Aaron Burr.

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

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such bias, he was unfit for a juryman.

Mr. Baker. Have you not, in your own county,
argued in conversation to show that Mr. Burr was guilty,
and that there was strong presumptive evidence against
him ?

Answer. I have done so ; and not only supported
such opinions, but have gone on to vindicate the pro-
priety of the measures taken by the government.

Mr. Burr said that enough had appeared to shovr
that Mr. Upshaw had taken up strong prejudices against
him.

Mr. Hay asked whether such testimony as that could
disqualify him as a juryman ?

Mr. Upshaw said that he had been in the habit of
impressing on others his prejudices, or opinions, that
Burr was a dangerous man to the community.

Mr. Mac Rae. I beg leave to ask, whether personally
you have any prejudices against him ? Have you any
other prejudice against him, except that he has enter-
tained treasonable designs ?

He answered explicitly that he had not.

Mr. Burr. Had you not, anterior to those transac-
tions rumored in the western country, formed an un-
favorable opinion of me ?

Mr. Upshaw answered that he had before (with other
persons) formed rather an unfavorable opinion against
him, during the presidential election (of 1801), though
he had no positive evidence on that subject.

Here Mr. Upshaw was suspended, till the general ques-
tion on the doctrine of challenges should be argued.

Mr. Martin rose to proceed with his argument. He
stated that it was one of the soundest principles of law,
that every man had a right to be tried by an impartial
jury : that this right extended to all cases, civil and Crim-
inal ; but that in criminal cases it was secured by the
constitution in a positive and sacred manner, so that all
altercation as to the meaning of the terms was rendered
unnecessary.

Mr. Mac Rae apologized for interrupting Mr. Martin,
but suggested that it would be a saving of time, first,



IMPANELING THE JURY. 427

to know the objections to all the jurors, and then to have
one general argument, as to all, instead of having an ar-
gument on each particular case as it might occur : that
he wished to economize time, and that the experience of
yesterday showed the propriety of saving time as much
as possible. Evidence is now heard as to this case, and
if it be argued, the court must hear arguments in the
case of every other juryman : he did not seethe necessity
of holding twelve arguments instead of one, where the
cases were precisely similar. He did not wish to pre-
scribe to gentlemen their course of proceeding, but he
really supposed that one argument would suffice for all
the cases.

To this the Chief Justice assented.

Mr. Martin. I have been repeatedly interrupted by the
gentlemen ; and they have found out in their infinite wis-
dom, that we are to hold twelve arguments on this point.
They talk, sir, of economy of time: they have shown a
happy instance of this economy of time, when I was
here on a former occasion. Lknow what kind of economy
they wish. They wish us to be silent; they would, if
they could, deprive Mr. Burr's counsel of an oppor-
tunity of defending him, that they might hang him up
as soon as possible, to gratify themselves and the gov-
ernment.

Mr. Mac Rae. That is a most unprincipled and most
unfounded assertion.

Mr. Burr said that he thought the gentlemen for the
prosecution were not altogether so wrong. Generally
the question was whether those gentlemen who said that
they were convinced that he had treasonable intentions
were impartial and proper jurymen ? They had avowed
their conviction as to these intentions in court ; that one
argument would apply to all ; and if the principle were
once fixed, it would not be necessary to renew it in the
case of each gentleman ; that they had entered into the
argument because they wished the principle to be settled,
and then it could be applied to the particular cases.

Mr. Hay. We wish the argument to proceed without
hearing ourselves grossly insulted ; without making ac-
cusations against us that are malicious and groundless.
We said nothing that could give offense to the feeling*



428 TRIAL OF AARON BURR.

of any gentleman. The gentlemen can not say with
truth, that we wish to deprive them of the right of de-
fending their client. The charge is unjust. I wish him
to have a fair trial, and justice to be done with all my
heart ; but I feel myself hurt, and grossly insulted, when
the gentlemen on the other side charge me with feel-
ings that are disgraceful to humanity. I trust, therefore,
that the arguments will no longer be conducted with
such indecorum.

The "Chief Justice had hoped that no such allusions
would have been made ; that the government ought to
be treated with respect, and that there was a delicacy to
be observed on that subject, from which he hoped there
would be no departure hereafter.

Mr. Burr. I rose to stop the progress of such lan-
guage when up before. I had made sufficient apologies,
if any were necessary, for any expressions which had
been used, and I had hoped that no allusions would Have
been made to the subject. It will be recollected, that I
have constantly manifested my displeasure at such ex-
pressions. I have carefully avoided such myself, and
imposed similar restraints upon my counsel ; and urged
that the government should be treated with the utmost
delicacy, though there was great provocation from the
gentlemen on the part of the prosecution, which would
have justified harsh terms. I hope these things will cease,
On the part of my counsel, I am sure they will cease.

Mr. Martin. I have no wish to hurt the feelings of a
single individual, but they have no right to hurt our
feelings ; and when I am so often interrupted and
charged with wasting the public time, and the gentle-
men still persist in their observations, I can not repress
mine.

As to the point before the court, what I am about to
adduce will show unequivocally that these gentlemen are
not proper jurymen. The emphatic language of the
constitution is that jurors shall be free from all bias and
prejudice. The constitution of the United States
requires that every criminal shall be tried by an "impar-
tial jury ; " that is, a jury that must be perfectly indiffer-
ent, and have no prejudice whatever on their minds ; that
every juror shall receive his impressions from the evi-



1NPANELING THE JURY. 429

dence which shall be adduced in legal form, and under
the sanction of an oath. But those gentlemen come with
minds already prepossessed against the prisoner, and it
will require stronger evidence to eradicate those previous
impressions ; whereas, according to the constitution,
there ought to be no impression against a criminal,
except what arises from the facts proved against him in
court, according to the rules of law on the subject. To
this effect, I will take the liberty of reading Reeves'
History of the English Law, vol. I, p. 320,, to show the
rigid impartiality required by the Law of England. [Here
Mr. Martin read it.]

Every objection that is valid against a juryman is
valid against a witness, but not vice versa. The credi-
bility of a witness may be questioned though he be
admitted to be sworn, but a juror must be free from
every objection ; exempt from everything that may pos-
sibly give a bias to his mind or judgment. He must have
no enmity against, or friendship with, the party whose
cause he is to try. That even a great or particular
familiarity, or being constantly at the same table with
him, will disqualify him from being a juror. See 2,d vol.
Reeves English Law, p. 446. The general principles
herein stated show how particularly cautious the law is
that jurors should in all cases be free from all impressions
and influence, and not liable to be suspected.

In confirmation of this doctrine, I will refer your
honors to Care's English Liberties, p. 245, a work of very
considerable merit. He states here the great benefits of
the trial by jury; that " no man's life shall be touched
for any crime whatsoever till found guilty on two trials;
that no person shall suffer death but by the verdicts of
twice twelve men against him, or two juries; one to find
the bill or charge ' to be true, and the other on
the merits, to decide on full and legal proof, adduced
on both sides, all of which jurors must be honest, sub-
stantial, impartial men." In page 248 he tells us what
he means by an impartial man : " that he ought to be
least suspicious, that is, to be indifferent as he stands
unsworn ; " that his mind should be free from every
cause of suspicion. In page 249 the author is still more
explicit. Among other qualities, he says, " that jurors



430 TRIAL OF AARON BURR.

must be free of and from all manner of affections, rela-
tions, and prejudices. This is a general proposition
extending to all cases whatsoever, civil as well as crim-
inal ; and if a man to be a proper juror must be divested
of all affection for, and all relationship to, the parties in
a civil case, how much more essential is it that he should
be in this situation in a case of life and death ? He must
be also " free from all prejudices," and come into court
in that situation ; that all his impressions are to be
received from legal evidence, delivered in open court,
under the sanction of an oath. His mind must be totally
indifferent in every respect. As to the idea of a person
charged being guilty or innocent, it is one of the most
sacred as well as humane maxims of the law that it pre-
sumes every man to be innocent, till an impression by
the evidence is made on the minds of the jurors to
remove that presumption. I do not understand this
quartering and halving of prejudices and partialities. It
is not sufficient that one man should have only a quarter
of the prepossession of another ; or that this man should
only have one-half, or three-fifths, or four-sevenths, of
the prejudice of that; but the law requires that he shall
not be biased at all ; that he shall be perfectly impartial.
The constitution has secured to us a privilege so sacred
that no law nor this court of justice can take it from us.
Sir, so jealous were the citizens of the United States of
their rights that they were dissatisfied with the constitu-
tion in its original form, because it did not expressly
provide that there should be a trial of every offense
" by an impartial jury." They therefore chose to have
it secured by the constitution, so that there thould be
no possibility of being deprived of an " impartial jury-
trial." The eighth amendment of the constitution pro-
vides that " in all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial by an impar-
tial jury of the State and district wherein the crime shall
have been committed."

This provision in the constitution which secures this
sacred right, is binding on every judge, sitting on the
trial of every criminal. It forbids him to force upon him
any juror that is not perfectly indifferent. Gentlemen
may say that we must take such men or have no trial at



IMPANELING THE JURY. 431

all. Gentlemen do not understand the subject correctly.
They take it for granted that Mr. Burr must be tried at
all events, and hanged, if an impartial jury can not be had !
But I contend that if an impartial jury can not be found
to try him, he can not be tried all ; because the constitu-
tion says that he " shall be tried by an impartial jury."
But I do not believe what has been said, that an impar-
tial jury can not be found in Virginia ! I have no doubt
that many impartial juries can be found in Virginia. The
plea of necessity of trial insisted on by the gentlemen is
not founded on fact. I can see no such necessity as to
render it compulsory on the court to try him in any
event, whether an impartial jury can be obtained or not ;
because the constitution, on the contrary, declares that
no person shall be tried till he can be tried " by an impar-
tial jury." But let us see what has been done in such
cases in that country from which we have derived our
system of laws. It is not thought necessary there that a
man shall be tried by a partial jury, rather than that he
should not be tried at all. 2d Mac Nally, p. 667, a trial
was put off on aft affidavit that the public mind was so
prejudiced by recent publications as to prevent a fair
trial ; because those publications had so poisoned the
public mind that a fair trial by an impartial jury could
not be obtained. To the same effect and in the same
page is the case of the King v. the Dean of St. Asaph,
and the case of the King v. Robinson, Brooks, and
others, where the court thought it correct to decide that
the trial should be postponed till another term, lest cer-
tain recent publications, giving an imperfect statement
of the evidence, should influence the public mind. If
such be the humanity of the law that it requires that
jurymen shall be selected from the public, who are with-
out bias, and persons were deemed improper jurymen in
that case on account of a trifling and temporary bias
produced by such publications, how much stronger is the
objection against a man being a juryman who has had a
bias on his mind for years and declared that bias? In
that case, there was propriety in putting off J:he trial,
because of the impossibility of selecting a proper jury
at that time, out of that public whose minds had been
poisoned by the publications.



132 TRIAL OF AARON BURR.

On the present occasion let us examine the situation
of the gentlemen called to serve as a jury. They are to
determine on the guilt or innocence of the accused, aris-
ing from, and depending on, certain transactions in the
western country. Do they come hither with a bias, or
do they come perfectly indifferent as to the innocences
criminality of Mr. Burr? The crime consists in intention
and act. The intention constitutes the most important
part of the crime. The act of itself may be innocent;
but treasonable views or designs annex guilt to it. These
gentlemen say, " We are perfectly satisfied as to the
treasonable intentions, designs, and purposes of the
accused." To have "believed that his purposes were im-
moral or dangerous, would suffice to exclude them from
serving on the jury, because the court is to give a name
to these crimes ; but when they go so far as to assert that
his designs were treasonable, the objection against them
is stronger. When they come forward with a full con-
viction on their minds that he has been engaged in prac-
tices dangerous to the community, do they come for-
ward with impartial, unbiased minds? * Their minds are
already half made up, and that half the most material
part. Twenty or thirty men on Blannerhasset's island,
and eight or ten of them armed, may have been perfectly
innocent, as if they came together with an intention to
shoot game, or for any other lawful and innocent pur-
pose. The witnesses may tell them, " We have not a
thought that he has committed treason, or that his mind
had treasonable designs; we know of no evidence to
that effect." But what do these gentlemen say ? That
they have come to hear witnesses prove such and such acts,
for they have already settled the intention in their own
minds to be treasonable. What do the constitution and
common reason, and common justice require ? Cer-
tainly that a juryman must be free from impressions
both as to the intention of the accused, and as to the
act. The intention constitutes the most important part
of the crime; and their minds ought to be as free from
impressions as to the intention as they ought to be as to
the act. But it may be said that they do not consider
that he did the act at Blannerhasset's island ; but your
honor does know that it has been said, and it will be



IMPANELING TH d JURY. 433

again said, that if the act be do-ie at the persuasion of
Mr. Burr, it must be considered as committed by him.
Let me familiarize this case with the common case of
burglary, which is the crime of breaking and entering a
house in the night time with an intention to steal. Sup-
pose a person is charged with the crime of burglary, and
a juryman called to act on his trial says, that he has his
mind perfectly made up that the person indicted in-
tended to steal ; but then he is not sure that he got
into the house. Then it is proved that he did enter the
house, and the only question is with what intent he did
enter the house? (because he may have gone in with a
mind perfectly innocent, without intending to take any-
thing.) Could such a juryman be truely said to be
impartial? t Most certainly he could not. When a
man is indicted for burglary, the juror to try him
must be as free from the belief that he intended to
commit burglary, as that he went into the house. He
must be free from every impression when he comes to
be sworn. These observations I have made to show,
that on principles of common law and justice, every jury-
man in every case, especially in criminal cases, ought to
be without any prejudice. How can they be said to be
free from prejudice who say, that they believe that Mr.
Burr had treasonable designs? Do they not come with
minds ready to listen to whatever may confirm his guilt?
and will they not listen with great reluctance to argu-
ments used to drive away their prejudices from their
minds? It is to be lamented, that the public mind is in
the state which gentlemen have described, but it certainly
is not so to the extent which is represented. I do not
consider the forty-eight gentlemen, who have been sum-
moned, as an accurate specimen of the people of Virginia.
To the honor of this populous state, I will say, that I
believe that a great many impartial juries might be se-
lected, and I should think it strange if one out of a hun-
dred had imbibed prejudices. It implies some degree of
malice in any man, judge or juryman, to suffer his mind
to be thus poisoned against a person accused, when the
law presumes his innocence. How came these impres-
sions to be on the public mind ? Did we busy ourselves
to mislead or influence it? Was not The Alexandria
28



434 TRTAL OF AARON BURR.

Expositor and other papers under the influence of our
rulers at Washington, constantly occupied in throwing
out dark hints on this subject long before the proclama-
tion of the president appeared? Have not great pains
been taken by inflammatory publications to impress the
minds of the people with a belief of his guilt. Those
who have done it have to answer for it ; and if they
have created such a prejudice that Mr. Burr can not be
rightly tried, they alone are to blame. I am sure that
the respectable gentleman on the other side (though I
do not charge him with having done so designedly) has
contributed to increase this prejudice. Has he not
frequently declared himself satisfied of the guilt of Mr.
Burr? The zeal which he has manifested in the prose-
cution was well calculated to create prepossessions, as he
must be presumed to be well acquainted with the evi-
dence against him. When gentlemen who have set
their hearts on the success of the prosecution declare that
they have no doubt of his guilt, other people will be
misled by their declarations, and conclude that he is
guilty. I submit the case to the court, and have no
doubt those jurymen will be deemed improper to serve
on this jury, because the constitution requires that the
mind of a juror shall be as free from bias, as if he had
never heard anything of the cause before. Can the gen-
tlemen conscientiously say that they stand indifferent ?
Can the court say so ? But if they be excluded from
serving, it is not the court which says that they shall
not be sworn on this jury, but the constitution of our
country which prescribes that every person accused " shall
be tried by an impartial jury."

Mr. Botts observed that every crime consisted of
a great many constituent parts ; and that the question
was, when a crime was analyzed, and a juryman con-
fessed, that he had made up his mind on a number of
those component parts, and said that there were two or
three of those parts out of the multitude upon which he
had not committed himself, could such a man be regarded
as impartial in the subject he is to investigate? Is he,
said Mr. Botts, without bias on the question? Is he free
from prejudice? The man who has made up his mind
on part of the crime, is not without a bias and some



1NPANELING THE JUR Y. 435

degree of predetermination. What portion of the crime
the intention may make, can not be exactly computed ;
but it is, at least, an important feature of it. Fix on
twelve jurors who have made up their minds as to the
intention, and you deprive us of half our defense. We
have a' right to be tried by a jury unprejudiced as to
every part of the crime. Mr. Burr has a right to insist
th:it he is not guilty either of the intention or of the act ;
and if there should be complete evidence of the one, yet
it will not suffice without full proof of the other. If you
fix on twelve jurors, who have made up their minds as
to the intention, and prove an act to them, they may find
a verdict of guilty ; when twelve jurors, who had not made
up their minds as to the intention, might be perfectly
satisfied that no crime had been committed, although an
act were proved to them ; because, without an intention,
there can be no guilt. With what face could Mr. Burr's
counsel stand before a jury, predetermined as to the inten-
tion, and urge on their minds an innocent intent? With
what face could we stand before a jury, who had made
up their minds as to the act, and insist that no act was
committed? It is of no sort of consequence, what desciip-
tion of intention should be associated with the act, aor
what act is to be associated with the intention : it is suffi-
cient that the intention is an ingredient of the crime.
Yesterday, when we took an exception to a juror because
he said that the accused ought to suffer punishment, he
was rejected, because his meaning might have been, and
probably was, that the accused deserved death, if he
ought to be punished at all. Could we offer any argu-
ment to the gentleman who had expressed this sentiment
to convince him that the prisoner ought not to suffer
any punishment ? There is no kind of question, but the
only inquiry with him would have been, what kind of
suffering he ought to be subjected to ? We should have
been precluded from investigating with any rational ex-
pectation of success, the general principles of innocence.
When the public mind is so infected with rancorous pre-
judices, it is necessary to select a jury entirely unbiased;
for he might as well be condemned at once, without a
trial, as to be tried by a jury prepossessed against him.
Mr. Burr said that he rose to narrow, and not to ex-



436 TRIAL OF AARON BURR.

tend th argument : not to add anything more, but to
throw out of the discussion what had been accidentally
and irregularly introduced. The question, said Mr. Burr,
is not whether great prejudices exist in the public mind, or
what produced them, but whether these jurymen ought
"or ought not to be regarded as impartial ? I sincerely
hoped that this point would not have been introduced'.
Certain analogies have been taken from the crime of
treason to other crimes. I wish the discussion of these
analogies at present to be omitted ; for they may here-
after, though only discussed in a collateral manner, be
construed into opinions. The inquiry is, whether in
civil or criminal cases, a juryman who has made up his
mind on part of the subject-matttr in controversy, ought
to be considered as impartial? It is evident, however,
that no man be considered as impartial who has made up
his mind as to the intention. Suppose the case of slaying
a man; the act of killing may be differently construed.
It may be justifiable, excusable, or clergiable ; or it may
be murder. Suppose on the trial of the party accused
of the murder that several jurymen come forward and say,
" We have no doubt of the murderous intent of the
prisoner, but we do not know whether he killed the
deceased or not," would such jurymen be considered as
impartial, or be permitted to be sworn to try him ?
Would not the intention in that case constitute the prin-
cipal part of the offense ? But I hope that these public
impressions, and analogies from treason will not be drawn
again into this discussion.

Mr. Mac Rae. It is never my wish in any period of
all the various discussions which have taken place before
the court in this case, to travel out of the way for the
purpose of making any observations calculated to defend
a government, which in my opinion requires no defense,



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 41 of 64)