Aaron Burr.

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

. (page 45 of 64)
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eral question put in this case. It was, " Have you made
up and delivered the opinion, that the prisoner is guilty
or innocent of the charge laid in the indictment ?" That
is in substance, " Have you made up and delivered the
opinion that the prisoner has been guilty of publishing a
false, wicked, and malicious libel, which subjects him to
pnnishment, under the act of congress, on which he is
indicted?" The same question is now substantially put.
Explanatory questions are now put when they are neces-
sary ; and certainly explanatory questions might have
been put in Callender's case, had they been necessary.

Had the case of Mr. Basset even been such as I thought
it, had he read " The Prospect Before Us," and thought
it a libel without deciding who was its author, he would
have gone no further than to have formed an opinion,
that certain allegations were libelous, which is not dis-



IMPANELING THE JURY. 469

similar to the opinion, that certain acts amount to trea-
son. If, for example, a juror had said, that levying an
army for the purpose of subverting the government of
the United States by force, and arraying that army in a
warlike manner, amount to treason, no person could sup-
pose him on that account, unfit to serve on the jury.
The opinion would be one in which all must concur; and
so was the opinion that " The Prospect Before Us " was
a libel. Without determining whether the case put by
Hawkins, b. 2, ch. 43, sec. 28, be law or not, it is suffi-
cient to observe that this case is totally different. The
opinion which is there declared to constitute no cause of
challenge is one formed by the juror on his own knowl-
edge ; in this case, the opinion is formed on report and
newspaper publications.

The argument drawn from the situation of England
during the rebellions of 1715 and 1745, with respect to
certain prominent characters, whose situation made it a
matter of universal notoriety, that they were the objects
of the law, is founded entirely on the absolute necessity
of the case ; and the total and obvious impossibility of
obtaining a jury whose minds were not already made
up. Where this necessity exists, the rule, perhaps,
must bend to it, but .the rule will bend no further than
is required by actual necessity. The court can not be-
lieve that at present the necessity does exist. The cases
bear no resemblance to each other. There has not been
such open notorious war as to force conviction on every
bosom respecting the fact and the intention. It is be-
lieved that a jury may be obtained composed of men,
who, whatever their general impressions may be, have
not deliberately formed and delivered an opinion respect-
ing the guilt or innocence of the accused.

In reflecting on this subject, which I have done very
seriously since the adjournment of yesterday, my mind
has been forcibly impressed by contemplating the ques-
tion precisely in its reverse. If, instead of a panel com-
posed of gentlemen who had almost unanimously formed,
and publicly delivered an opinion that the prisoner was
guilty, the marshal had returned one composed of per-
sons who had openly and publicly maintained his inno-
cence ; who had insisted, that notwithstanding all the



470 TRIAL OF AARON BURR.

testimony in possession of the public, they had no doubt
that his designs were perfectly innocent ; who had been
engaged in repeated, open, and animated altercation to
prove him innocent, and that his objects were entirely
opposite to those with which he was charged ; would
such men be proper and impartial jurors ? I can not
believe they would be thought so. I am confident I
should not think them so. I can not declare a juror to
be impartial who has advanced opinions against the pris-
oner which would be cause of challenge if advanced in
his favor.

The opinion of the court is, that to have made up and
delivered the opinion that the prisoner entertained the
treasonable designs with which he is charged, and that
he retained those designs, and was prosecuting them
when the act charged in the indictment is alleged to have
been committed is good cause of challenge.

The suspended jurymen were then called. John H.
Upshaw was asked by the court whether he conceived
that the prisoner had pursued his treasonable designs to
the time charged in the indictment. Mr. Upshaw
answered in the affirmative. And the Chief Justice
observed that he was not qualified to serve as a juryman.

J. Bowe, Miles Selden, Lewis Truehart, William Yan-
cey, Thomas Prosser, Nathaniel Selden, John W. Ellis,
Armistead T. Mason, and Dabney Minor were succes-
sively set aside, after having been further interrogated ;
because having formed an opinion as to the criminal in-
tentions of the accused, they came within the principle
of exclusion just established by the court.

Mr. Hay then moved the court to award a new venire,
to consist of a sufficient number to secure a certainty of
supplying the deficient jurymen. He thought, and
referred to the authority of Hawkins in support of his
opinion, that the "tales" might exceed the number of
the original panel. He supposed that one hundred and
fifty would not be too few. Were it not for the expense
he would move for five hundred ; that every man in the
community who had read and believed General Eaton's
deposition, must believe that the accused had treasonable
intentions; that as so much difficulty had already occur-
red in obtaining only four jurors, he was very solicitous



IMPANELING THE JURY. 471

that a sufficient number should be directed to be sum-
moned at once.

Mr. Burr said that he was sorry that such inferences
had been made ; that he thought a different conclusion
ought to be drawn from the experience already had ;
that a very great majority of the forty-eight first sum-
moned had publicly and frequently declared the most
injurious opinions respecting his intentions ; but when it
should be manifest that the officer of this court was
really disposed to seek proper jurymen, the number
could easily be completed.

Mr. Wirt hoped that when insinuations were thrown
out against the marshal of this court, a man of as respect-
able a character as any in the state, he might be called
into court to justify himself.

Mr. Wick ham objected to his panel ; that it contained
too many members of assembly and candidates for pub-
lic favor and office ; that the marshal should have
selected the jury from those who were less in the habit
of expressing their political opinions than those gentle-
men ; for that, however respectable they might be, the
frequent and public discussion of their opinions' had a
tendency to create an involuntary bias on their minds.

Mr. Botts said that it ought not to be understood that
the motives of the marshal were to be questioned ; that
he was a respectable man, who certainly meant to act
faithfully and conscientiously.

Mr. Wirt appealed to the panel itself as the best
proof of the intelligence and integrity of those who had
been selected ; that they were as respectable men as any
in the whole community; that it had been announced
from the bench itself, that some abstruse and complicated
doctrines of treason were to be investigated during the
trial ; that it was therefore natural that the marshal
should have looked out for the most enlightened men
and that the selection should have comprehended some
of those very persons whom the people had before
chosen for the management of their public concerns ;
but as only four jurors were obtained out of the forty-
eight, such a "tales" should be awarded as would
be certainly sufficient to produce the remaining eight
jurors.



472 TRIAL OF AARON BURR.

The Chief Justice stated that the difficulty of getting
jurors was now in some measure removed, as the opinion
of the court was known ; that the marshal would not
summon a man whose opinions he might have previously
understood, although he ought not to interrogate him
on the subject ; that he would have a good reason for
not placing on the panel any man who should inform
him that his opinions were strongly in conflict with the
test established by the court.

After some desultory conversation, the court awarded
a panel of forty-eight, and adjourned till Thursday.

THURSDAY, August isth, 1807.

As soon as the court met, Mr. Burr observed, that
just before coming into court, he had received a copy of
the panel last awarded ; that is was defective in not hav-
ing the places of residence annexed to the names of the
jurors ; that he should, perhaps, require till the day after
to-morrow to examine it, which was a less time than the
law allowed him for that purpose.

Some conversation ensued respecting the subp&na
duces tecum, when Mr. Hay stated that he had found
General Eaton's letter among certain papers transmitted
by Mr. Rodney, and had filed it with the clerk; that he
had not found among them General Wilkinson's letter
of the 2ist October, but would seek for it.

Three of the jury summoned on the second venire
were discharged by the court : viz., General Pegrom, be-
cause he was then necessarily engaged in military busi-
ness, in giving the necessary orders to the officers of
his brigade, to get in readiness its due proportion of this
state's quota of troops required by the president's pro-
clamation, pursuant to the act of congress. Mr. Lewis,
because he owned no freehold in the State of Virginia ;
and Mr. Moncure, on accouut of his indisposition.

It was understood that the marshal should summon
three substitutes ; and that the prisoner should accept
them. So that the venire was still to consist of forty-
eight.

The court then adjourned till Saturday.



IMPANELING THE JURY. 473



SATURDAY, August isth, 1807.

Present, Chief Justice Marshall ; Judge Griffin, ab-
sent.

The jurymen summoned by the marshal were severally
called, and answered to their names in the following or-
der, except seven absentees.

Jacob Michaux, of Powhattan ; William Randolph, of
Surry; John Edmunds, of Sussex ; George Minge, of
Charles City ; William L. Morton, of Charlotte; Chris-
topher Anthony, of Goochland ; John Darricot, of Hano-
ver ; Washington Truehart, of Louisa ; Martin Smith,
of Prince Edward ; Benjamin Tate, of City of Richmond ;
Christopher Tomkins, of do. ; Benjamin Branch of Din-
widdie ; Thomas Branch, of Chesterfield ; James Shep-
pard, of City of Richmond ; Gabriel Ralston, of do. ;
Micajah Davis, of Bedford ; Reuben Blakey, of Henrico ;
Miles Selden, of Sussex ; Walter Blunt, of do. ; Richard
N. Thweatt, of Petersburg ; John Fitzgerald, of Notto-
way ; Robert M'Kim, of City of Richmond ; Benjamin
Graves, of Chesterfield ; William M'Kim, of City of
Richmond ; Robert Hyde of do. ; Thomas Miller, of
Powhattan ; Thomas Branch, of Chesterfield ; Robert
Goode, of do. ; Henry Randolph, of do. ; Miles Botts, of
do. ; Henry Bridgewater of do. ; Edward Hallam, of
City of Richmond ; Anderson Barret, of do. ; Henry E.
Coleman, of Halifax ; Edmund Bailey, of City of Rich-
mond ; Holder Hudgins, of Matthews; William H.
Hudgins, of do. ; John Price, of Henrico ; Isham God-
win of do. ; William S. Smith, of do. : George Blakey, of
do. ; Gray Carrol, of Isle of Wight ; Isaac Medley, of
Halifax; Richard Curd, of Henrico; Edward Munford,
of Powhattan ; Samuel Allen, of Buckingham ; John M.
Sheppard, of Hanover; John Curd, of Goochland. Of
whom there were seven absent.

On motion of Mr. Randolph, Mr. Benjamin Tate was
excused from serving on the jury, on account of his bad
state of health. Henry Randolph wished to be dis-
charged, because he was engaged in collecting the public
revenue. The court would not, however, admit the
validity of the excuse.



474 TRIAL OF AARON BURR.

Mr. Burr then addressed the court, and observed that
the panel was.now reduced to forty ; and as it would be
exceedingly disagreeable for him to exercise the privilege
of making peremptory challenges, to which he was enti-
tled, he would lay a proposition before the opposite
counsel which would prevent this necessity, and would
save one or two hours that might be otherwise unpleas-
antly spent. He would select eight out of the whole
venire, and they might be immediately sworn, and im-
paneled on the jury.

The Chief Justice said that if no objection were made
it might be done, and that they might be placed at the
head of the panel.

Mr. Hay observed that there could be no utility in
objecting to it, as the prisoner could challenge peremp-
torily, and that he had no objection to this arrangement,
as it would be easy for him to examine the qualifications
of the eight who were selected, when they were once
known.

William S. Smith then requested to be excused, on
account of his indisposition.

Mr. Burr observed that Mr. Smith was one of those
whom he had selected ; but he would be sorry to impose
such a burden upon any invalid. Mr. Smith was dis-
charged.

When Christopher Anthony was called, he observed to
the court that he had uttered some expressions since he
came to town which he had been told would certainly
disqualify him from serving, according to the rules said
to have been laid down by the court. On being inter-
rogated as to what words he had spoken,

Mr. Burr said perhaps the words were used through
levity. Do you think they would be sufficient to warp
your judgment?

Answer. No.

Mr. Burr. Then, sir, you are not disqualified.

Mr. Mac Rae. State the tenor of those expressions.

Anthony. When I first arrived here I met with an in-
timate friend, to whom I observed that I had come to
town with a hope of being placed on this jury, and if I
were, I would hang Mr. Burr at once without further in-
quiry.



IMPANELING THE JURY. 475

Mr. Mac Rae. Did you say so, knowing that such ex-
pressions would disqualify you ?

Answer. I did not ; for I never expected to be put
on this panel.

Question. Were you serious ?

Answer. Far from it. I spoke in the utmost spirit
of levity.

Question. Have you been in the habit of reading the
newspapers?

Answer. I have.

Mr. Mac Rae proceeded to make further inquiry of
him. He asked him whether he had read the depositions
of Generals Wilkinson and Eaton. He answered in the
affirmative. He then asked him whether those deposi-
tions had made no impression upon his mind? Hereupon
both Mr. Burr and Mr. Martin objected to this inquiry
as improper.

Mr. Mac Rae contended that this examination was in
vindication of the rights of the United States, and per-
fectly proper and correct, and was no more than had been
done repeatedly by the prisoner.

Mr. Martin. You have no right to disqualify any jury-
man for us.

Chief Justice. -Certainly the counsel for the United
States may challenge for cause.

Mr. Mac Rae. We are entitled to the same rights
which the opposite counsel have exercised as to the for-
mer venire. When the jurymen were successively called
before the court, did not the opposite counsel in every
case challenge for cause ? Did not the prisoner make
some general observations that were intended for the
ears of the jury, in which he spoke of his right of chal-
lenge, and requested every juryman who was conscious
of prejudice to object himself? Did they not, in several
cases, without exercising the right of challenge, previ-
ously inquire of the jurymen whether they had no
declarations to make? Did not the counsel for the pros-
ecution suggest some doubts about the propriety of this
course ? and did not the prisoner reply that no juryman
ought to lock up in his own bosom the prejudices which
he had conceived, and that he ought to declare himself?
Did not Mr. Botts frequently interrogate the jurymen



476 TRIAL OF AARON BURR,

whether they had nothing to state? Mr. J. Baker's case
will be particularly recollected; for that gentleman posi-
tively replied that he had no observations to make, until
he had been challenged ; and not until this step had been
taken, did any declarations fall from Mr. Baker. We
wish to pursue the same course now that was adopted
on that occasion. We wish to challenge no juryman for
cause until he have previously made declarations of
his state of mind. The same justice is due to the
United States that was awarded to the prisoner; and
they have the same right to know whether a juryman be
as perfectly impartial in relation to the prosecution, as
to the prisoner. As to the jurors themselves, they would
certainly be willing to give all the information in their
power.

Mr. Hay was willing to take the persons selected ; for
he entertained no doubt of the integrity of the gentle-
men who were summoned. He was willing to take them
provided they should be asked by the bench whether
they were conscious of any cause which should disqualify
them from serving. If they themselves were satisfied,
he should be also satisfied. No man on this pa-nel who
had definitely made up his mind, would conscientiously
think to lay his hand on the book and solemnly avow
himself an impartial and qualified juryman.

The Chief Justice understood, then, that these selected
eight, were to pass without challenge, unless they chal-
lenged themselves. If the court were required to say, as
seemed to be the wish of the prosecution, that any im-
pressions, however slight, were sufficient cause for chal-
lenge, he would ask where they could obtain a jury?
The United States had precisely the same rights as the
prisoner had, and were entitled to make the same chal-
lenges for good cause. He then addressed those eight
jurymen who were placed at the head of the panel, thus :

" Gentlemen, if you have made up and expressed any
opinion, either for or against the accused, you ought to
express it."

Mr. Burr. The law presumes every man to be inno-
cent, until he has been proved to be guilty. According
to the rules of law, it is therefore the duty of every citi-
zen who serves on this jury, to hold himself completely



IMPANELING THE JURY. 477

unbiased ; it is no disqualification, then, for a man to
corne forward and declare that he believes me to be in-
nocent.

Chief Justice. The law certainly presumes every man
to be innocent, till the contrary be proved ; but if a jury-
man give an opinion in favor of the prisoner, he must be
rejected.

When Christopher Anthony was called to the book, he
stated that he was in court the other day, when the first
venire was investigated ; that it would be extremely un-
pleasant to serve on the jury ; and that his general opin-
ions had been precisely the same that had disqualified
(as he understood) several other gentlemen. Mr. An-
thony's objections were overruled.

John M. Sheppard. I too feel myself disqualified for
passing impartially between the United States and
Aaron Burr. From the documents that I have seen,
particularly the depositions of Generals Wilkinson and
Eaton, I have believed, and do still believe, that his in-
tentions were hostile to the peace and safety of the
United States; in short, that he had intended to sub-
vert the government of the United States. It would be
inflicting a wound on my own bosom, to be compelled
to serve under my present impressions. Mr. Sheppard
observed, that considerations of a private nature had
also borne upon his mind : for he had a child at home,
extremely sick.

Mr. Burr. Notwithstanding Mr. Sheppard's impres-
sions, I could rely upon his integrity and impartiality.
As to his private considerations, I do not wish wantonly
to wound his feelings. I must request him, therefore, to
sit down "for a moment, until we shall ascertain whether
we can make a jury without him.

Mr. Hay. Has the court understood the extent of
Mr. Sheppard's declarations?

Chief Justice. If the prisoner's counsel waive the
right of challenge, there is an end of it.

James Sheppard was then called ; who made no further
declarations.

Reuben Blakey. I have made up no opinions either
way, positively, on this subject.

Doctor John Fitzgerald. It is incumbent on me to



478 TRIAL OF AARON BURR.

state to the court, that I have formed and delivered an
opinion unfavorable to Mr. Burr. My opinion has been
founded upon the depositions of Generals Eaton and
Wilkinson, and other newspaper publications ; and it is,
that Mr. Burr's intentions were hostile and treasonable
against the United States. On which account, I am
very unwilling to serve, lest I should possess that bias
upon my mind which is unbecoming a juryman. Mr.
Fitzgerald was requested to sit down for a few moments.

Miles Bott. From the affidavits of Generals Wilkinson
and Eaton, my opinion has been completely made up for
several months past.

Mr. Martin. I suppose you have only taken up a pre-
judice, on the supposition that the facts stated were
true.

Mr. Bott. I have gone as far as to declare, that Mr.
Burr ought to be hanged.

Mr. Burr. Do you think that such declarations would
now influence your judgment? Would not the evi-
dence alter your opinion?

Answer. Human nature is very frail ; I know that the
evidence ought, but it might or might not influence me.
I have expressed myself in this manner, perhaps, within
a fortnight ; and I do not consider myself a proper jury-
man.

Mr. Burr. It will be seen, either that I am under the
necessity of taking men in some degree 'prejudiced
against me, or of having another venire. I am unwilling
to submit to the further delay of other " tales," and I
must therefore encounter the consequences. I will take
Mr. Bott, under the belief that he will do me justice.

Four jurymen then having been selected, three were
sworn. Mr. C. Anthony affirmed.

When Henry E. Coleman was called, he stated that
he had conceived and expressed an opinion, that the de-
signs of Mr. Burr were always enveloped in mystery, and
inimical to the United States ; and when informed by
the public prints, that he was descending the river with
an armed force, he had felt as every friend of his country
ought to feel.

Mr. Burr. If, sir, you have completely prejudged my
case



IMPANELING THE JURY. 479

Mr. Coleman. I have not. I have not seen the evi-
dence.

Mr. Burr. That is enough, sir. You are elected.

Mr. Hay then suggested to the court the propriety of
not swearing all the jury this day; as it would subject
them to the inconvenience of an unnecessary confine-
ment in their own room to-morrow (Sunday). Would
it not be better for Mr. Marshall (the clerk) to swear
three only out of the remaining four? The court might
then impanel the whole on Monday, and proceed imme-
diately to business.

Mr. Burr had no objections to this measure ; but
hoped that the court would enjoin them not to hold any
conversations on the subject of the trial.

John Curd, upon being called, stated that he had no
prejudices for or against the prisoner ; but that he was
bound in candor to inform the court that he was afflicted
by a disorder (a palpitation of the heart) which was ir-
regular in its attacks, but was sometimes very sudden
and violent, and rendered him entirely incapable of busi-
ness ; and if he were sworn on the jury, it might inter-
rupt and delay the progress of the cause. He was ex-
cused.

Isham Godwin had formed and declared a uniform
opinion of Mr. Burr's guilt. If he were impaneled, he
should be under a strong impression that Mr. Burr was
guilty of treason. Suspended.

Samuel Allen had for several months made up an
opinion unfavorable to the prisoner. Suspended.

Benjamin Graves had not formed an opinion ; and gave
a long history of his domestic and family engagements,
to excuse himself from serving. He was asked whether he
could not make some arrangements of this business, be-
tween this time and Monday, calculated to remove all
the inconvenience of his serving ? Mr. Graves could not
positively say.

Mr. Burr then observed that the two jurors who had
been selected might be sworn ; the other two might
be selected on Monday. And Messrs. Coleman and
Graves were accordingly sworn.

Mr. Burr hoped that the marshal would direct all the
necessary preparations to be made for the accommoda-



480 TRIAL OF AARON BURR.

tion of the jury, who would be confined to their own
chamber after Monday.

Colonel Thomas Branch was then excused from serv-
ing, because he was engaged in military business.

The Chief Justice requested the jury, and the re-
maining members of the venire, to attend on Monday,
at twelve o'clock ; and enjoined them to hold, in the
meantime, no communication on this subject with any
person.

Mr. Hay stated that he was satisfied from some ex-
pressions which he had heard from Mr. Munford of
Powhattan, at the moment of his summons, that the
prisoner would himself object to him.



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