Aaron Burr.

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

. (page 40 of 64)
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had been enrolled and was qualified as a lawyer in this
court ; and he would submit it to the court, whetherlhis
did not exempt, if not disqualify, him from serving ?

Chief Justice admitted Mr. Randolph's privilege, un-
less there were an express interposition on the part of
the prisoner, to retain him and others of the venire who
had privileges : for this would call a conflicting privilege
into operation.

Mr. Burr said that he should be passive.

John Bowe did not recollect to have said, that the
prisoner was guilty of treason, but of something hostile
to the peace and happiness of the United States. Upon
being interrogated he observed that he was a delegate
from the county of Hanover ; that there had been a
competition at the last election ; that he had had occa-
sion to speak at that time of the views of the prisoner,
but had always done it cautiously ; had never asserted
that he ought to be hung, but that he was guilty of
something unfriendly to the peace of the United States.

Mr. Wickham. You have said that the prisoner was
guilty ?



IMPANELING THE JURY. 415

Answer. Yes.

Chief Justice. Did you ever make up an opinion
about his levying troops and making war against the
United States,

Answer. Yes : but I have never expressed it.

Mr. Burr. Take the whole together, and it amounts
to an opinion of treason. Mr. Bowe has said, that Mr.
Burr was guilty ; and of what ? Of that which in Mr.
Bovve's mind amounts to the definition of treason. He
was therefore set aside.

John Roberts had thought and declared, from the
reports in the public newspapers, that the prisoner was
guilty of treason, though he had no doubt that his opin-
ion might be changed by the production of other testi-
mony. He was set aside as incompetent.

Joshua Chaffin excused from indisposition.

7. Jervis Storrs observed that the state of his mind
was like that of the gentleman who had gone before him
(Mr. Bowe) ; he was in the habit of reading newspapers,
and could not but examine their statements relative to
these transactions. If he could believe General Eaton's
assertion that the prisoner had threatened to turn con-
gress out of doors and assassinate the president, he had
said, and would still say, that Mr. Burr was guilty of
treason. If General Wilkinson's letter were true, he had
surely been guilty of something in the west that was
hostile to the interest of the United States. He did not
know whether, in the* multifarious conversations he had
had on this subject, he had always expressed this opinion
of his guilt with that reservation. He had very often
communicated his impressions that he was plotting some
hostile designs against the United States. Mr. Storrs
confessed that he might be prejudiced against the pris-
oner ; and that he might be judging too highly of his
own mind, to entertain the belief that he could divest
himself of all his impressions; and upon the whole, he
expressed a wish not to serve. He was then rejected.

8. Miles Selden declared that it was impossible not to
have entered into the frequent conversations which had
occurred on this topic, and to have declared some opin-
ion ; that he had always said that Mr. Burr was guilty of
something, and that if he were guilty of treason against



4i6 TRIAL OF AARON BURR.

such a government as that of the United States, he would
deserve to be hanged ; that he could not assert that
he had always accompanied his opinions with this reser-
vation ; but that he was not afraid to trust himself in the
rendering of a verdict.

Upon being interrogated, he said that he had fre-
quently jested on this subject ; and particularly recol-
lected to have said in a sportive conversation with Colonel
Mayo, that this was a federal plot and that Burr had
been set on by the federalists. Colonel Selden was there-
fore suspended for further consideration.

9. Lewis Truehart had said that if the reports were
correct, Mr. Burr had been guilty of something inimical
to the country, and that he always qualified his opinions
in that manner.

Colonel Tinsley was then called in as a witness, who
stated, that from a conversation with Mr. Truehart, he
thought that he had discovered that he had a general pre-
possession against Mr. Burr. He did not expect to be called
on, and had no very distinct recollection of the partic-
ulars ; that this was before any of the proceedings of the
trial : and when he heard that he was summoned as one of
the venire, he then recollected their conversation and hap-
pened casually to mention it. Mr. Truehart suspended.

William Yancey had expressed an opinion on news-
paper testimony that Mr. Burr was guilty; that he had
frequently said that he would believe the statements of
newspapers till the contrary were proved : but that he
had no doubt he should entertain a different sentiment,
if other testimony were produced He was set aside.

Thomas Prosser was next called. He said that he had
made numberless declarations about Mr. Burr ; that he
had believed him to be guilty of a treasonable intention,
but not of the overt act ; on this point he had suspended
his opinion, but he was rather inclined to believe that he
had not committed it.

Mr. Martin. Can this gentleman be considered as an
impartial juryman, v hen he thus comes with his mind,
made up on one-half of the guilt ? He-was suspended for
further consideration.

John Staples had been under the same impressions,
which had been described by others ; that he dared to



IMPANELING THE JURY. 417

say, that he had said Mr. Burr was guilty of levying
troops and making war upon the United States. He
was set aside.

Edward C. Stanard acknowledged that his prejudices
against Mr. Burr had been deep-rooted ; that he had no
doubt of the criminality of his motives, but that he had
doubts of the commission of an overt act ; he regretted
that a man of his talents and energetic mind, should be
lost to his country. Upon being interrogated he ob-
served that he had doubts as to the overt act, because
he believed him to be a man of such deep intrigue as
never to jeopardize his own life, till thousands fell before
him. He was rejected.

Richard B. Goode was then called.

I have never seen, neither do I believe, that I have
heard correctly, the evidence in this prosecution. From
common report and newspaper information I have formed
an opinion unfavorable to Mr. Burr: that opinion has
been strengthened by what I have heard from the lips of
Mr. Burr in this court ; but without arrogating to myself
more virtue than belongs to other men, if I know myself,
I have formed no opinion which can not be altered by the
evidence.

Mr. Baker. Did you not endeavor to displace Mr.
Heth as captain of the Manchester cavalry, for becoming
the bail of Mr. Burr.

Answer. I never did. (Here several witnesses were
directed to be called.)

Mr. Goode. I will state the circumstance to which you
allude, unless you prefer to prove it.

The Court. Do so, if you please.

Mr. Goode. On the 4th of July, 1806, I was a mem-
ber of a committee with Captain Heth, appointed to pre-
pare toasts to be drunk on that day by the Manchester
cavalry. I profess to be attached to the present admin-
istration of the general government, and wished to ex-
press such a sentiment. Captain Heth declared that he
had not confidence in the executive, and rather than ex-
press such a sentiment he would resign his commission.
At that time, I thought Captain Heth and myself differed
only as to measures, and not as to principles; and that it
was an honest opinion. But in a few months after, when

27



4 i 8 TRIAL OF AARON BURR.

I understood that Captain Heth had become bail for Mr.
Burr, and was his zealous friend, with whom he was
neither connected nor acquainted, but a stranger, who,
three years ago, would have been consigned to the grave
by Captain Heth, and those thinking with him upon
political subjects ; and when I recollected the charge
preferred against Mr Burr, I confess that the declaration
and conduct of Captain Heth made such impressions
upon my mind, that I refused to trust my person with
him as a military commander, and I would do it again.

Mr. Burr. Pray, sir, did you not write a letter to Cap-
tain Heth ?

Answer. I did ; and I have reasons to believe that
that letter is in your possession or in the possession of
your counsel. You are at liberty to show it to the court,
or I will repeat that part of it which relates to Captain
Heth and yourself.

The Court. Do so, sir.

Mr. Goods. A few weeks past, I received a letter from
Captain Heth, commanding me to appear at a certain time
and place, in order to take my proper command in the
troop. I wrote him in answer, that my post as a soldier
would never be abandoned, and that my duty as a citizen
forbade that I should silently approve of the conduct of
those who had extended a favor to a traitor, which the
justice of my country denied to an unfortunate debtor,
or words to that effect.

Mr. Goode was then rejected.

Nathaniel Selden stated he had formed an opinion,
particularly from General Eaton's deposition that the
intentions of the prisoner were hostile to the United
States ; but that he had also said he had seen no'evi-
dence to satisfy him that he had been guilty of an overt
act. He was suspended for further consideration.

16. Esme Smock declared that he had formed and ex-
pressed an opinion that Mr. Burr had treasonable de-
signs.

Chief Justice. To what time did your opinion relate ?

Mr. Smock. I have formed my opinion from news-
paper publications and common report ; but I have con-
stantly conceived that Mr. Burr's intentions were trea-
sonable throughout.



IMPANELING THE JURY. 419

Mr. Wickham. Have you ever formed an opinion
that Mr. Burr was guilty of treason ?

Answer. I have in my own mind. He was set aside.

Richard E. Parker said that he had, like every other
person, formed an opinion on that case, on newspaper
statements ; but he had heard very little of the evidence
that may be adduced on this occasion. He had declared
that if these newspaper statements were true, Mr. Burr
had been guilty of some design contrary to the interest
and laws of the United States. As to the doctrine of
treason, he had not formed a conclusive opinion.

Mr. Burr. I have no objection to Mr. Parker.

He was therefore elected.

A desultory argument here ensued, about the propriety
of swearing one juryman at a time. The counsel for the
prosecution opposed, the counsel for the prisoner advo-
cated the doctrine. The court decided that it would
adhere to the practice of Virginia; and swear four jury-
men at a time.

John W. Ellis said that he had no doubt that the pris-
oner had been guilty of' having treasonable designs ;
whether he had proceeded to acts, he had doubt. He
was suspended.

Thomas Starke, without any expectations of being sum-
moned as a juryman, had stated his opinion to his neigh-
bors, who had asked him questions on the subject, that
Mr. Burr had been guilty of high treason. He was set
aside.

William White stated that he had been in the Western
country, in May last ; and from Mr. Burr's character and
from the representations he had received of his conduct,
he had been induced to say that he was guilty of trea-
son, and that he ought to be hanged, or that hanging was
too good for him. He was set aside.

William B. Chamberlaine stated that he stood in a very
peculiar situation ; if, as Mr. Wickham declared, any man
were unfit to be a juryman who had asserted Mr. Burr to
have been worthy of death, he was ready to confess that
he himself came under this restriction. He had said
uniformly, that he had treasonable designs ; but he did
not now believe that Mr. Burr had committed an overt
act of treason ; though he believed him to be guilty of



420 TRIAL OF AARON BURR.

the intention. He however believed that he could do
him justice ; and that he could conscientiously pass be-
tween him and his country. He was rejected.

David Lambert wished to be excused on account of
his indisposition ; but the court rejected his plea. On
being interrogated, he declared that he did not recollect
to have formed an opinion, for or against Mr. Burr. He
was elected.

William Hoomes had no hesitation in saying, that he
had often declared his opinion that Mr. Burr was guilty
of treasonable intentions, and perhaps, he might say, of
treason itself. He had imbibed his impressions from
everything he had seen, heard, or read. He had under-
stood that Mr. Burr's counsel had made preparations to
prove that he had disqualified himself by his own dec-
larations. He should thank them to develop their objec-
tions.

Mr. Burr. I assure you, sir, no such preparation has
been made. He was set aside.

24. Overton Anderson said that he had often expressed
an opinion that Mr. Burr's views were inimical to the
United States ; these opinions he had principally formed
upon newspaper statements ; he did not recollect that he
had ever asserted him to be guilty of treason ; but he
had sometimes given credit to the representations, which
he had heard, without particularly defining the degree of
guilt in which they might involve the prisoner, and
thought him guilty of the charge against him, though he
would not say it was treason. He was rejected.

Hugh Mercer, upon being called, said, that it was his
duty to state that an opinion, which he had for some
time past entertained, of the character of Mr. Burr,
was unfriendly to a strictly impartial inquiry into his
case ; that he was entirely uninformed as to the testi-
mony which would be introduced, and that he cHd not
recollect to have ever expressed a positive opinion, either
as to his guilt or innocence. He was elected.

Jerman Baker had entertained opinions unfavorable to
Aaron Burr, which he had repeatedly expressed. He had
spoken them with warmth, for it was his nature to be
warm. He had no doubt that the prisoner had formed
very unfriendly designs against the United States; but



IMPANELING THE JURY, 421

from his ignorance of the evidence, he could not venture
to say, that they had ripened into an overt act.

Mr. Burr. What opinion have you formed of me?

Answer. A very bad one; which I have expressed of-
ten when called upon ; and often when not. He was set
aside.

Edward Carrington, next called, said that he had
formed an unfavorable opinion of the views of Mr. Burr;
but these opinions were not definitive. Some had said
that Mr. Burr's object was to invade the Spanish territo-
ries ; others that it was to dismember the union ; his own
opinion had not been definitely fixed. There was another
subject connected with this trial, on which he had also
expressed his opinions ; and that related to the measures
taken at New Orleans. His own opinion had been, that
it was impossible for any one at this remote scene, to
determine upon the state of affairs in that city ; but if
General Wilkinson did seriously believe what he said had
been represented to him as the views of Mr. Burr, that
he ought to consider it as an extreme case, and take ex-
treme measures, and act somewhat in the manner that
General Wilkinson had done. This has been the state of
his mind for twelve months.

Mr. Burr. Have you, colonel, any prejudice of a
more settled kind and ancient date against me?

Colonel Carrington. None at all.

Mr. Burr. He is elected.

Mr. Parker said that perhaps he had been misunder-
stood by the court and Mr. Burr ; perhaps he was dis-
qualified, and he wished to be distinctly understood.
He said that he had expressed no deliberate opinion on
the subject, yet he had believed that Mr. Burr had some
designs contrary to the interest of the United States ;
that he had formed no opinion of the truth of those dep-
ositions, but if they were true, his designs were treasona-
ble. Mr. Parker was returned as a juror.

The four jurymen that had been elected, were then called
to the book, and sworn, viz. Messrs. Parker, Lambert,
Mercer, and Carrington.

Robert Haskins had expressed an opinion that Mr.
Burr was guilty ; but does not recollect to what extent
' -2 went. He went so far as to say, he was guilty of an



422 TRIAL OF AARON BURR.

intention of treason, but not of an overt act. He might
have said he deserved to be hanged. He was set aside.

William R. Fleming had formed and frequently ex-
pressed an opinion, that Mr. Burr was guilty of treason-
able intentions ; and might have made a general declar-
ation, not only as to intentions, but to acts. He was set
aside.

George W. Smith suggested a right to the same ex-
emption which had been granted to Mr. P. Randolph.
The court said that this privilege, would be incontesti-
ble unless the prisoner should urge his conflicting privilege.
Mr. Burr then requested Mr. Smith to attend to-morrow.
Mr. Smith wished to be excused, as he had some important
business in another court to attend to. He should, how-
ever, attend on the trial to-morrow ; but it might now be
proper to state the general impressions which he had re-
ceived from these transactions. He had generally been so-
licitious to avoid an expression of his opinions ; and as in
such cases, where the government commences a prosecu-
tion against an individual, there is always a preponder-
ance of prejudice against him ; he himself had not only
been solicitous, not to declare, but even not to form, an
opinion. No one can, however, avoid reading represen-
tations of these things in the public papers ; and he had
formed, and declared, his impressions, that Mr. Burr had
entertained designs offensive to the peace and laws ot
the United States. What was the species of guilt, he
had not pretended to define ; but he had concluded from
the newspaper reports, and the testimony which he had
heard in the other end of the capitol, that his designs
were of a military nature, and that they might amount, at
least, to a misdemeanor. He was suspended for further
consideration.

mead T. Mason had formed no deliberate
opinion in regard to the actual commission of treason.
But it was his deliberate opinion that Mr. Burr had de-
signed, if not to subvert the government, at least to di-
vide the country. He was suspended for further consid-
eration.

32. Dabney Minor had often said that Mr. Burr's in-
tentions were unfriendly to the United States; that he
had said that if he were guilty of what was charged



IMPANELING THE JURY. 423

against him, he ought to be hanged; but had heard no
positive testimony.

Some conversation here ensued between Mr. Minor
and Mr. Botts, when Mr. Minor was suspended until to-
morrow.

Thus, then, of the whole venire that appeared, four
only were elected and sworn, and nine were suspended
till arguments should be heard on the subject, in order to
aid the court to form an opinion whether they were
competent jurymen or not.

Here a discussion of considerable length took place,
on the propriety of confining or not confining, in the cus-
tody of the marshal, the jurors already sworn, till the
other eight should be sworn.

The court then decided that there was no necessity
for delivering the jurymen who had been, or should be
sworn into the custody of the marshal, until the whole
number had been impaneled and sworn.

TUESDAY, August nth, 1807.

Present, the Chief Justice and Judge Griffin.

The Chief Justice informed the counsel engaged in the
cause, that the court was ready to hear any observations
on the question before them yesterday, which they
might think proper to make.

Mr. Martin. We are ready to say something relative
to the situation that a juryman ought to be in, to enable
him properly to pass upon the case of a prisoner.

Mr. George W. Smith was the first of the jurors sus-
pended yesterday for subsequent examination, who was
called. He said that he supposed himself entitled to ex-
emption, from his profession as a practicing lawyer in this
court : that by the law of the land, as long as he behaved
with respect to the court, and diligence to his client, he
ought not to be obstructed in the pursuit of his profes-
sional duties : that though there wa.s no express statute
exempting him, yet he was exempted by reason of the
law.

Mr. Burr observed that, as some real or fictitious diffi-
culty had occurred in the selection of jurymen, he should
be extremely sorry, if such as were impartial should ob-



424 TRIAL OF AARON BURR.

ject to themselves. If Mr. Smith, however, raised such
objections, he himself should submit to the decision of
the court, as he wished to be perfectly passive.

Mr. Smith did not know whether he deserved such an
encomium on his impartiality ; but as the arrangement
of his professional business, in other courts (though not
in this court at this particular time) would not permit
him to attend the trial with any convenience, he should
claim the privilege of exemption, to which, in his opin-
ion, he was entitled by law.

Chief Justice said that this privilege would certainly
exempt Mr. Smith, unless his attendance were claimed
by the prisoner ; and as Mr. Burr waived this right, Mr.
Smith was excused from attending.

James Henderson, of Wood county, who was absent
yesterday, was next called ; he was challenged for cause.
On being examined by Mr. Botts, he admitted that he
was not a freeholder, and was consequently set aside.

Mr. Hamilton Morrison was the next of the suspended
jurymen who was called. He declared that it was with
pain he should serve on the jury; that he did not wish
to serve on it ; that it was still more disagreeable to him,
as the defendant seemed to have such imaginary thoughts
against him ; that he had not meddled with the prison-
er's transactions, though perhaps he might have done so
had it been profitable to him. James Henderson and
Mr. Neale were both examined as to what they might
have heard him say on this subject, and both declared
that they'had heard him say nothing material.

Mr. Burr. Have not these rumors excited a prejudice
in your mind against me?

Answer. I have no prejudice for or against you.

Mr. Botts. Are you a freeholder?

Answer. I have two patents for land.

Question. Are you worth three hundred dollars ?

Answer. Yes; I have a horse that is worth the half
of it.

Question. Have you another at home to make up the
other half?

Answer. Yes ; four of them. [Here the court said
that sufficient cause had not been shown against his
being a proper juror.] I am surprised why they should



IMPANELING THE JURY. 425

be in so much terror of me. Perhaps my name may be
a terror, for my first name is Hamilton.

Mr. Burr then observed that that remark was a suffi-
cient cause for objecting to him, and challenged him.
Mr. Morrison was therefore set aside.

This was the first peremptory challenge which the
prisoner made, of the thirty-five to which the law entitles
him.

Thomas Creel, another of the suspended jurymen from
Wood county, was next set aside by the court; because
he said that he had both formed and expressed sentiments
unfavorable to the prisoner.

John H. ypshaw was next called up. He stated, before
he was interrogated, that he had received strong impres-
sions against Mr. Burr, but that he believed he could
find a verdict according to testimony.

The Chief Justice wished to know, whether those im-
pressions related to the general charge of treason against
the prisoner, or to what happened before, or to what
circumstances?

Mr. Upshaw answered, that they related to the trans-
actions in the western country ; and added, " my opin-
ions have changed as the lights of evidence seemed
successively to appear. It was my first impression, that
he had nothing more in view than the settlement of the
lands on the Waschita. I next supposed that he in-
tended to attack Mexico ; but that as a mean of effect-
ing that object, he intended to attack New Orleans ; and
last of all, that his plans were of a more complicated
nature ; but that he never thought, till after his leaving
the mouth of the Cumberland, that Burr had treasonable
designs ; but that he could not recollect particularly the
times when he formed or changed these opinions.

Mr. Wickham asked him whether, as the result of all
these impressions, he did not consider Mr. Burr a
dangerous man ? He answered, that that was his im
pression.

Mr. Mac Rae. Have you formed or delivered an opin-
ion, that he has committed an overt act of treason, as
charged in the indictment?

Answer. I have not.

Mr. Martin said that he should state whether there



426 TRIAL OF AARON BURR.

were any bias on his mind, although he did not believe
that an overt act had been committed ; for if he had



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 40 of 64)