Aaron Burr.

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

. (page 43 of 64)
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Mr. Martin contended for, could not exist. Necessity
has given the law in other cases ; and whenever that
necessity appears, submission to it must invariably fol-
low. Such a jury could not exist, unless it had fallen
from heaven. But this is not the only case in which a pure-
ly impartial jury could not possibly be obtained, from the
very nature of things. Consider the English rebellions
of the year 1715 and 1745. Recollect when the great
national question between the Pretender and the house
of Hanover, which occupied the throne, was so warmly
agitated. The people took up different sides of the
question, not only with zeal and ardor, but even with
phrenzy. Their gazettes and magazines were filled with
it. Every man in the nation was animated with the ut-
most enthusiasm, which carried him beyond the bounds
of reason and propriety. They not only wrote, but they
fought for it : and that in so little a kingdom, the
very clang and din of the battle of Culloden was heard
in every part of it. Was this a case in which an impar-
tial jury could have been expected? Could they find
any who had not formed an opinion on the cause of the
Pretender, and on the nature of the rebellion? Every
man in the kingdom had made up his mind on the great
facts; yet the rebels of the years 1715 and 1745 were
tried by parties who knew these facts, and hanged.
Those of the latter were tried, perhaps, by jurors who
had met and fought them on the plains of Culloden. Do
you believe that the question, whether they believed that
the pretender had an intention to seize the throne, was
put to those jurors who tried his adherents? His inten-
tion, and that of his followers, were facts of public-noto-
riety. The rule of Mr. Martin is a good rule, as it ex-



448 TRIAL OF AARON BURR.

Ists in the mind of a good man, or perfect philosopher.
It is a good rule for Utopia, or for Arabia Happy, or as
a, standard of theoretic perfection. But on those who
have human passions, it is in vain to expect it to operate.
Look at the trials in the year 1794 of Tooke, Hardy,
Thelvvall, and others. Were the jurors who tried these
men entirely without impressions? Did the causes ot
their prosecution produce no excitement ? Look at the
trials in Ireland of men who fought the battle of Wex-
ford. Were they tried by men who were entirely indif-
ferent, who had received no impressions from the great
events in their country. Had these created no interest,
no feeling ? Thus it was in the case of Hamilton Rowan :
men who were at the very focus of public illumination on
that occasion, were to sit on his trial ! Could such men
have come into the jury-box, as if they had never seen the
books, nor heard of the causes on which the prosecutions
were founded, as if they had come from another planet?
No such thing could be rationally expected. You will
find that the principle, laid down by Hawkins, is correct :
" That if a juror have declared beforehand that the party
is guilty, or will be hanged, or the like, and made such a
declaration from his knowledge of the cause, and not out
of any ill-will to the party, it is no cause of challenge."
It is justified by the reason and experience of mankind.
Impressions from the public prints, unconnected with
any ill-will to the accused, can not therefore be a cause
of challenge.

From the plains of Culloden and Wexford, let us come
to our own country. There have been no battles in this
country lately ; but there has been a subject which has
agitated every part of the country, in which every citizen
must have felt a warm interest. A man, heretofore dis-
tinguished, has been charged in all the public prints with a
crime so destructive of the peace and happiness of this
country, that he who could peruse these prints for the
last twelve months with adamantine indifference ; he who
could read the affidavits of Generals Eaton and Wilkin-
son without some emotion, can not be a man. No man
could see these things without feeling. I put it to your
hearts to determine whether any man who has a soul
that could grace the bosom of a man, could do it. There



IMPANELING THE JURY. 449

is not that base frigidity in the American character which
is insusceptible of impressions on subjects of great mo-
ment. Look at one of the very jurors whom the accused
has selected. No man acknowledges with more pleasure
than I do the correct conduct of that gentleman. I have
long known and respected him. No man can be more
conscientious. Yet he declares that, from the statements
in the newspapers, he has some impressions of the views
of the accused. Could less have been expected from any
man ? This was the source from whence his impressions
were derived ; and not hostility to the person of the pris-
oner himself.

In England, we see from the authority of Hawkins,
that if a person summoned as a juror, have declared
that the party accused is guilty, or will be hanged, and
made this declaration from his knowledge of the cause,
and not from ill-will to the party, it is- no cause of chal-
lenge ; and if he have found another man guilty under
the same indictment, it is no cause of challenge. As
this is the law, how can it be a cause of challenge, that
these jurymen have received some impressions from the
public prints ? It may perhaps be said, that a juror who*
had found another man guilty under the same-indictment,
must have made up his mind on the whole evidence in the
cause; and that therefore he ought not to be challenged
by another party prosecuted in that indictment. Noth-
ing can be more manifest than the absurdity of this
reasoning. It amounts to this: He is a good juryman,
if he have seen and heard the whole evidence ; but if he
have only heard some slight circumstances, a small por-
tion of the evidence, then he can not be admitted as'a
juryman ! Because his mind is locked up forever by his
former verdict, he is a good juror ; but a mere fleeting
impression disqualifies him entirely ! This, surely, is not
even the semblance of an argument. Take the other
ground mentioned by Hawkins, that " it is no cause of
challenge to a juryman, that he had declared from his
own knowledge, and not from ill-will to the prisoner,
that he is guilty, or will be hanged," and apply it to this
case. To have made such a declaration from his own
knowledge, means, that he made it on the evidence
of his own senses. As in the case of murder, suppose
28



450 TRIAL OF AARON BURR.

a juryman had by accident seen the person accused
actually commit the murder, but has no ill-will against
him, he is a good juror ; because it is impossible to
change his opinion. But if a gentleman of respecta-
bility will say, that he has a slight impression on his
mind from mere reports, or newspaper statements, he is
not a good juror at all. Because a man's mind is locked
up against evidence and argument beyond the possibility
of persuasion he is an impartial juryman: yet he whose
mind has only received a trivial expression, and is open
to evidence and conviction, must be rejected as partial
and improper. This is the substance of their argument.

I trust that whether you take the authority of this
court, or the practice in England into, consideration, you
will find that these gentlemen, having no ill-will against
the accused, and but a slight impression relating to the
cause, and not to him personally, ought not to be rejected.
They have stated themselves, that they had but a slight
impression o-n their minds. If the question, therefore,
depended on the depth of their impressions, these gen-
tlemen could not be excluded. When a man, who has
read some reports in the newspapers, professes himself
ready to hear further evidence, his mind is open to con-
viction, he is a fair juror, and can not be challenged as
partial : for as to a slight impression, it was impossible
even to hear of treason against their country, without
some emotion. I trust, therefore, that these gentleman
will be considered as proper jurors.

Mr. Wickham spoke to the following effect : I will
endeavor to show that the observations of the gentle-
men on the other side, and their construction of the law,
are incorrect. Their whole arguments rest on the basis
of necessity; but the gentleman last up has placed it in
a greater variety of views. I heard him with great
pleasure. His eloquence, which is at all times pleasing,
was at this time particularly interesting; but he used so
many tropes, and scattered so many flowers, that he re-
minded me of a Roman epigram on a lady, who was so
completely enveloped in decorations, that she was the
smallest part of herself. It was precisely so with the
gentleman's argument. It was so perfectly ornamented
and covered with figures and graces, that it constituted



2NPANELING THE JURY. 451

the least part of itself; and it was only by lifting a
flounce here, and a furbelow there, that you could dis-
cover the argument. What does he state? That from
necessity, and the nature of things, there can be no jury
obtained without some impressions. How does he
prove it ? The gentleman has hurried us to England
and the battle of Culloden, with as much ease as if he
had waved the wand of a magician, and told us, that the
din of arms wa3 so loud, that it might be heard six or
seven hundred miles ! He has compared the judicial de-
cisions in that country, at the period of the rebellion, to
the case now before this court, without having attended
to the natural and manifest distinction between them.
It was clear to every man in England, that there was a
rebellion in the country. An army traversing the coun-
try in military force and array, places taken, and battles
fought. Lords Balmerino, Kilmarnock, and Cromartie,
and many other men of distinction, were known to be
engaged in the cause of the Pretender, and concerned in
those transactions. Every man in the country could
reason upon the case ; the basis of his decision was a
chain of historical facts, known and recorded', which
could neither be distorted by prejudice, nor destroyed
by falsehood. How did the courts decide that there
was a jury to be found in England which could try the
prisoners impartially ? The existence of the rebellion
was an historical fact known to every man before the
trials; but whether the particular individuals accused
were actively concerned in it or not, depended on the
evidence against each of them. The case now before
the court would have been precisely similar, if it had
been founded on historical facts. If it had been estab-
lished that Mr. Burr, with twenty or thirty thousand
men, and a number of gun-boats, had descended the
Ohio; that he had taken New Orleans, had fought
several battles with General Wilkinson, and had been
brought before this court for trial, the jury would have
to decide, not upon their own prejudices, but on histori-
cal facts, and the evidence against each person accused.
But where are the established facts in this case ? The
president has declared that there is no sort of doubt of
his guilt. It is not pretended that he could know the



452 TRIAL OF AARON BURR.

facts himself, and he is liable to the deception of others.
Is his word to be taken as evidence in a court of justice,
and that adduced not even on oath ? But General Wil-
kinson has said so also. But his credibility may be here-
after impeached ; he is only a witness to prove certain
facts; but does he say that Mr. Burr is guilty of trea-
son? The supreme court has decided that his evidence
was not relative to the charge of treason. This whole
tale, then, is referred to the affidavit of General Eaton,
an ex parte witness. It rests on that alone; of which I
will say, though we may not be disposed to assert, that
it is untrue, -yet that it must be admitted that his tale is
marvelous, and not reconcilable to itself. Is this accu-
sation, then, founded on historical facts? Is it apiece
of history that is known to every man in the country?
This story, which has excited so much alarm and in-
terest in every part of the United States, is reduced to
the testimony of a single witness, who tells a most won-
derful tale. How, then, can he draw a comparison be-
tween this case and that of the rebellions in England?
The gentleman certainly did not consider the cases well,
or he would not have thought of such a parallel. The
battle of Culloden, for example, was a matter of public
and universal notoriety ; it was known to every man,
woman, and child in England ; and it could have formed
no part of the inquiry, on the trial of the rebels, whether
such a battle had been fought or not ?

There is not a single deposition to prove that treason
has been committed. The president's letter though it
confidently ascribes guilt to Mr. Burr, does not say that
he was guilty of treason. If one of these jurymen be not
disqualified by a preconceived opinion of Mr. Burr's trea-
sonable intentions, the rule will apply to the whole jury;
and if one of those gentlemen who think he had treason-
able designs, can be sworn to try him, twelve of them
can. What, then, would be our situation as his counsel?
Twelve jurors are impaneled, all of whom believe him
guilty of treasonable intentions. The crime of treason
consists of intention and act. In what attitude should
we stand before such a jury, to vindicate the innocence
of Mr. Burr's intentions? What course could we take ?
Their minds would be satisfied already as to his inten-



IMPANELING THE JURY. 453

tions; it would be in vain to urge evidence or authorities
to show that he had no treasonable designs. Would we
attempt to make an impression on such marble ? We
might as well abandon at once the cause of our client.
The jury would be made of such stubborn and impenetrable
materials, that he would be sure to be sacrificed. As an
aggravation of this evil, it is to be observed that their
belief respecting Mr. Burr's intentions, has an influence
and direct operation on the question, whether an act
have been perpetrated or not. They will listen more
attentively to evidence that will confirm, than to testi-
mony that will contradict it. Suppose there are two
witnesses, one who thinks there was an overt act com-
mitted, and another who thinks there was not ; the jury-
man who has made up his mind as to the intentions of
the accused, will very probably believe the testimony
which maintains the intention, and will not believe the
man who swears to the fact in opposition to the inten-
tion ; because the act is made more probable by the in-
tention, which is the first step towards it : but a juror
who had not believed that the accused had criminal
designs, would very probably not believe either of the
witnesses, as their testimony was contradictory, or might
believe him who swore that there was no overt act. I
insist that twelve jurors, with impressions fixed as to the
intention, though an honest, could not be an impartial
jury ; because the intention has a direct operation, not
on a part only, but on the whole cause ; it bears directly
on every point of the cause. That juror must be more
than man, who, believing the accused guilty as to
intention, will be able to stop at the point of sober
investigation, and not permit his judgment to be in-
fluenced by it with respect to the commission of an overt
act. The man whose belief is made up as to the inten-
tions of Mr. Burr, can not be said to be impartial on any
point in the cause. Let us suppose a very possible case :
that six jurors are impaneled, who say that they be-
lieve he had treasonable intentions, but they know noth-
ing of an overt act ; and six more are called up and sworn,
who admit that they have an impression as to an overt
act having been committed, but as to the intention know
nothing. Six have taken up one opinion and six another.



454 TRIAL OF AARON B URR.

Their opinion, on the whole, is unfavorable to the pris-
oner. How could his counsel address them on either of
those points? If they address them on the intention,
six of them are adamant on that point ; and if they ad-
dress them on the other point, it will be in vain, because
six of them are equally obdurate. On either side they
would meet with prejudice and resistance. It would be
like the case mentioned in Tristram Shandy, of the ab-
bess and nun, where it was necessary to pronounce a
certain criminal word, to make their mules move with
their carriage ; it would have been a sin for either of
them to utter the entire word, but they divided it into
two parts; one articulated one part and the other the
other, and thus effected their purpose, and avoided all
the sin of the expression. One half of the jury think
the intention existed, the other think the fact was per-
petrated ; an'd by dividing the transgression between
them, and compromising the intention and act, they
'may find a verdict of guilty. Those who have made up
their minds as to the design, will readily concur with
those who think that the overt act is unquestionable ;
and those who think the overt act notorious, will require
but little persuasion to believe that the intent was crim-
inal. But on many occasions, there is no doubt but the
whole crime consists in the intention ; and the whole
inquiry is, whether there were a criminal intent or
not?

I will now proceed to answer the arguments of coun-
sel in their order. Mr. Mac Rae says that the standard
with respect to the competency of jurors, depends on
whether they have a personal prejudice or ill-will against
the accused or not? What is meant by the word per-
sonal ? Is it a dislike to the appearance, the counten-
ance, or features of a man ? If it depended on this, Mr.
Burr would stand a better chance than most of his coun-
sel ; perhaps than most men. But if you believe him
guilty of a crime, is it not prejudice against him ? Is it
not prejudice to entertain such a belief against any man?
The usual ground of prejudice against a man is, that he
is guilty of criminal conduct.

But it is said by Mr. Mac Rae, that it would be nec-
essary, in order to exclude them as jurors, that they



IMPANELING THE JURY. 455

should have said that they thought Mr. Burr had been
guilty of treason in connection with Blannerhasset.
We have nothing to do with Blannerhasset. They
are not joined together in the indictment. The com-
plaint is not now before the court. Some of these gen-
tlemen say that they believe they intended to take New
Orleans. It should have been a joint indictment against
them ; and they could then know the charge in the in-
dictment, and meet it with the necessary defense ; but
there is nothing in it about New Orleans, and joint trea-
son with Blannerhasset.

But u Callender's case is directly in point, where Mr.
Basset was determined to be a proper juryman." What
was it ? Did he pronounce any opinion on the inten-
tion of Callender? He said the book was a libel. That
was not an opinion, but a fact. But did he say that
Callender was the author or publisher of it ? Suppose
he had been called on for a definition of sedition.
What would he have said ? Did he say that he had
made up his mind that Callender was guilty of intending
to publish a seditious libel? Callender was defended by
several learned counsel of this bar. Did they attempt
to deny that it was a libel ? Did Mr. Randolph, or
the other gentlemen who managed the impeachment
of Judge Chase, in the senate of the United States,
deny that it was a libel? It ought also to be recol-
lected that thisj very senate of the United States de-
cided by a majority of eighteen against sixteen, that the
decision of Judge Chase, in not rejecting Mr. Basset as
a juror, because he said that he had made up his mind
from the extracts said to be taken from the book, that
it was a libel, was illegal. Sixteen, out of thirty-four,
thought it correct, and eighteen thought it corrupt.*
This was the case, if I recollect right. I then thought,
and still think, the opinion which he gave was law. It
was palpable and manifest to every person that the book
was a libel; and the declaration of that fact is not like
imputing a criminal design to the party accused ; and,

* This was immediately discovered to be a mistake. The second ar-
ticle of the impeachment was for overruling Mr. Basset's objection.
On this article ten senators only voted guilty, and twenty-four not

guilty.



456 TRIAL OF AARON BURR.

therefore, the admission of Mr. Basset as a juror, though
correct and proper, ought not to be considerad as a pre-
cedent for the admission of these gentlemen on this jury.
If these gentlemen came forward and gave a correct de-
finition of treason, they would be improper jurymen.
They ascribe such intentions to the accused as may sup-
port the charge of treason.

But these jurymen say that they think they can give
a fair verdict. I mean no reflection on the gentlemen,
by saying that they may be mistaken. I am cofident
they have no intentional prejudice. But what is preju-
dice? Do not most men believe their own opinions to
be correct? Is it easy for every man to discern and re-
tract his erroneous opinions? If a man were to go so
far as to say that he could conquer prejudice, still it
ought only to be admitted that he believes so ; the frailty
of human nature forbids complete confidence in such
cases; his belief ought not to be depended upon, how-
ever respectable he may be.

But Mr. Hay has given us a definition of an impartial
juryman, which neither Mr. Martin nor I would ever
have thought of. What was it? That the common sen-
timents and feelings of a majority of the people of any
country, form the criterion of impartiality and truth !
Take this position to be correct, let this new principle be
adopted, and the study of the law will be rendered very
easy and short; and to some gentleme|i, very pleasant.
It would save a great deal of time and trouble. A stu-
dent, instead of poring over the black-letter in his own
closet, and wearying his faculties for years in search of
principles and scientific knowledge, need only go about
to barbacues, horse-races, cock-fighting, and other
public meetings and places of amusement, to learn the
common sense of mankind ! A lawyer would consult
his law books, but Mr. Hay would go about collecting
the sense of the nation. Mr. Wirt has given us another
and a better rule, to which most men would give the
preference. He has told us, that the principles of law
ought to be certain, and not continually floating on the
ocean of uncertainty. But he is contradicted by Mr.
Hay. He advises us to follow the principles of law, but
Mr. Hay prefers the popular opinion ; the sentiments of



IMPANELING THE JURY. 457

a majority of the people to be ascertained, I presume, by
officers appointed to collect them in every district.

Mr. Hay denied that he expressed such a sentiment, and
insisted that his words and meaning were misrepresented.

Mr. Wickliam proceeded. The gentleman did say, that
an impartial juror was one who had the common senti-
ments of the mass or majority of the people. Compare
this sentiment with those of Hale, Hume, Robinson, and
other eminent writers, and see how very different they are.
I understood him distinctly, that impartiality in a juror,
depended on his concurrence vyith the public senti-
ments. That is the true meaning of what he said. I
follow it up to its consequences, and if the result be ab-
surd, he is not, for that reason, at liberty to deny his po-
sition. Is every man in the community to be consulted ?
Is there then to be an " appel nominel," as there was
in France, when the French people were asked, " Shall
Napoleon be emperor of the French?" The public
opinion can not be truely ascertained. I do not believe
that the opinion of the jurymen, whose case is under
consideration, is this public opinion which is so much re-
ferred to ; but if public opinion, and sentiment, and feel-
ing, were to be resorted to as the true test of .impartial-
ity, what would he do with the passions of the turbulent,
the lawless, and the violent? Has he any motive for es-
tablishing this public opinion as a rule of justice and fair-
ness? Has he been scattering and fomenting these pop-
ular prejudices, and spreading declarations of the guilt
of the accused all over the country ? He has repeatedly
declared that he has no doubt of his crime. I hope that
there is no concebtion between his criterion of impartial-
ity, and his frequent declarations of Mr. Burr's guilt.
Mr. Hay agrees, that if they attempted to make prose-
lytes, it would justify their rejection. Several of these
jurymen did acknowledge that they had publicly argued



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 43 of 64)