 TRIAL OF AARON BURR.

allegation be proved, it defeats all the other parts of the
accusation ; and it was probably on this point that the
juror had never made up any opinion.

Mr. Martin contended that it was the duty of every
juryman to come to the trial of any case with the most
perfect impartiality ; and more particularly one where
life and reputation were at stake ; that it was a libel upon
Virginia, a blot upon the whole state, to assert that
twelve men could not be found to decide such a case,
with no other knowledge than what they had picked up
from newspapers : that there was a material distinction
between this and Callender's case ; the libel was a book
in every man's hand ; but does any juryman in the pres-
ent case pretend to know the testimony on which this
charge depends? The gentleman proposes to ask the
juryman, whether he have made up an opinion on Mr.
Burr's treason ? But it is extremely probable that most
of them know not what treason is, and though they may
decide upon the guilt of Mr. Burr, they may be ignorant
whether it come under the name and description of
treason.

Mr. Botts quoted authorities in support of his opinion,
but they are not all inserted here, because the same ques-
tion was afterwards very fully argued, and many author-
ities cited. The trials of Smith and Ogden in New York,
and the opinion of Judge Iredel, on the trial of John
Fries, in Pennsylvania, were particularly referred to.

The Chief Justice observed, that it might save some
altercation, if the court were to deliver its opinion at the
present time ; that it was certainly one of the clearest
principles of natural justice, that a juryman should come
to a trial of a man for life, with a perfect freedom from
previous impressions ; that it was clearly the duty of the
court to obtain, if possible, men free from such bias ; but
that if it were not possible, from the very circumstances
of the case, if rumors had reached and prepossessed
their judgments, still the court was bound to obtain as
large a portion of impartiality as possible ; that this was
not more a principle of natural justice, than a maxim of
the common law, which we have inherited from our fore-
fathers ; that the same right was secured by the consti-
tution of the United States, which entitles every man



IMPANELING THE JURY. 409

under a criminal prosecution, to a fair trial by " an im-
partial jury." Can it be said, however, that any man is
an impartial juryman, who has declared the prisoner to
be guilty and to have deserved punishment? If it be
said that he has made up this opinion, but has not heard
the testimony, such an excuse only makes the case
worse, for if the man have decided upon insufficient tes-
timony, it manifests a bias that completely disqualifies
himself from the functions of a juryman. It is too gen-
eral a question, to ask whether he have any impressions
about Mr. Burr. The impressions may be so light, that
they do not amount to an opinion of guilt ; nor do they
go to the extent of believing, that the prisoner deserves
capital punishment. With respect to Mr. Basset's opin-
ion, it was true he had read " The Prospect before Us; "
and he had declared that is was libel ; but Mr. Basset
had formed no opinion about James T. Callender's being
the author. It was the same principle in the present
case. If a juryman were to declare that the attempt to
achieve the dismemberment of the union was treason, it
would not be a complete objection or disqualification ;
but it would be the application of that crime to a partic-
ular individual ; it would be the fixing it on Aaron Burr
that would disable him from serving in this case, Let
the counsel, then, proceed with the inquiry.

Mr. Botts. Have you said that Mr. Burr was guilty of
treason ?

Mr. Bucky. No. I only declare.d that the man who
acted as Mr. Burr was said to have done, deserved to be
hung.

Question. Did you believe that Mr. Burr was that
man ?

Answer. I did, from what I had heard.

Mr. Hay. I understand, then, that the question pro-
posed in Callender's case is to be overruled ?

Chief Justice. My brother judge does not recollect
whether it particularly went to the indictment or not.

Judge Griffin. I think the question was, "relative to
the matter in issue."

Mr. Hay. The very position that I have laid down.

Chief Justice. The simple question is, whether the
having formed an opinion, not upon the evidence ia



410 TRIAL OF AARON BURR.

court, but upon common rumor, render a man incompe-
tent to decide upon the real testimony of the case?

Mr. Wirt (addressing Mr. Bucky ). Did I understand
you to say that you concluded upon certain rumors you
had heard, that Mr. Burr deserved to be hung?

Mr. Bucky. \ did.

Question. Did you believe these rumors? Answer. I
did.

Question. Would you, if you were a juryman, form
your opinion upon upon such rumors? Answer. Cer-
tainly not.

Mr. Mac Rae. Did you form and express your opinion
upon the question whether an overt act of treason had
been committed at Blannerhassett's island?

Answer. It was upon other rumors, and not upon that,
that I had formed an opinion.

Mr. Martin submitted it to the court, whether he could
be considered an impartial juryman.

The court decided that he ought not to be so consid-
ered, and he was accordingly rejected.

James G. Laidly stated that he had formed and ex-
pressed some opinions unfavorable to Mr. Burr, that he
could not pretend to decide upon the charges in the
indictment, which he had not heard ; that he had princi-
pally taken his opinions from newspaper statements; and
that he had not, as far as he recollected, expressed an
opinion that Mr. Burr deserved hanging; but that his
impression was that he was guilty. He was therefore set
aside.

James Compton being challenged for cause and sworn,
stated that he had formed and expressed an opinion from
hearsay, that Mr. Burr was guilty of treason, and of that
particular treason of which he stood charged, as far as he
understood. He was rejected.

Mr. Burr observed that as gentlemen on the part of the
prosecution had expressed a willingness to have an im-
partial jury, they could not refuse that any juryman
should state all his objections to himself ; and that he had
no doubt, in spite of the contrary assertions which had
been made, that they could get a jury from this panel.

Hamilton Morrison upon being called, said that he
had frequently thought and declared that Mr. Burr was



IMPANELING THE JURY. 411

guilty, if the statements which he had 'heard were true;
that he did not know whether they were so ; but only
thought from the great clamor which had been made that
it might be possible that they were true; that he had
not passed any positive opinion ; nor was he certain
that he had always qualified it by saying, " if these things
were true; " that'he does not recollect to have said that
Mr. Burr ought to be punished, without stating at the
same time, " if he were guilty." Mr. Morrison was sus-
pended for further examination.

Yates S. Conwell had formed and expressed an opinion
from the reports he had heard, that Mr. Burr must be
guilty of high treason. He was accordingly set aside.

Jacob Beeson declared that he had for some time past
formed an opinion, as well from newspaper publications
as from the boats which had been built on the Ohio, that
Mr. Burr was guilty ; and that he himself had borne arms
to suppress this insurrection. He was therefore set aside
as incompetent.

William Prince declared, he had nearly the same
impressions as Mr. Beeson; that he too had borne arms;
as well on Blannerhasset's island, as on descending the
river, in search of Blannerhasset. He was set aside in
like manner.

Nimrod Saunders declared that he had expressed an
opinion previously to his being summoned on the jury,
that the prisoner had been guilty of treason. He was
therefore set aside as incompetent.

Thomas Creel had no declaration to make, and was
challenged for cause. Upon being interrogated, he stated
that he had never asserted that the prisoner ought to be
punished; that he had said that he was a sensibleman ;
and if there were any hole left, he would creep out of it ;
that he had conceived that Mr. Burr had seduced Blan-
ner'hassett into some acts that were not right ; that he
had never positively said that Mr. Burr was guilty; that
he had said that Blannerhasset was the most blamable,
because he was in good circumstances, and well off in
life; whereas Mr. Burr's situation was desperate, and that
he had little to lose ; that he had not said that Mr. Burr
had directly misled Mr. Blannerhasset, but through the
medium of Mrs. Blannerhasset ; in short, that there



4i2 TRIAL OF A A ROW BURR.

was no determinate impression on his mind respecting the
guilt of the prisoner.

The Chief Justice did not think that this was sufficient
to set him aside, and suspended his case for further
examination.

Anthony Buckner had frequently said that the prisoner
deserved to be hanged. He was therefore set aside.

David Creel had formed an opinion from the state-
ments in the newspapers, and if these were true, the
prisoner was certainly guilty. He had expressed a
belief that he was guilty of the charges now brought
against him, and that he ought to be hanged. He was
therefore rejected.

Jurors from the body of the district.

John Horace Upshaw declared that he conceived him-
self to stand there as an unprejudiced juryman, for he
was ready to attend to the evidence ; but that as he had
formed opinions hostile to the prisoner (if opinions they
can be. called which are formed from newspaper testi-
mony), and had, he believed, frequently expressed them ;
that he was unwilling to subject himself to the imputa-
tion of having prejudged the cause.

Mr. Burr. We challenge Mr. Upshaw for cause.

Mr. Hay. Then, sir, I most seriously apprehend that
we shall have no jury at all. I solemnly believe Mr. Up
shaw is an intelligent and upright man, and can give a
correct verdict on the evidence; and I will venture to
assert (whatever credit my friends on the other side will
allow to my assertion), that I myself could do justice to
the accused ; I believe that any man can, who is blessed
with a sound judgment and integrity. We might as
well enter at once a nolle prosequi, if he is to be rejected.

Mr. Wickham. Then according to the gentleman's
doctrine any honest man, no matter what his impressions
may be, is a competent juryman. Is this agreeable to
the principles of law ? Does the gentleman mean to
insinuate that when we object to a juryman, it is for his
want of honesty ? No, sir, every man is subject to par-
tialities and aversions, which may conscientiously sway
his judgment. Mr. Upshaw does no doubt deem him-



IMPANELING THE JURY. 413

self an impartial juryman ; but Mr. Upshaw may be
deceived.

After some desultory argument between Messrs. Hay
and Wickham, Mr. Wirt proceeded to ask Mr. Upshaw
whether he had understood him to say that notwith-
standing the hostile impressions he had taken up from
newspaper reports, these impressions had not received
that determinate character which might entitle them to
the name of opinions.

Ansiuer. I have received impressions hostile to Mr.
Burr, and have expressed them with some warmth ; but
my impressions have not been induced by anything like
evidence. They were predicated on the deposition of
General Eaton and the communications of General Wil-
kinson to the president of the United States. I had
conceived that the prisoner had been guilty of some
criminal act against the public, and ought to be pun-
ished, and I believe also that I went on further to vin-
dicate the conduct of those gentlemen who would appear
as the principal witnesses against him ; and also of the
government in the. measures which it had taken to sup-
press his plans. After some further and animated discus-
sion on this point, Mr. Upshaw's case was suspended for
subsequent examination.

William Pope declared that his impressions were
nearly the same with those of the gentlemen who had
preceded him : that he had thought at first, from news-
paper representations, that it was Mr. Burr's intention to
make his fortune in the west by the settlement of lands ;
that when he had afterwards understood that he had
formed a union with Wilkinson to proceed to Mexico he
had regarded the prisoner's conduct in such a light, that if
he had proceeded to Mexico he would have considered it
as an excusable offense, but when he had afterwards un-
derstood that there was treason mixed with his projects
it was impossible for him to view his conduct without the
deepest indignation; if these impressions could be called
prejudices, he trusted that he should always retain them ;
what other sentiments could he feel against such a crime
perpetrated against the very best government on the sur-
face of the earth ? But Mr. Pope declared that from his
heart he believed that he could divert himself of these



414 TRIAL OF AARON BURR.

unfavorable impressions, and give Mr. Burr a fair and
nonorable trial. He would add, that in pursuance of the
spirit manifested by the constitution which required two
witnesses to an overt act of treason, he should think it
necessary that the evidence for the United States should
be so strong as to make the scale preponderate.

Mr. Wickham. You will not misunderstand me, Mr.
Pope, when I ask you whether you have not been a can-
didate for your county, and whether you be not now a
delegate ?

A nswer. Yes.

Question. In canvassing among the people, have you
not declared, that the government had acted properly in
commencing this prosecution?

Answer. Yes; I believe I have said, generally, that I
thought Mr. Burr was guilty of high treason. Mr. Pope
was therefore set aside.

Peyton Randolph declared, that it had never been his
wish or intention to shrink from the discharge of a public
duty ; but that he had peculiar objections to serve on
this occasion ; one of which only, he should state. He



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 39 of 64)