Aaron Burr.

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

. (page 42 of 64)
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or to say anything to wound the feelings of the prisoner.
It has been invariably my wish to confine myself to
those points only which were under consideration. I
have most studiously and constantly avoided making any
remarks to wound the feelings, or excite the resentment
of the opposite counsel. Frequent as have been the oc-
casions when I was tempted to deviate from this course,
and to follow the example set before me, I carefully



IMPANELING THE JURY. 437

avoided availing myself of it, except on one occasion,
when the nature of the case was such that I could not
perform my duty without following the example, and re-
pelling an unmerited arid unprovoked attack. I will so
far respect the admonition of the court, that I will not
comment upon it, but will pursue the course that it may
think proper, and confine myself to the subject under
consideration. But I must at the same time be per-
mitted to remark that I shall not forever do this, if the
admonition of the court, reiterated over and over again,
will not be regarded by the gentlemen on the other side.
If they make undeserved attacks, I will retort them with
the force with which they ought to be retorted on the
quarter from which they come. This I will do in every
case, but more especially in cases of this description. It
will be unnecessary to state what my feelings and what
my wishes in this case are. But perhaps it may be a
duty which in some degree I owe to myself, after con-
sidering the quarter from whence the attack came, and
the manner in which it was made, to declare to this
court, to this people, and to the God of my being that I
have never felt that inhuman, that infamous, and worse
than diabolical disposition, to wish that the blood of the
prisoner, or of any other fellow-being, should be shed.
That man is a stranger to me, who thinks that I have
such a heart and disposition. I wish that the prisoner
may have a fair trial before an unprejudiced jury. I do
not wish that a single man should be impaneled on it,
who is not impartial. If there be a single individual on
this panel, who is not, within the precise meaning of the
constitution, impartial, and fit to decide between the
United States and Aaron Burr, I pray the court to reject
him. I would unite with the counsel of the accused for
the sake of the community and posterity, in praying, not
for the sake of justice to him only, but to every person
who may be in his situation in future, that such jurymen
may be excluded from serving on this jury. But if
nothing said by themselves, or by the witnesses called on
to show their incompetency, shall satisfy the court that
they are unfit to be jurors, I trust, that as they ought,
they will be admitted by the court.
1 It was unnecessary to read the authorities which the



438 TRIAL OF AARON BURR.

gentleman adduced ; the principles therein stated, are
not controverted ; but we deny their application to the
case now before the court. If any of those gentlemen
whose case is now before the court, be partial or biased,
with respect to this cause, or have really an ill-will to the
party accused, then their case comes within the objection.
Is there one of these jurymen who feels an ill-will against
Aaron Burr ? Does any of them entertain a personal
prejudice against him? Is there one of them who says
that bis mind has received a bias on the question whether
he be guilty of treason or not ? There is 'nothing which
goes to justify the opinion that they have a settled bias,
on the question submitted to the court ; which is that
sort of prejudice which the law recognizes as a valid ob-
jection against the competency of a juryman. It is true,
that most of them say, that they have formed an opinion
as to his intentions ; but the question is, whether he has
committed treason or not ? And they have received no
information to enable them to form any opinion at all on
this question. Indeed, if I mistake not, some of them
have gone so far as to declare their opinion to be, that
the prisoner had never committed an overt act. Now,
what is the argument of gentlemen on this point? It is
this: that this crime is made up of several ingredients, as
intention and act ; and that having formed an opinion on
any one of these component parts disqualifies a man for
a juror, as much as if he had formed his opinion on the
whole. This does not appear to me to be sufficient to
produce the disqualification contended for. They must
go infinitely beyond this point ; as that they believe that
Aaron Burr had formed treasonable intentions, in con-
nection with individuals, who had committed an overt
act. Does any of these gentlemen say that his opinion
extended so far ? Those intentions may have related to
other acts than those charged in the indictment, to acts
committed out of the district, in some other state than
Virginia. According to my best recollection of their an-
swers, the treason of which they spoke, related to acts
intended to have been perpetrated, not in Virginia but in
a different state (as Tennessee or Kentuck}'). and which,
therefore, are not now before the court. Some of these
gentlemen show that they have adverted to this distinc-



IMPANELING THE JURY. 439

tion, because they have referred to the opinion of one of
the judges now on the bench, formerly pronounced on
this point. It has been stated from the bench, that
these dangerous designs may have been entertained, but
that to constitute treason, they must have been matured
into acts. If it be not a bias in this court, if such a preju-
dice do not exist in the minds of the judges, why should
it exist in the minds of the jury ? They may have heard
the opinion of the court, that various criminal projects
may have been revolved in the minds of the accused, but
that this was not sufficient to constitute treason, without
the commission of an overt act ; and paying respect to
that opinion, they may have formed an opinion them-
selves, that there were treasonable intentions, but they
may have considered the rest of the opinion of the court,
that an act and an intention joined were necessary to
constitute treason, and that designs may have been
formed by a person who could not be charged with any
actual offense. With respect to the question, whether
the accused have conceived intentions, which have been
matured into treason by open acts, all of them have de-
clared, on that point, that they do not think that an overt
act has been committed. Suppose, then, that having
heard the opinion delivered by the court, they have, in
fact, adverted to the distinction, that the formation of
designs in the mind, without the commission of an overt
act, will not constitute or amount to treason, will they
not find a verdict of acquittal, if the necessary overt acts
be not legally proved before them ? If they declare that
they have no ill-will or personal hatred against him, will
the mere expression of an opinion, that he had enter-
tained treasonable designs, disqualify them from acting
as jurors? We wish, sir, that he may have a fair trial,
that he may be tried by persons as capable of trying him
impartially> as if they had never heard of the question
now before the court. In short, by such a jury as the
constitution of the United States has secured. I trust
it will never be said, that any of us wished to deprive
him of any privilege to which he is justly entitled. But
if these jurymen will declare, that they have formed no
opinion on the actual commission of the crime, that
they are unprejudiced and have no ill-will against



440 TRIAL OF AARON BURR.

the accused, it does appear to me, and I trust that
it will also appear to the court, that they are competent
to serve on the jury who are to try the accused.

Mr. Hay. The opposite counsel reminded the court,
with a frequency that surprised me, that they were en-
titled to an impartial jury. Nothing is more true. By
the constitution of the United States, by the principles
of common law, common sense, and common justice, the
accused has a right to be tried by an impartial jury.

But a question occurs, about which he has not been
pleased to say a single word, Who is an impartial juror ?
This is a question which I conceive has already been de-
termined by the law. I wonder that the gentleman's
extensive learning has not enabled him to give a correct
exposition of it. I can not subscribe to his doctrine on
this point. Impartial they may be said to be, who en-
tertain tiie common sentiments and feelings of a great
majority of the people, and who are taken from the mass
of the community. According to my judgment, such a
jury may be said to be impartial. Who shall say that it
is not an impartial jury? Will this court undertake to
pronounce its opinion that the majority of this district
are unfit for jurors, and not to be trusted to decide on
plain facts ; or on the true construction of the circum-
stances and transactions in the west, within the meaning
of this part of the constitution ? I believe the court
would be very unwilling to say so of all the people of
this district. It would be to pronounce a libel on the
state. The majority would very truly return the com-
pliment, by saying, that the opinion was one which
ought not to have been given, and by a person not com-
petent to give it. " You, who censure us in this manner,
show the prejudices by which you are yourselves act-
uated." What say these jurymen? That they have at-
tended to newspaper publications, which have given
them information on a subject which has excited uni-
versal attention. Every man in the community has
formed some opinion on it. I will venture to say, that
there is not a man in Virginia, however humble or ob-
scure his situation, or supine his disposition, or however
much occupied in business, who has not taken some
opinion or impression on this subject, and communicated



IMPANELING THE JURY. 441

it to others. But these things have been innocently
done, without any sentiment of ill-will to the accused.
The great majority of the people have received impres-
sions of those transactions from newspaper publications,
without any prejudice against, or even knowledge of the
accused. Is it reasonable, then, to suppose that the maj-
ority of the people, without any personal ill-will against
the accused, without even the least personal knowledge
of him, are by these general and slight impressions, ren-
dered incapable of deciding fairly and impartially? Can
it be reasonable, that the accused should have it in his
power to object to the great majority of the people, as
partial and incompetent, on such slight and trivial grounds
as these ? What is that impartiality which the law re-
quires in a juror? It is a disposition of mind to hear the
evidence on both sides, and decide thereon according
to the immutable principles of natural reason and justice.
To exclude from serving on his jury such an immense
majority of the people, on such slender grounds, would
probably secure impunity to the accused. There may
perchance be some ignorant and obscure individual, some
solitary hermit, shut up in the hollow of a tree, or in an
inaccessible cavern, secluded from all human concerns,
who has received no impression on this subject, because
the history of these transactions has never penetrated to
his solitude. But those who have intercourse with their
fellow-citizens, must have heard, in common with the
rest of the community, the many reports of a deep-laid
plot and conspiracy against the peace and union of these
states ; that the accused had formed some great ambitious
scheme for his own personal aggrandisement, to accom-
plish which, he felt no hesitation in hazarding, no re-
morse in producing, all the horrors of a civil war. We
are divided into parties who have different opinions on
political subjects. I do not say that they are exactly
arranged, or united to a man, as to this question ; but I
know that different sides have been taken : that every
man in this community has taken his side, and formed an
opinion either favorable or unfavorable on the subject.
But still the great majority of the people stand on ground
of perfect neutrality as to the actual guilt of Burr and
his associates. The impression whirh they may have re-



442 TRIAL OF AARON BURR.

ceived from reports, and newspaper publications, will
vanish like air, as soon as they hear the evidence, on
which they will be sworn to decide. I think this is the
language of common sense, and that it must convince
the court, however it may be disregarded by the gentle-
man who began the arguments on this point.

He has produced some authorities from Reeves and
Mac Nally, which do not bear on the subject in the least
degree : but I shall cite two that do apply to this case.
The first was a decision in the case of Callender, of which,
however, I did not then, nor do I yet, approve. I do not
think that in Callender's case Judge Chase pronounced
the law correctly. I do not see any difference between
forming an opinion, and forming and expressing an opin-
ion. A juryman ought to be excluded from serving on
the jury, if he have formed an opinion, though he may
not have communicated it to any person. It is the for-
mation, and not the expression of his opinion, that indis-
poses him to attend to the evidence. However, it was
not my business then, nor is it now, to settle the law ; but
I thought it then settled. The question put to the jury-
men, was, " Have you formed and delivered an opinion
on the subject-matter of this indictment?" There was
nothing said as to men's impressions in relation to the
acts of the accused, or their indulging prejudices against
him. There was not a man among the jury who tried
him, who had not the strongest prejudice against him, for
his improper conduct ; and very justly. It was pro-
nounced to be the law, that it was a libel. I never heard
it controverted before these remarks ; but that is not
the question now, but a question which is general, indefi-
nite, and vague; a nice metaphysical disquisition, how
far a man's mind, by impressions founded on mere reports,
is rendered incompetent to decide impartially on legal
evidence ? The question ought to be decided by the
court, whether a juryman be in that state of neutrality
between the United States and a prisoner, which will
enable him to decide impartially. According to Callen-
der's .case, it was sufficient to establish the competency
of a juryman, if he had not formed and expressed an
opinion on the subject-matter of the indictment ; and,
according to the decision, all these gentlemen are admis-



IMPANELING THE JURY. 443

sible, because none of them have formed, much less
formed and expressed, such an opinion. In 2 Hawkins,
ch. 43, sect. 29, on the subject of challenges, it is stated
to be law, " that it hath been adjudged to be no good
cause of challenge, that the juror hath found others guilty
on the same indictment ; for the indictment is in judg-
ment of law, severally against each defendant, for every
one must be convicted by particular evidence against
himself; " and in the 28th section, he says, that " it had
been allowed to be a good cause of challenge, on the part
of the prisoner, that a juror has declared his opinion be-
forehand, that the party is guilty or will be hanged, or
the like ; yet it hath been adjudged, that if it shall ap-
pear that the juror made such declaration from his knowl-
edge of the cause, and not out of any ill-will to the party,
it is no cause of challenge." Here it is decided that if a
juryman say that the party accused will be hanged, or is
guilty, not of the intention, but of the act, yet if he made
this declaration from his own knowledge of the cause,
and not from ill-will to the prisoner, he is a proper juror.
But these gentlemen have not declared as much; they
have not declared their belief that the accused is guilty
of the act, but have merely stated as the result of their
reflection on the transactions in the western country,
that he intended to commit the act. According to the
authority of this case, therefore, these gentlemen are
competent jurymen. I do not say that this is law posi-
tively, but I find it here written, and it appears to me to
be founded in good sense. According to the doctrine in
the other section just read, several men may be compre-
hended in the same indictment, all of whom may be
tried separately ; and the same juror who has found a ver-
dict against one of them, is competent to try another on
the same indictment. His former verdict is no cause of
challenge. But the evidence which is admissible against
one, may be so against the other. To have already de-
cided on that evidence, is to declare that the party is
guilty of the offense both as to intention and act ; and yet
this circumstance of having pronounced a verdict on
the same testimony, does not furnish grounds of chal-
lenge against him. Many more cases might be produced,
but these are sufficient to show that these are proper



444 TRIAL OF AARON BURR.

jurymen, if they be not under the influence of malice or
ill-will against the accused, whatever general impressions
their minds may have received. I admit, that if any of
them had made up his mind that the accused was guilty
of treason, it would be a good cause of challenge ; but
that is not the case with any of them. Mr. Martin has
made a quotation from Mac Nally, to show that the
court would postpone a trial, because the public mind
had been improperly excited by recent inflammatory
publications, touching the cause depending before it. I
will only observe that if this were a motion to postpone
the trial, this argument might apply, if the facts of such
publications existed ; but have they manifested any dis-
position or wish to obtain a postponement of the trial till
another term ? Why, then, do they urge such an argu-
ment, while they fail to move for a postponement ? They
wish to avail themselves of a principle, without perform-
ing the act which would justify its application. But
another observation of Mr. Martin may deserve particu-
lar notice ; that it would be proper to postpone the
trial, till a fair and impartial jury could be had.

Here Mr. Martin and Mr. Hay differed as to the pre-
cise import of the terms which he had used, and Mr. Hay
proceeded. He stated that the community was divided
into parties ; that there was an immense preponderance
on one side ; but that both parties had ascribed certain
designs to Mr. Burr, and had taken certain impres-
sions ; that these were only the common sentiments and
feelings of the country ; and that to exclude from the
jury all those who had these sentiments and feelings,
would amount to a declaration, that the great majority
of the people ought not to be trusted with a decision,
which might possibly be equal to an acquittal.

Mr. Wirt. It is much to be wished in this case, and
in every case, that a jury could be found of those pure
materials which Mr. Martin has desired. He seems to
expect that, in every case, and more especially in
the important case which now occupies the attention of
the court, the jury should come without any impression,
with minds as pure as the unsoiled snow on Dian's lap.
But is this practicable? Does the experience of the
world justify the hope that such a jury can be found?



IMPANELING THE JURY. 445

The case can not exist, and the law does not require it.
The authorities relied on by Mr. Martin are elementary
and abstract ; and are, I conceive, fiot to be trusted,
when a question of practice is to be decided by the court.
They deal in generals; and when they descend to par-
ticulars, they all express a distinct reference, and point
directly to the person of the accused. If these books
were fit to be trusted, and did not their generality ex-
clude them from familiar use, the language used in the
specification is clearly expressive of enmity or ill-will
against the accused. I beg leave to mention another au-
thority to show that these books are unfit to be trusted
as authority. In Reeves, it is stated that any friendship
for, or familiarity with the person accused, is a proper
ground of objection to a juror ; but these general phrases
are not sanctioned by practice. For in Tooke's trial, an
objection was made to John Thompson as a juror, be-
cause an intimacy of thirty-four years' continuance had
subsisted between him and Mr. Tooke; but the objection
was overruled by the judge. These two cases are contra-
dictory. It is important, in every case, that the princi-
ples of law should be fixed. It is important to the peo-
ple of every nation, that their rules of action should not
be continually floating on the waves of uncertainty, but
that they should be known and settled, in order that men
should know how to steer their course. I trust that they
will be always so in this country. Permit me to advert to
a decision in our own country ; the case of Callender. I
adduce it for the sole purpose of comparing it to the
doctrine now in discussion. When Mr. John Basset, one
of the jurymen, was called, he challenged himself, because
he had seen and read the book (The Prospect before Us)
for the publication of which he was prosecuted, and
made up his mind that it was a libel : but he had not
made up his mind as to Callender being the publisher of
the libel. His objection was overruled, and he was
sworn on the jury ; though he had made up his opinion,
that the publication was a libel, which I conceive to be
the principal point. He only did not know who was the
author. But what is the great question of libels in Eng-
land? Is it who is the author? Is it about the mere
fact of publication, that the brightest tears of eloquence



446 TRIAL OF AARON BURR.

are shed ? The question in every case is, libel or no libel,
The inquiry always is, whether it be a libel or not ? The
fact of publication te a question of a comparatively trivial
nature. Then when Mr. Basset was admitted on the
jury, according to the idea of one of the counsel on the
other side, Callender was robbed of half of his defense as
to that juror ; for the great question had been previously
settled in his mind. The fact to be ascertained was un-
important. Apply the principle of this decision in that
case to this case. We will suppose it to be the fact, that
these jurymen may have said that the assemblage of
men on Blannerhasset's island was high treason in the
parties composing it; but they knew not, and this would
not prove, that Mr. Burr was there or connected with it.
Here the two cases would be very similar.

These gentlemen would have made up their minds
that the assemblage was treasonable. John Basset made
up his mind that the publication was a libel. The great
facts would be fixed in the minds of the jurors in both
cases, and nothing would remain, but to trace the facts
to the party accused. But the present case falls far
short of that. These gentlemen say that they have
taken up some impressions from newspaper publications
that Burr had treasonable designs ; but they have not
said that the assemblage on the island was treason,
which consists of intention and fact ; and if they had said
so, they would be good jurymen, according to Basset's
case. He had made up his mind on the great fact that
the book was a libel ; and in this supposed case, these
jurymen would have concluded that the act of meeting,
armed, on the island, was treason ; but as they have not
gone so far as Basset, and he was received as a juror, the
court, I presume, will receive them as jurors. In another
point of view, Callender's case was stronger than this. In
that case, there was no possibility of counteracting the
impression that Basset had of the fact, that the book was
a libel. His opinion was formed upon the book itself ;
and there was no other evidence to produce, to change
that opinion. But these gentlemen have seen nothing
but the statements in the newspapers. They have re-
ceived no such fixed impressions ; their conviction is
commensurate with the evidence. Thev say that their



IMPANELING THE JURY, 447

conviction has gone as far as the depositions which have
been published seemed to justify, but not further ; that
they were willing to hear other evidence, and to retract
their opinions. But Basset's opinion was fixed, and ad-
mitted of no conflicting evidence. If,then, Mr. Burrwould
be stripped of one half of his defense by the admission of
these gentlemen on his jury, Callender was stripped of
much more than half of his defense by the reception of
Basset on his.

I said, when I first rose, that the kind of jury which



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 42 of 64)