Aaron Burr.

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

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our person and papers have been seized ; we have been
subjected to a military persecution unparalleled in this
country ; given into the custody of the satellites of mili-



to TRIAL OF AARON BURR.

tary despotism, and guarded by the rigid forms of mili-
tary law ; surely our wrongs ought now to end. It was
rumored that he would not appear; but he has appeared.
We come to ask a legal trial ; an examination into the
charges which have been preferred against us. The
government has had the time and necessary means of
preparation, and they ought to be prepared. Our
pleasure was, to await the pleasure of the prosecution,
unless that pleasure should be found to be oppressive.
But we are told now, that the indictment can not go up ;
but in the mean time an inquisition must be held. Per-
mit me to advert for a solitary moment, to one circum-
stance. If we had sought every legal advantage, our
motion would have preceded theirs; our motion would
have been, that, if they were not ready to present their
evidence before the grand jury, Colonel Burr should be
discharged from the recognizance already given.

The laws of congress have adopted our rules and prac-
tice in the states, in proceedings, upon indictments for
misdemeanors. You were of opinion, you well remem-
ber, sir, that nothing more than . probable cause of
suspecting a misdemeanor appeared against Colonel
Burr. Even after an indictment in Virginia for a mis-
demeanor, notking more than a summons can go against
a person indicted. No court in the commonwealth, ever
permitted a capias to go in the first instance, unless the
case passed siib silentio. Now, arrest and bail are utterly
incompatible with a summons ; and surely, if an indictee
can not be arrested, one merely suspected can not be
held to bail. The conduct of Judge Chase, in award-
ing a capias against Callender, was the subject of one of
the charges in his impeachment. Mr. Hay, vehemently
and ably contended, that a summons only ought to have
issued against him.

I know that the court may have an impression that I
am wandering from the subject. I will soon show what
application the recognizance already taken has to the
motion to examine witnesses, in order to commit for
treason.

Notwithstanding, Colonel Burr was committed upon
a charge of misdemeanor, when, according to the state
laws, he would not have been committed, a public preju-



ARGUMENT. 21

dice has been excited against the lenity of the measure;
and attempts have been made, through newspapers and
a popular clamor, to intimidate every officer who might
have any concern in the trial. This p-ublic prejudice
would be increased by the present motion rather than
allayed, if the necessary explanation should not be made.
The multitude around^us must hear what is passing, and
we can not submit to a course which would further in-
vest the public mind with poison already too plentifully
infused. I do not charge the attorney of the United
States with a design to excite or increase this public
prejudice; but I know it will be increased, unless care
be taken to show that the public clamor has been
groundless. I take it for granted, that after this view of
the subject, whatever motive dictated the application, it
will now be abandoned, and that the gentleman will with-
draw his motion. I will not weary out the patience of
the court ; but conclude by saying, that I sit down in
anxious hope, that the success of this motion may not
add to the catalogue of Colonel Burr's grievances.

The chief justice inquired whether the counsel for the
prosecution intended to open the case more fully?

Mr. Hay had not intended to open it more fully; he
did not himself entertain the least doubt, that if there
was sufficient proof produced to justify the commitment
of Colonel Burr, the court had completely the right to
commit him. That the general power of the court to
commit, could not be questioned; and if gentlemen
contended, that it ought not to be exercised in the
present case, it was incumbent on them to show it.
That Mr. Botts, himself, had not denied it. That his
whole argument turned on the question, not whether the
court had the right, but whether it was expedient now
to exercise it. Its expediency depended on the evi-
dence ; if that was sufficient, there could be no doubt of
the power. That if the court once admitted, as an ex-
ception to this principle, that the grand jury was in
session, they would establish a precedent fraught with
the most injurious consequences.

Mr. Wickham. It certainly would have been an ac-
commodation to us, if the gentlemen had given us notice
rf their intended motion. We come into this discussion



22 TRIAL OF AARON BURR.

completely off our guard, completely unprepared ; and it
may be presume'd, that it was merely an omission in the
opposite counsel, not to have given us notice of the mo-
tion which they intended to bring forward. Because it
was distinctly understood between us (by an argument
made, I believe, in the hearing of the court), that if any
specific motion was to be made oji either side, timely
notice of its nature and object was to be given. I am
sorry that they have departed from their agreement in
the present instance ; but if I have not forgotten every
principle of law which I ever learnt, every principle of
common justice, this motion can not be supported.

Mr. Hay. The gentleman will permit me to set him
right. He might have relied on my candor, that when I
was about to lay my indictments before the grand jury,
I would have given him timely notice of my intention.
They might then have moved for the instruction to the
jury, which they are so anxious to obtain. This was the
only understanding between us on the subject ; our
agreement extended no further ; much less to the par-
ticular case before the court. On the other hand, there
was a very strong reason against our making this com-
munication. I feel no hesitation, sir, in assigning this
reason ; and I hope that it will wound neither the feel-
ings of the prisoner nor of his counsel. I did not intend
to have laid it before the court, but I now conceive my-
self called upon to be thus explicit. The fact is this : Mr.
Wilkinson is known to be a material witness in this pros-
ecution ; his arrival in Virginia, might be announced in
this city, before he himself reached it. I do not pretend
to say what effect it might produce upon Colonel Burr's
mind ; but certainly, Colonel Burr would be able to effect his
escape, merely upon paying the recognizance of his present
bail. My only object, then, was to keep his person safe,
until we could have investigated the charge of treason ;
and I really did not know, but that if Colonel Burr had
been previously apprised of my motion, he might have
attempted to avoid it. But I did not promise to make
this communication to the opposite counsel, because it
might have defeated the very end for which it was in-
tended. I have said, that the only pledge I gave, merely
related to the indictments to be sent up to the grand jury.



ARGUMENT. 23

Mr. Wickham observed that after this explanation, he
must suppose, that he had misapprehended the extent
of their agreement. He knew the gentleman too well
to think that he had intentionally misled him ; but what
could he think of the motion he had made? It was a
strange episode which he weaved into his tale ; it may be
good poetry, indeed, but it was not certainly proper
matter of argument. Every man who hears me, every
man who has ever read on the subject, must know what
are the feelings which dictate these suspicions of Colonel
Burr. Some mortification was felt by his enemies (not
that the attorney for the United States, himself, ever
felt it), that he returned here for trial. But here Colonel
Burr is, and always will be ready to meet every charge
they may think proper to bring against him ; and to face
every man who dares say anything against him. The
gentleman will not open his case, and why? Because
when he has heard our arguments against his motion, he
may come out with the adverse arguments against us.
If they do not choose to open their case, we hope the
court will grant us the right of concluding the argument.

Here a desultory conversation ensued upon the order
of proceeding.

Mr. Edmund Randolph observed, that the power of
the court to commit, was not denied ; but that the expe-
diency of committing, while a grand jury was in session,
was denied ; that it was improper that an inquiry which
belonged exclusively to that body, should be transferred
to the court.

Mr. Hay said that it made no difference in law,
whether the grand jury were in session or not ; that the
grand jury being in session could not deprive the court
of the power with which they were vested. Let me
state a case, said Mr. Hay. Suppose Colonel Burr had
only arrived in Richmond this morning, instead of
having been brought at the period of his first examina-
tion, would his counsel contend that the court would
not think it proper to commit him, instead of bringing
the question immediately before the grand jury, when
the prosecutor was not furnished with the necessary
evidence ? This is precisely the case at present. From
additional evidence, which has come into my possession



2 4 TRIAL OF AARON BURR.

since his examination, it appears to me, that upon a dis-
closure of it to the court, they will see proper that he
should be committed on the charge of treason ; but to
complete this evidence still more, the testimony of Gen-
eral Wilkinson is essential; and until his arrival, it would
be improper to submit jt to the grand jury ; although it
is necessary for the reasons I have stated, that it should
be submitted at present to the court.

Mr. Wickham meant to support bis arguments on the
grounds of law and precedent : he read the revised code
of Virginia, page 103, 10,' which he contended were
plainly in his favor. He observed, that the present
motion was unprecedented in a system of criminal juris-
prudence, which was upwards of one hundred years old.
If this motion be a proper one, there must be some pre-
cedents in this country or in England. If there be none
such, their motion can not be supported ; and as the
gentlemen have not produced them, it is fair to infer,
that there are none such. It is therefore obvious that
the present motion is contrary to the acts of Virginia, as
well as to the common law. The attorney for the
United States says, that he can take no final measures
till General Wilkinson is present. His deposition is
greatly relied upon. Now, sir, I refer to you as well as
to the supreme court of the United States, where you
presided, that the facts contained in that deposition did
not amount to treason, but to a probable proof of a mis-
deameanor only. As to General Eaton's, it is not relied
on ; the sole reliance of the prosecution is on Wilkin-
son's; of course, if Wilkinson himself were present, he
would prove nothing new. But if General Wilkinson be
so material a witness, why are they not prepared 'to go
with him before the grand jury? Why is he not here?
He is a military officer, bound implicitly to obey the
head of the government. In the war of Europe, a
general has been known to march the same distance at
the head of his army, in a shorter time than General
Wilkinson has had to pass from New Orleans to this
place. He is bound to go wherever the government
directs him; to march to Mexico ; to invade the Floridas ;
or to come to this city. Perhaps there are other reasons
for his not coming, but let us not press this subject.



ARGUMENT. ?5

What, sir, is the tendency of this application ? What
is the motive ? I have no doubt the gentle men mean
to act correctly. I wish to cast no imputation ; but the
counsel and the court well know that there are a set of
busy people (not, I hope, employed by the government),
who, thinking to do right, are laboring to ruin the repu-
tation of my client. I do not charge the government
with this attempt ; but the thing is actually done. At-
tempts have been made. The press, from one end of
the continent to the other, has been enlisted on their
side to excite prejudices against Colonel Burr. Preju-
dices ? Yes, they have influenced the public opinion by
such representations, and by persons not passing between
the prisoner and his country, but by ex parte evidence
and mutilated statements. Ought not this court to bar
the door, as much as possible, against such misrepresen-
tations? to shut out every effort to excite further preju-
dices, until the case is decided by a sworn jury? not by the
floating rumors of the day, but by the evidence of sworn
witnesses? The attorney for the United States offers
to produce his testimony; no doubt, the most violent ;
no doubt, the least impartial which he can select ; testi-
mony, which is, perhaps, to be met and overthrown by
superior evidence. Do they, besides, wish that the
multitude around us should be prejudiced by garbled
evidence ? Do precedents justify such a course as this ?
Produce your witnesses, they may say. No, sir, Colonel
Burr is ready for a trial ; but he wishes that trial to come
before a jury. I do not pretend to understand the
motives which led to those things; it is enough, that
they produce these mischievous effects upon ourselves.
Should government, hereafter, wish to oppress any
individual ; to drag him from one end of the country to
the other by a military force ; to enlist the prejudices of
the country against him ; they will pursue the very
same course which has now been taken against Colonel
Burr. He is here ready for trial. They admit that their
testimony is not sufficient to bring him before the grand
jury, and of course, to find an indictment against him.
Why, then, is this partial evidence to be exhibited on a
motion for commitment ? It is to nourish and keep
alive the prejudices already circulated against him. WilJ



26 TRIAL OF AARON BURR.

they, then, press a motion like this? Be it so. I hope
the motion will be rejected, and that the court will stand
between the innocent and his pursuers ; for every man
is presumed to be innocent, before he is found guilty.

Mr. Wirt. May it please your honors,

The attorney for the United States, believing himself
possessed of sufficient testimony to justify the commit-
ment of Aaron Burr for high treason, has moved the
court to that effect. In making this motion, he has
merely done his duty. It would have been unpardon-
able in him to omit it ; yet the counsel for the defense
complain of the motion and the want of notice. As to
the latter objection, it must be palpable, that the nature
and object of the motion rendered notice improper.
The gentlemen would have the attorney to announce to
the party accused, that he was, at length, in possession
of sufficient evidence to justify his commitment for
high treason ; and, that being apprehensive he might not
be disposed to stand this charge, he intended, as soon as
the accused came into court next morning, to move his
commitment ! This would really be carrying politeness
beyond its ordinary pitch. It would not have deserved
the name of candor, sir ; it would, in fact, have been an
invitation to the accused to make his escape. But, as
gentlemen seem to doubt, at least with an air of some
earnestness, the propriety of this motion at this time,
and express their regret that they have not had time to
examine its legality, the attorney has offered to waive
the motion until to-morrow, to give gentlemen the
opportunity which they profess to desire ; but no, sir,
they will not even have what they say they want, when
offered by the attorney. Another gentleman, after hav-
ing demanded why this motion was made, and by that
demand drawn from the attorney an explanation of his
motives, has been pleased to speak of the attorney's
statement, of his apprehensions, as an episode, which
" though good poetry," he says, " had better have been
let alone, when such serious matters of fact were in dis-
cussion." It may be an episode, sir ; if the gentleman
pleases, he is at liberty to consider the whole trial as a
piece of epic action, and to look forward to the appro-
priate catastrophe. But it does not appear to me to be



ARGUMENT. 27

very fair, sir, after having drawn from the attorney an
explanation of his motives, to complain of that ex-
planation : if a wound has been inflicted by the expla-
nation, the gentlemen who produced it, should blame
only themselves. But, sir, where is the crime of con-
sidering Aaron Burr as subject to the ordinary operation
of the human passions? Towards any other man, it
seems, the attorney would have been justifiable in using
precautions against alarms and escapes ; it is only im-
proper when applied to this man. Really, sir, I recol-
lect nothing in the history of his deportment, which
renders it so very incredible, that Aaron Burr would fly
from a prosecution. But at all events, the attorney is
bound to act on genera' principles, and to take care that
justice be had against every person accused, by whatever
name he may be called, or by whatever previous reputa-
tion he may be distinguished. This motion, however,
it seems, is not legal, at this time, because there is a
grand jury in session. The amount of the position is,
that though it may be generally true, that the court
possesses the power to hear and commit, yet, if there be
a grand jury, this power of the court is suspended; and
the commitment can not be had unless in consequence
of a presentment or bill of indictment found by that
body. The general power of the court being admitted,
those who rely on this exception, should support it by
authority ; and therefore, the loud call for precedents,
which we have heard from the other side, comes im-
properly from that quarter. We ground this motion in
the general power of the court to commit ; let those
who say that this general power is destroyed by the
presence of a grand jury, show one precedent to
countenance this original and extraordinary motion. I
believe, sir, I may safely affirm, that not a single re-
ported case or dictum can be found, which has the most
distant bearing towards such an idea. Sir, no such
dictum or case ought to exist. It would be unreason-
able and destructive of the principles of justice; for if
the doctrine be true at all, that the presence of a grand
jury suspends the power to hear and commit by any other
authority, it must be uniformly and universally true in
every other case as well as this, and in every case Which ,



28 TRIAL OF AARON BURR.

can be proposed while a grand jury is sitting. Now, sir,
let us suppose, that immediately on the' swearing of this
grand jury, and their retiring to their chamber, Aaron
Burr had for the first time been brought to this town ;
the members of the evidence scattered over the conti-
nent ; the attorney, however, in possession of enough
to justify the arrest and commitment of the accused
for high treason, but not enough to authorize a grand
jury to find a true bill. What is to be done? The
court disclaims any power to hear and commit, because
there is a grand jury ; the grand jury can not find a true
bill, because the evidence is not sufficient to warrant
such a finding ; the natural and unavoidable conse-
quence would be, that the man must be discharged, and
then, according to Mr. Wickham's principles of ethics,
that every man must be supposed to intend the natural
consequences of his own acts, the gentlemen who
advocate this doctrine intend that Aaron Burr shall be
discharged without a trial.

I beg you, sir, to recollect what was said by gentle-
men the other day, when you were called upon to give
an additional charge to the grand jury. You were told
that a grand jury should require the same evidence to
find a true bill, which a petit jury would require to con-
vict the prisoner. Connect this principle with the doc-
trine in question : the sitting of the grand jury suspends
all power to convict by any other body, and the grand
jury can not find a true bill, unless on evidence on which
they would convict as a petit jury: connect these two
principles, and consider the immaturity of evidence,
which always exists at the period of arrest and commit-
ment : and the sitting of the grand jury, instead of being
a season of admonition and alarm, becomes a perfect
jubilee to. the guilty. But it is said, that this is " an at-
tempt to divest the constitutional organ of its justand pro-
per power." I believe, sir, it was never before heard, that
an application to commit for safe keeping, was an encroach-
ment on the power of the grand jury. Would the gen-
tlemen have us to address this motion to the grand jury?
they might as well propose, that we should submit the
bill of indictment to the court, and desire them to say,
whether it is a true bill or not ? This would be indeed,



ARGUMENT. 29



the " shifting of powers," of which the gentleman com-
plains. As it is, sir, there is no manner of collision
between the power which we call upon the court to
exercise, and the proper power of the grand jury. The
justices arrest and commit, for safe keeping; then comes
the function of the grand jury, to decide on the truth of
the indictment exhibited against the prisoner. The two
offices are distinct in point of time, and totally different
in their nature and objects. But it is said, that " there
is a great inconvenience in submitting a great law officer
to the necessity of expressing an opinion on the crime,
on a motion like this that the judge like the juror,
should come to the trial " with his mind pure and un-
biassed." This argument does not apply to the legality
of the power, which we call upon the court to exercise ;
it goes merely to the expediency of exercising it ; and if
the argument be true, the court ought never to commit,
whether the the grand jury be sitting or not. This, how-
ever, sir, is a matter for legislative, not for judicial con-
sideration. Whenever the legislature shall decide, by
the force of this argument, that the court which commits
shall not sit on the trial in chief, a motion like this will
become improper. At present however,- the legislature
has left this power with the court, and we claim its exer-
cise for considerations of the most serious importance to
truth and justice.

But, sir, we are told that this investigation is cal-
culated to keep alive the public prejudices; and we hear
great complaints about these public prejudices. The
country is represented as being filled with misrepresenta-
tions and calumnies against Aaron Burr; the public
indignation, it is said, is already sufficiently excited.
This argument is also inapplicable to our right to make
this motion ; it does not affect the legality of our pro-
cedure. But if the motion is likely to have this effect,
we can not help it. No human institution is free from
inconveniences; the course we hold is a legal one, a
necessary one: we think it a duty. It is no answer to
us to say, that it may produce inconveniences to the
prisoner. But let us consider this mournful tale~of pre-
judices, and the likelihood of their being excited by this
motion. Sir, if Aaron Burr be innocent, instead of



3 o TRIAL OF AARON BURR.

resisting this motion, he ought to hail it with triumph
and exultation. What is it that we propose to intro-
duce? not the rumors that are floating through the
world, nor the bulk of the multitude, nor the specula-
tions of newspapers ; but the evidence of facts. We
propose, that the whole evidence, exculpatory as well as
accusative, shall come before you ; instead of exciting,
this is the true mode of correcting prejudices. The
world, which it is said has been misled and inflamed by
falsehood, will now hear the truth. Let the truth come
out, let us know how much of what we have heard is
false, how much of it is true ; how much of what we feel
is prejudice, how much of it is justified by fact. Who-
.ever before heard of such an apprehension as that which
is professed on the other side? prejudice excited by evi-
dence! Evidence, sir, is the great corrector of preju-
dice. Why, then, does Aaron Burr shrink from it ? It
is strange to me that a man, who complains so much of
being, without cause, illegally seized and transported by
a military officer, should be afraid to confront this evi-
dence ; evidence can be promotive 'only of truth. I
repeat it, then, sir, why does he shrink from evidence?
The gentlemen on the other side can give the answer.
On our part, we are ready to produce that evidence.
Permit me now, sir, to turn to the act of assembly which



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 4 of 64)