Aaron Burr.

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

. (page 44 of 64)
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to inculcate a belief of Mr. Burr's guilty designs, and
justified the measures adopted by the government
against him. On the gentleman's own admission, there-
fore, they are not proper jurors. I mean no imputation
against these gentlemen ; they had a conviction on their
own minds of his evil designs, and fchey wished to com-
munica e it to others ; they are to be respected because



45 8 TRIAL OF AARON BURR.

they acted under a conviction of the truth. But this argu-
ment proves too much; that if every one of these jury-
men had declared that Mr. Burr was guilty of an act of
treason, it would make no difference, but they would all
be impartial jurymen ; because it happened to agree with
the public opinion. It would prove everything. It
might prove, that the sentiments of every man who did
not conform to the public opinion, when it was under a
different direction from what it is at present, were then
wrong; and that those who do not now subscribe to
what is called public opinion, are as culpable as those in
the minority were formerly; so that what is right one
day, may be wrong another.

The gentleman has candidly informed us, that the
country is divided into two classes ; and that every man
has taken his side of this question. I should hope that
the gentleman's position was not correct, at least, not in-
variably. If it were so, it would be unfavorable to truth
and justice. The majority always possess sovereign
power in the United States; but the majority change.
He who has had the happiness of thinking and acting
formerly with the great majority of the people of the
United States, finds himself now decidedly opposed by
such a majority. The public opinion is continually fluc-
tuating; and what was law under the administration of
John Adams, is not law under the administration of
Thomas Jefferson. What was public opinion then is
not public opinion now. In fact, it is impossible to know
what public opinion is. So that, according to the gen-
tleman's doctrine, the impartiality of a juror, instead of
being founded on correct, immutable, and permanent prin-
ciples, would be continually floating on the waves of un-
certainty ; an evil which is so much and so justly depre-
cated by his colleague.

But it is said, on the authority of Hawkins, that a
man may be a proper juror to try a person accused, al-
though he knows the fact on which the prosecution is
founded. Does any one of these gentlemen say that he
knows the fact? Not one of them pretends to such
knowledge. What, then, can be said of an authority that
has no application ?~ It is not necessary to acknowledge
or deny the validity of this authority.



IMPANELING THE JURY. 459

But the gentleman says, " that it is impracticable, or
something approaching an impossibility, to obtain an
impartial jury, if the objection against these jurymen
shall prevail. We deny this impossibility ; we have al-
ready obtained four jurors, and have no doubt the rest
can easily be got. I will say nothing of the panel being
composed of men of whom so many had made up their
minds. I have no doubt that it was accidental, and that
the marshal intended to discharge his duty with fidelity
and propriety.

Mr. Wirt says that these elementary writers, Hale,
Hawkins, Reeves, and others, are not to be regarded ;
that they are not always the test of truth. It may be
admitted that they are not uniformly so, but it is cer-
tain that they are, and ought to be generally so consid-
ered. Some of these elementary authors, such as Lord
Coke, are of inestimable value.

As to the variance stated by Mr. Wirt, between one of
the elementary principles of Reeves and a case deter-
mined by Chief Justice Eyre, the case of Home Tooke a
reference to the report of that trial will show that that
case had not been accurately stated to this court. I have
too high a respect for Mr. Wirt, to say that he has will-
fully misrepresented the case ; but he has certainly mis-
understood the opinion of the court. Thompson, the
juryman, was not in court. He had exercised the dis-
cretion of absenting himself; and the excuse made for
him was, that he had been too long and too intimately
acquainted with the prisoner. Was it a question, whether
he were to be received as a juror or not? Was it a
question put to the prisoner in court, " Do you like
this man or not?" It was not. The chief justice said
that "it was no excuse." No excuse for what? . Not
from serving on the jury, but for not appearing at all in
court. The expression of Chief Justice Eyre was very
mild, in answer to the apology made for the absence of
the witness.

Mr. Wirt here interrupted Mr. Wickham, and said,
that he would submit it to any candid mind, which of
them gave the correct interpretation of the passage. He
read it and made some comments on it.

After some observations by both gentlemen, the Chief



460 TRIAL OF AARON BURR.

Justice said that he had no doubt that each of the gen-
tlemen had stated what was the conviction of his own
mind; but that he thought it immaterial to the question
now in discussion, which of them was correct.

Mr. Wick/iam. I shall make one single remark. We
came here to try Mr. Burr on the law and the evidence,
and not by the public opinion. The life of no man
would be secure, if he were to be tried, not according to the
known rules and principles of law, but the caprice and
levity of what is deemed public opinion. A trial by a
prejudiced jury would be nothing but a mockery. What
was the meaning of the provision in'the constitution, but
to protect persons accused from the unjust violence of
popular opinion ? Was not the security of innocence
against unjust persecution, the object of the amendment
of the constitution? Was it not known to the framers
of our constitution, who had the volume of human na-
ture before them, that the time would at length arrive,
when some individual would be held up as a mark to
public indignation, and sacrificed as a victim to popular
phrenzy and political jealousy? Was it not to prevent
this, that the constitution originally forbade the legisla-
ture to change the law of treason, by fixing it within pre-
cise and well-defined limits ? Was it not for this cause,
that a subsequent amendment was introduced, declaring
that " in all criminal prosecutions the accused shall en-
joy the right to a speedy and public trial by an impartial
jury?" I contend that all these salutary precautions
have been taken to guard against the pernicious effects
of this public opinion, and that these gentlemen being
prejudiced against the accused, can not be considered as
impartial within the meaning of the constitution.

Mr. Randolph, at the request of the court, read Judge
Chase's answer to the second article of the impeachment
against him, which arraigns his decision in the case of
Basset. See appendix to the " Trial of Judge Chase,"
pages 19, 20, and 21.

Mr. Randopk then observed that he had not intended
to say anything on the subject now discussed, because
he expected that objections would have been made to par-
ticular individuals only; but that he had since seen, that
a. most serious blow was meditated at the whole system



IMPANELING THE JURY. 461

of jury trial. For, said Mr. Randolph, whether accident
or Heaven have given us this boon, it is our duty to pre-
serve pure and perfect, and transmit unimpaired to pos-
terity, this only palladium against oppression. Vain will
be all this parade about the trial by jury, if a judge will
calmly sit on the bench and connive at its violation. If
the courts do not defend this sacred right, can it be said
that any man's life is safe ? The trial by jury is not a
beneficial reality, but a mere fiction of law. Away with
justice ; away with courts; tell me not that I am safe in
my own habitation, if a doctrine like this be to prevail.
It is a mockery, sir, to talk of the benefits of the trial by
jury, if men whose minds are impressed with prejudices
against a person accused, shall decide his fate ! Can they
be impartial, who on a charge consisting of several points,
have made up their minds against him on all, except a
little fragment ? Would it be conformable to the equal
administration of justice to force such a jury on him ?

Analogies have been stated between other crimes and
the charge now before the court. Other gentlemen have
quoted the cases of murder and burglary. To these I
shall add the crime of uttering false money, knowing it
to be false. If a man brought forward as a juror on the
trial of a person charged with this offense, were to state
that he knew not whether the accused passed the money
or not, but that he was certain he must have known it
to be false, would he not be rejected as an incompetent
juror ?

But we are told, on the authority of Hawkins, ch.
43, sec. 28, that by the law of England it has been ad-
judged that " if a juror has declared beforehand that the
party is guilty, or will be hanged, or the like, it is a good
cause of challenge ; but if the juror made this declara-
tion from the knowledge of the cause, and not out of
any ill-will to the party, it is no cause of challenge ; "
and in section 29 " that it hath been adjudged to be no
good cause of challenge, that the juror hath found others
guilty on the same indictment."

Sir, does not this doctrine strike your mind with as-
tonishment ? Not if you advert to the reference made
in support of it. He has taken a posterior doctrine in
preference to an anterior ; so that it would seem that



162 TRIAL OF AARON BURR.

the latter had been a revocation of the former. But ex-
amine it. What does he refer to? To the Year Books
in the time of Henry VII. when liberty had not been
established in England. This very Hawkins, in whose
bloody doctrine confidence is now placed, instead of ad-
vocating the more liberal doctrines of his own day, on
the subject of juries, refers to the reign of the Tudors,
when not a spark of liberty existed. Were he correct
in his assertion that this was the law of England, what
influence ought it to have on the practice in this coun-
try, where the terms of the constitution are so explicit
and imperative, that the accused shall enjoy the right to
a speedy and public trial by an impartial jury? Will
our courts subscribe to his inferences? He had advanced
a contrary doctrine in a preceding section. Will you
say that he shall be justified in supporting and drawing
contradictory principles and conclusions? If he main-
tain positions which are perfectly inconsistent, ought
they not to be tried by a critical examination of the au-
thorities to which he refers? and if the court find that
his assertions are not fairly deducible from the authors
relied on, will they not put him aside and declare that
he has no authority on this point? If the gentleman
who quoted him had looked at the 2/th section of the
same chapter, he would have found all the doctrines on
which he commented so fully, entirely destroyed. He
there says that " this exception against a juror, that he
hath found an indictment against the party for the same
cause, hath been adjudged good ; not only upon the
trial of such indictment, but also upon the trial of an-
other indictment or action, wherein the same matter is
either in question, or happens to be material, though
not directly in issue." So that wherever it is the same
question on which he decided in a former indictment, or
happens to be a material point, he is to be excluded.
Is it not all-important what the intention is? Is it not
a material point ? According to this section, if it be a
material point, he is ^o be excluded as a juror, because
he had made up his mind before on the same subject. It
is not merely that if he decided on the whole, but if he
have only decided a material point of the same cause,
he is incapacitated from serving as a juror.



IMPANELING THE JURY. 463

Mr. Wickham has anticipated me in showing the ef-
fect of different jurors acting on a conviction of different
parts of the guilt; that one juror having formed his opin-
ion on one point, and another on another, they may
compromise, till by mutual complacency and acquies-
cence they make the accused the victim by a verdict of
condemnation.

I will make one observation on the case of Home
Tooke, to show that Thompson did not attend the
trial, and that the construction which gentlemen put on
it is incorrect. If Thompson had been present, the law
applying to the case was different from what they con-
tend it to be. It is said that a friendship or intimacy
with a party in a suit is not a cause of exception to a
witness, though it always is to a juror. Some books say
that if a juror be returned by a party, he is disqualified
from serving. The law with respect to the admission or
exclusion of a juryman, must vary according to the cir-
cumstances, and the nature of the influence which a
party in a cause has over his mind. They suppose the
question before the judge to have been, " Shall he be ex-
cused from serving as a juror or not ?" It was not so. It
was whethef he should be excused for non-attendance?
A mere acquaintance with another for thirty-four years,
does not exempt a man from being on a jury to try
that other ; but if the intimacy and friendship be so
great as to create an influence over him, he would be
rejected of course.

I shall not detain the court any longer, but shall con-
clude with a hope that you will preserve the purity of
jury-trial from violation ; that you will take more than
common pains to preserve it free and unfettered. I ap-
peal to the volume of human nature ; I appeal to the
human heart. I could appeal to Mr. Hay's great tri-
bunal itself, to determine whether there ever were a man
who could dispassionately and impartially try a cause,
one half of which he had already prejudged ?

Mr. Martin then observed that in Tooke's case no
challenge was stated to have been made to Thompson
the juror, by either the king or the prisoner ; and of course
the question could not have occurred, whether he should
be excused from serving on the jury.



464 TRIAL OF AARON BURR.

The Chief Justice then delivered the following op-
inion :

The great value of the trial by jury, certainly consists
in its fairness and impartiality. Those who most prize
the institution, prize it because it furnishes a tribunal
which maybe expected to be uninfluenced by any undue
bias of the mind.

I have always conceived, and still conceive, an impar-
tial jury as required by the common law, and as secured
by the constitution, must be composed of men who will
fairly hear the testomony which may be offered to them,
and bring in their verdict according to that testimony, and
according to the law arising on it. This is not to be
expected, certainly the law does not expect it, where the
jurors, before they hear the testimony, have deliberately
formed and delivered an opinion that the person whom
they are to try is guilty or innocent of the charge alleged
against him.

The jury should enter upon the trial with minds open
to those impressions which the testimony and the law
of the case ought to make, not with those preconceived
opinions which will resist those impressions.

All the provisions of the law are calculated to obtain
this end. Why is it that the most distant relative of a
party can not serve upon his jury ? Certainly the single
circumstance of relationship, taken in itself, unconnected
with its consequences, would furnish no objection. The
real reason of the rule is that the law suspects the rela-
tive of partiality ; suspects his mind to be under a bias
which will prevent his fairly hearing and fairly deciding
on the testimony which may be offered to him. The
end to be obtained is an impartial jury; to secure this
end, a man is prohibited from serving on it whose con-
nection with a party is such as to induce a suspicion of
partiality. The relationship may be remote ; the person
may never have seen the party ; he may declare that he
feels no prejudice in the case, and yet the law cautiously
incapacitates him from serving on the jury, because it
suspects prejudice ; because in general persons in a simi-
lar situation would feel prejudice.

It would be strange if the law were chargeable with
the inconsistency of thus carefully protecting the end



IMPANELING THE JURY, 465

from being defeated by particular means, and leaving it
to be defeated by other means. It would be strange if
the law would be so solicitous to secure a fair trial as to
exclude a distant unknown relative from the jury, and
yet be totally regardless of those in whose minds feelings
existed much more unfavorable to an impartial decision
of the case.

It is admitted that where there are strong personal
prejudices, the person entertaining them is incapacitated
as a juror ; but it is denied that fixed opinions respect-
ing his guilt constitutes a similar incapacity.

Why do personal prejudices constitute a just cause of
challenge? Solely because the individual who is under
their influence is presumed to have a bias on his mind
which will prevent an impartial decision of the case
according to the testimony. He may declare that not-
withstanding these prejudices he is determined to listen
to the evidence and be governed by it ; but the law will
not trust him.

Is there less reason to suspect him who has prejudged
the case, and has deliberately formed and delivered an
opinion upon it? Such a person may believe that he will
be regulated by testimony, but the law suspects him,
and certainly not without reason. He will listen with
more favor to that testimony which confirms, than to
that which would change his opinion; it is not to be ex-
pected that he will weigh evidence or argument as fairly
as a man whose judgment is not made up in the case.

It is for this reason that a juror who has once ren-
dered a verdict in a case, or who has been sworn on a jury
which has been divided, can not again be sworn in the
same case. He is not suspected of personal prejudices,
but he has formed and delivered an opinion, and is there-
fore deemed unfit to be a juror in the cause.

Were it possible to obtain a jury without any prepos-
sessions whatever, respecting the guilt or innocence of the
accused, it would be extremely desirable to obtain such
a jury; feut this is perhaps impossible, and therefore will
not be required. The opinion which has been avowed
by the court is, that light impressions which may fairly
be supposed to yield to the testimony that may be
offered ; which may leave the mind open to a fair consid-
30



466 TRIAL OF AARON BURR.

eration of that testimony, constitute no sufficient objec-
tion to a juror ; but that those strong and deep impress-
ions, which will close the mind against the testimony
that may be offered in opposition to them which will
combat that testimony and resist its force, do constitute
a sufficient objection to him. Those who try the impar-
tiality of a juror, ought to test him by this rule. They
ought to hear the statement made by himself or given
by others, and conscientiously determine, according to
their best judgment, whether in general men under such
circumstances ought to'be considered as capable of hear-
ing fairly, and of deciding impartially, on the testimony
which may be offered to them ; or as possessing minds in
a situation to struggle against the conviction which that
testimony might be calculated to produce ? The court
has considered those who have deliberately formed and
delivered an opinion on the guilt of th % e prisoner, as not
being in a state of mind fairly to weigh the testimony,
and therefore as being disqualified to serve as jurors in
the case.

This much has been said relative to the opinion de-
livered yesterday, because the argument of to-day appears
to arraign that opinion, and because it seems closely con-
nected with the point which is now to be decided.

The question now to be decided is, whether an opinion
formed and delivered, not upon the full case, but upon
an essential part of it, not that the prisoner is absolutely
guilty of the whole crime charged in the indictment, but
.that he is guilty in some of those great points which con-
stitute it, do also disqualify a man in the sense of the law
and of the constitution from being an impartial juror?
This question was adjourned yesterday for argument, and
for further consideration.

It would seem to the court that to say that any man who
had formed an opinion on any fact conducive to the final
decision of the case, would therefore be considered as dis-
qualified from serving on the jury, would exclude intelli-
gent and observing men whose minds were really in a situa-
tion to decide upon the whole case according to the testi-
mony, and would perhaps be applying the letter of the rule
requiring an impartial jury with a strictness which is not
necessary for the preservation of the rule itself. But if



IMPANELING THE JURY, 467

the opinion formed be on a point so essential as to go
far towards a decision of the whole case, and to have a
real influence on the verdict to be rendered, the distinc-
tion between a person who has formed such an opinion,
and one who has in his mind decided the whole case,
appears too slight to furnish the court with solid ground
fur distinguishing between them. The question must
always depend on the strength and nature of the opinion
which has been formed.

In the case now under consideration the court would
perhaps not consider it as a sufficient objection to a juror
that he did believe and had said that the prisoner at a
time considerably anterior to the fact charged in the in-
dictment, entertained treasonable designs against the
United States. He may have formed this opinion and
be undecided on the question whether those designs
were abandoned or prosecuted up to the time when the
indictment charges the overt act to have been commit-
ted. On this point his mind may be open to the testi-
mony, although it would be desirable that no juror
should have formed and delivered such an opinion, yet
the court is inclined to think it would not constitute
sufficient cause of challenge. But if the juror have
made up and declared the opinion that to the time when
the fact laid in the indictment is said to have been com-
mitted, the prisoner was prosecuting the treasonable
design with which he is charged, the court considers the
opinion as furnishing just cause of challenge, and can
not view the juror who has formed and delivered it as
impartial, in the legal and constitutional sense of that
term.

The cases put by way of illustration appear to the
court to be strongly applicable to that under considera-
tion. They are those of burglary, of homicide, and of
passing counterfeit money, knowing it to be counterfeit ;
cases in which the intention and the fact combine to
constitute the crime.

If, in case of homicide, where the fact of killing was
admitted or was doubtful, a juror should have made up
and delivered the opinion that, though uninformed rela-
tive to the fact of killing, he was confident as to the
malice ; he was confident that the prisoner had deliber-



468 TRIAL OF AARON BURR.

ately formed the intention of murdering the deceased,
and was prosecuting that intention up to the time of his
death ; or if on the charge of passing counterfeit bank
notes, knowing them to be counterfeit, the juror had
declared that, though uncertain as to the fact of passing
the notes, he was confident that the prisoner knew them
to be counterfeit, few would think such a person suffi-
ciently impartial to try the cause according to testimony.
The court considers these cases as strikingly analogous.

It has been insisted that in Callender's case an opinion
was given different from that which is now delivered.

I acknowledge that I had not recollected that case
accurately. I had thought that Mr. Basset had stated
himself to have read the book charged as a libel, and to
have formed the opinion that the publication was a libel.
I find by a reference to the case itself that I was mis-
taken ; that Mr. Basset had not read the book, and had
only said that if it were such a book as it had been rep-
resented to him, he had no doubt of its being a libel.
This was. going no further than Mr. Morris had gone, the
challenge against whom has been overruled. Mr. Morris
had frequently declared that if the allegations against
the prisoner were true, he was guilty, and Mr. Morris
was determined to be an impartial juror.

With respect to the general question, put in Callender's
case, the court considers it as the same with the gen-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 44 of 64)