Aaron Burr.

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

. (page 46 of 64)
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Mr. Burr was satisfied with the attorney's word ; and
Mr. Munford was accordingly discharged.

Mr. Burr was sorry to be importunate ; but he was
under the necessity of mentioning once more the letter
of the 2ist October. He wished to know whether the
attorney had yet found it amongst his papers, or
whether he could point to any other means of obtain-
ing it.

Mr. Hay had examined two bundles of papers trans-
mitted to him by Mr. Rodney, but he had not found it.
There were other papers which he had yet to examine.
He had, however, a copy of the original letter.

Mr. Burr. Where is this copy from ? From Wash-
ington, or from General Wilkinson ?

Mr. Hay. It is from General Wilkinson. He has,
however, written it from the original.

Mr. Burr. I shall not accept of his copy ; but I will
state this proposition to the attorney. If he do not find
this letter by Monday, will he consent that I obtain a
subp&na duces tecum?

Mr. Hay. I have no objection.

Chief Justice. I snppose an order may be made to
issue a subpana duces tecum addressed to the attorney-
general of the United States, in case the letter be not
found.

Mr. Hay. I have no objection.

A desultory conversation ensued between Messrs. Hay
and Botts, on the arraignment of H. Blannerhassett. Mr.
Hay was averse to interrupting the jury after it had once



IMPANELING THE JURY. 481

been impaneled for the trial of Mr. Burr; he was there-
fore anxious to have Blannerhassett immediately ar-
raigned, and if possible, to have some day fixed for his
trial.

Mr. Botts did not think it possible for the court to fix
on a particular time for his trial, or for the attorney to
furnish any means for calculating it. Mr. Blannerhassett
was not prepared for his trial ; but he was then prepar-
ing a brief for the information of his counsel, which
might enable them to give a definitive answer on this sub-
ject.

Mr. Hay was willing to grant them any accommodation
they might require. At all events, the court would only
have occasion to meet one hour sooner on some day,
to arrange it.

Mr. Botts promised that he would notify the attorney
some day in the next week, for this purpose.

MONDAY, August i/th, 1807.

Charles Lee, Esq., appeared as counsel for the prisoner.

Doctor Bennett, of Mason county, a witness on behalf
of the United States, was called and recognized.

Mr. Hay stated some little difficulty which had oc-
curred between Mr. Botts and himself. He had fur-
nished the prisoner with a list of the names of such wit-
nesses, with their places of residence, as had come to his
knowledge. He had likewise proposed, and Mr. Botts
had consented that all such witnesses should be exam-
ined, whose names should be furnished to the prisoner
before the commencement of the trial. He had furnished
the names of three on Saturday, viz., Messrs. Neil,
Goodwin, and Jones ; which Mr. Botts did not think
ought to be accepted, because they were not furnished
previous to the trial. For his own part, he did not think
that the trial could be said to have commenced before
the jury were sworn and impaneled ; the prisoner might
at any time before the jury were sworn, move for, and
obtain a continuance of the cause, if he could satisfy the
court that he was entitled to it.

Mr. Botts said that he had no doubt Mr. Hay
thought that he had stated facts to the court relative to



482 TRIAL OF AARON BURR.

their supposed agreement ; that, however, he was mis-
taken, and he mentioned some circumstances to convince
him that he was so ; but, as there had been a mistake,
he would, as a matter of voluntary favor and grace,
agree to the introduction of those three witnesses.

Mr. Hay solemnly expressed his belief in the accu-
racy of his statement ; but as he was at liberty to intro-
duce these three witnesses, he would let the subject rest
where it was.

The names of the selected jurors and of the venire
were then called over. After which, John M. Sheppard
and Richard Curd were selected to complete the panel,
and sworn.

The following is, therefore, a complete list of the petit
jury :

Edward Carrington, Reuben Blakey,

David Lambert, Benjamin Graves,

Richard E. Parker, Miles Bott,

Hugh Mercer, Henry E. Coleman,

Christopher Anthony, John M. Sheppard,

James Sheppard, Richard Curd.

Proclamation then having been made in due form,
the prisoner standing up, the clerk addressed the jury in
the usual form, and read the indictment in the words fol-
lowing :

VIRGINIA DISTRICT:

In the circuit court of the United States of America, in
and for the fifth circuit, and Virginia district.

The Grand inquest of the United States of America, for the Virginia
district, upon their oath, do present, that Aaron Burr, late of the city of
New York, and state of New York, attorney-at-law, being an inhabitant of
and residing within the United States, and under the protection of the laws
of the United States, and owing allegiance and fidelity to the same United
States, not having the fear of God before his eyes, nor weighing the duty of
his said allegiance, but being moved and seduced by the instigation of the
devil, wickedly devising and intending the peace and tranquillity of the
said Uniied States to disturb; and to stir, move and excite insurrection, rebel-
lion and war against the said United States ; on the tenth day of December,
in the year of Christ one thousand eight hundred and six, at a certain place
called and known bv the name of Blannerhassett's island, in the county of



INDICTMENT. 483



Wood, and district of Virginia aforesaid, and within the jurisdiction of this
court, with force and arms, unlawfully, falsely.maliciously and traitorously, did
compass, imagine and intend to raise and levy war, insurrection and re-
bellion against the said United States ; and in order to fulfill and bring to
effect the said traitorous compassings, imaginations and intentions of him,
the said Aaron Burr, he the said Aaron Burr afterwards, to wit, on the said
tenth day of December, in the year one thousand eight hundred and six
aforesaid, at the said island called Blannerhassett's island as aforesaid, in
the county of Wood aforesaid, in the district of Virginia aforesaid, and
within the jurisdiction of this court, with a great multitude of persons,
whose names at present are unknown to the grand inquest aforesaid, to a
great number, to wit, to the number of thirty persons and upwards, armed
and arrayed in a warlike manner, that is to say, with guns, swords and dirks,
and other warlike weapons as well offensive as defensive, being then and
there unlawfully, maliciously and traitorously assembled and gathered to-
gether, did falsely and traitorously assemble and join themselves together
against the said United States ; and then and there with force and arms
did falsely and traitorously and in a warlike and hostile manner, array and
dispose themselves against the said United States ; and then and there that
is to say, on the day and in the year aforesaid, at the island aforesaid, com-
monly called Blannerhassett's island, in the county aforesaid of Wood,
within the Virginia district and the jurisdiction of this court, in pursuance
of such their traitorous intentions and purposes aforesaid, he the said Aaron
Burr with the said persons so as aforesaid traitorously assembled, and armed
and arrayed in manner aforesaid, most wickedly, maliciously and traitorously
did ordain, prepare and levy war against the said United States, contrary
to the duty of their said allegiance and fidelity, against the constitution,
peace and dignity of the said United States, and against the form of the
act of the congress of the said United States in such case made and pro-
vided.

And the grand inquest of the United States of America, for the Virginia
district, upon their oaths aforesaid, do further present, that the said Aaron
Burr late of the city of New York, and state of New York, attorney-at-law,
being an inhabitant of, and residing within the United States, and under
the protection of the laws of the United Sates, and owing allegiance
and fidelity to the same United States, not having the fear of God
before his eyes, nor weighing the duty of his said allegiance, but being
moved and seduced by the instigation of the devil, wickedly devising and
intending the peace and tranquillity of the said United States to disturb ;
and to stir, move and excite insurrection, rebellion and war against the
said United States ; on the eleventh day ofj)ecember, in the year of our
Lord one thousand eight hundred and six, at a certain place called and
known by the name of Blannerhassett's. island, in the county of Wood and
district of Virginia aforesaid, and within the jurisdiction of this court, with
force and arms unlawfully, falsely, maliciously and traitorously did com-
pass, imagine and intend to raise and levy war, insurrection and rebellion
against the said United States; and in order to fulfill and bring to effect the
said traitorous compassings, imaginations and intentions of him the said
Aaron Burr, he the said Aaron Burr afterwards, to wit, on the said last
mentioned day of December in the year one thousand eight hundred and
six aforesaid, at a certain place commonly called and known by the name of
Blannerhassett's island in the said county of Wood in the district of Vir-
ginia aforesaid, and within the jurisdiction of this cburt, with one other
great multitude of persons whose names at present are unknown to the
grand inquest aforesaid, to a great number, to wit, to the number of thirty



484 TRIAL OF AARC.N BURR.

persons and upwards, armed and arrayed in a warlike manner, that is to
say, with guns, swords and dirks, and other warlike weapons, as well offen-
sive as defensive, being then and there unlawfully, maliciously and traito-
rously assembled and gathered together, did falsely and traitorously assem-
ble and join themselves together against the said United States ; and then
and there with force and arms did falsely and traitorously and in a war-
like and hostile manner array and dispose themselves against the said
United States ; and then and there, that is to say, on the day and in the
year last mentioned, at the island aforesaid, in the county of Wood afore-
said, in the Virginia district, and within the jurisdiction of this court, in
pursuance of such their traitorous intentions and purposes aforesaid, he the
said Aaron Burr, with the said persons so as aforesaid traitorously assem-
bled, and armed and arranged in manner aforesaid, most wickedly, mali-
ciously and traitorously did ordain, prepare and levy war against the said
United States ; and further to fulfill and carry into effect the said traitorous
compassings, imaginations and intentions of him the said Aaron Burr,
against the said United States, and to carry on the war thus levied as
aforesaid against the said United States, the said Aaron Burr, with the mul-
titude last mentioned, at the island aforesaid, in the said county of Wood,
within the Virginia district aforesaid, and within the jurisdiction of this
court, did array themselves in a warlike manner, with guns and other
weapons, offensive and defensive, and did proceed from the said island
down the river Ohio in the county aforesaid, within the Virginia district
and within the jurisdiction of this court, on the said eleventh day of De-
cember, in the year one thousand eight hundred and six aforesaid, with the
wicked and traitorous intention to descend the said river and the river
Mississippi, and by force and arms traitorously to take possession of a city
commonly called New Orleans, in the territory of Orleans, belonging to the
United States, contrary to the duty of their said allegiance and fidelity,
against the constitution, peace and dignity of the said United States, and
against the form of the act of the congress of the United States in such
case made and provided.

HAY, Attorney of the United States,

for the Virginia district.
Indorsed "A TRUE BILL JOHN RANDOLPH.'
A Copy. Teste,

WILLIAM MARSHALL, Clerk.

After the indictment was read, Mr. Hay requested that
the jury should be furnished with implements necessary
to enable them to take notes on the evidence, and also
on the arguments if they should think proper ; that as
the cause was important, and would require all their at-
tention, it would be proper to afford them this assistance.
This was accordingly done.

Mr. Hay then opened the case with the following
speech :

May it please the court, and you gentlemen of the
jury: In the preliminary stages of the prosecution in
which we are now engaged, many observations were
made extremely derogatory to the character of the gov-



OPENING ARGUMENT OF MR. HAY. 485

ernment .under which we live, and injurious to the feel-
ings of the counsel concerned in the prosecution.
Among other things, gentlemen of the jury, it was said,
that \ve had indulged an intemperate zeal against the
prisoner, which transgressed all the limits of moderation
and humanity; that we were anxious to convict him
even if innocent, and to deprive him of those means of
defense which justice and law direct. I do not know,
gentlemen of the jury, whether you heard this charge, or
if you did, whether it made any impression on your
minds ; but if it did, it is my duty to efface that impres-
sion. But how, gentlemen ? By professions of modera-
tion, candor, liberality and humanity? professions
easily made and as easily forgotten ! No. I will prove,
gentlemen, that this charge is unjust, by the course which
I shall pursue in the very management of this prosecu-
tion. We come now to a serious and interesting crisis
in this inquiry; on the result of which the life of a man,
and of a fellow-citizen, who once stood high in the esti-
mation of his country, must certainly depend. It is al-
leged that his life is forfeited to the offended justice and
violated laws of his country. It is my duty to support
that allegation ; but, gentlemen of the jury, if I know my-
self, if I can venture to express what my own feelings
dictate, I shall support that allegation only by facts
which I believe to be true, and by arguments which
have already produced my own conviction.

The prisoner at the bar is charged with treason, in
levying war against the United States. To this charge
he has pleaded not guilty. It is your high and solemn
duty to decide whether the charge be true or not ; and
you have sworn to decide it according to the evidence
which shall be laid before you. If you attend to the obli-
gation and the words of your oath, any admonitions from
me, with respect to the course which you ought
to pursue, will be entirely superfluous. If you decide
according to the evidence, you will divest your minds of
every bias, of all political prepossessions produced by ex-
traneous statements and rumors which you may have
seen and heard. You will enter upon the case with im-
partial attention, and a firm determination to do justice
^between the United States and the prisoner. But, gentle-



486 TRIAL OF AARON BURR.

men, if, after that patient investigation of the ^evidence
which the importance of the case requires, and which
I am sure you will bestow, you be not satisfied of the
guilt of the accused, it is your duty to say that he is not
guilty. This, gentlemen of the jury, is the language of
the law, of humanity, and of common sense. If you.
doubt on the subject, and can not bring your minds to a
positive determination that he is guilty, you must de-
clare him to be innocent. But, gentleman of the jury,
there is one distinction made sometimes by jurymen, to
which I will for a single moment call your attention,
which seems to me to be a distinction without a differ-
ence, and founded in wickedness and folly. It is this :
that they were satisfied as individuals that the prisoner
wasiguilty ; but yet, that they were not satisfied as jury-
men. This appears to me-to be a miserable fallacy. A
juryman may entertain a belief, founded on what he has
heard out of doors, which would not be warranted by
the legal evidence before him in the court, on which
alone he ought to decide ; but if the belief once exist in
his mind, from the evidence, that the prisoner has com-
mitted the crime alleged, he is then guilty of treachery
to his God, to his country, and to himself, if he do not
pronounce a verdict dictated by that belief.

This indictment contains two counts : one for levying
war against the United States at Blannerhassett's island,
in the county of Wood. The other contains precisely
the same charge, but goes on with this addition, that in
order to levy it more effectually, he descended the Ohio
and Mississippi with an armed force for the purpose
of taking New Orleans. If either charge be supported
by evidence, it will be your duty to find a verdict against
him.

In Great Britain, there are no less than ten different
species of treason ; at least, that was the number when
Blackstone wrote, and it is possible that the number may
have been increased since. But in this country, where
the principle is established in the constitution, there are
only two descriptions of treason ; and the number being
fixed in the constitution itself, can never be increased by
the legislature, however important and necessary it
should be, in their opinion, that the number should be



OPENING ARGUMENT OF MR. HAY. 487

augmented. By the 3d section of the 3d article of the
constitution of the United States, " Treason against the
United States shall consist only in levying war against
them, or in adhering to their enemies; giving them aid
and comfort." With respect to the latter description,
there is no occasion to say anything, as the offense
charged in the indictment is " levying war against the
United States;" but it adds that "no person shall be
convicted of treason, unless on the testimony of two wit-
nesses to the same overt act, or on confession in open
court." The offense being thus constitutionally defined,
the only question which presents itself to your view, at
this stage of the inquiry, is, What shall constitute an overt
act of levying war against the United States? Treason con-
sists in levying war against the United States ; the ques-
tion, then, is, What is in the law an overt act of" levying
war " against the United States? It is obvious that the
interval between the first movements towards a conspir-
acy, and actual hostilities, or a battle fought, is immense.
There may be a conspiracy to " levy war " but this is not
treason. Individuals may meet together and traitorously
determine to make dispositions to bring forces into the
field, and levy war against their country ; this is a con-
spiracy, but not treason. The conspirators may go a
step further ; they" may not only project a plan for
" levying war," but they may enlist troops for the pur-
pose of prosecuting their traitorous design ; but this is
not an overt act. It hath been decided by the supreme
court of the United States, that the persons concerned
in this conspiracy may yet take one step further, and be
on the safe side of the line which separates conspiracy
from treason. It has been adjudged that the individuals
engaged in the treason may 'proceed to a place of rendez-
vous. But, gentlemen, common sense and principles
founded on considerations of national safety certainly
require, that the crime of treason should be completed
before the actual commission of hostilities against the
government. If force must be employed before treason
shall be said to be perpetrated, what is the consequence?
Why, that the traitor will so take his steps, as not to
strike a blow, till he be in such an attitude as to be able
to bid defiance to the government, and laugh at your de-



4 88 TRIAL OF AARON BURR.

finitions of treason. If he be a man of common under-
standing, he will not hazard a blow till his arrangements
be so complete that the blow shall be fatal. It will, then,
be a matter of very little consequence to him, what may
be the definition of the crime which he has thus com-
mitted. What, then, is the point at which a treasonable
conspiracy shall be said to be matured into treason ?
What shall be said to be an overt act of treason in this
country? The answer is this, gentlemen of the jury,
that an assemblage of men convened for the purpose of
effecting by force a treasonable design, which force is in-
tended to be employed before their dispersion, is treason-
able, and the persons engaged in it are traitors. The
answer which I have thus given is not literally that which
is furnished by the decision of the supreme court of the
United States; but it is substantially the same, and is
given in conformity to what I understand to be the
spirit of that decision. This is precisely the question
which was fully discussed before the supreme court of
the United States ; and as the opinion of that court on
this question was pronounced after great deliberation,
no other judicial tribunal within the United States
ought to support a doctrine contrary to the principles of
that decision ; and that opinion was, that a bare assem-
blage of men met to carry into forcible execution be-
fore their separation, a treasonable design, was an overt
act of levying war against the United States. I refer to
the opinion delivered by the Chief Justice, in the case of
Bollman and Swartwout, on the 2ist of February, 1807;
ii: which the following words occur : " It is not the in-
tention of the court to say that no individual can be
guilty of this crime who has not appeared in arms
against his country. On the contrary, if war be actually
levied, that is, ' if a body of men be actually assembled
for the purpose of effecting by force a treasonable pur-
pose, all those who perform any part, however minute,
or however remote from the scene of action, and who are
actually leagued in the general conspiracy, are to be con-
sidered as traitors; but there must be an actual assem-
bling of men to constitute a levying of war.' " If, there-
fore, war be levied in this manner, if a number of men
collect together for the purpose of effecting a treasonable



OPENING ARGUMENT OF MR. HAY. 489

purpose, all are traitors. The construction which I have
thus given, comes within the words and meaning of the
decision of the supreme court, pronounced by yourself.
The same idea is expressed in perhaps ten or fifteen
other parts of this decision : " To complete the crime of
levying war against the United States, there must be an
actual assemblage of men for the purpose of executing
a treasonable design." There is the utmost precision
of language in every part of this judicial sentence.
Again :

" A design to overturn the government of the United
States at New Orleans by force, would have been un-
questionably a design, which, if carried into execution,
would have been treason ; and the assemblage of a body
of men for the purpose of carrying it into execution,
would amount to levying war against the United States;
but no conspiracy for this object, no enlisting of men to
effect it, would be an actual levying of war." If, then,
the accused and his associates had met together for the
purpose of effecting by force a dissolution of the govern-
ment of the United States, at New Orleans, though no
force had been used, or battle fought to accomplish it,
they would have been guilty of treason. Again, gentle-
men, the same idea occurs in these other passages : " It
can not be necessary that the whole army should be as-
sembled, and that the various parts which are to com-
pose it should be combined, but it is necessary that
there should be an actual assemblage." " The meeting of
particular todies of men, and their marching from places
of partial to places of general rendezvous, would be
such an assemblage." " It would certainly be an overt
act of levying war." I think, therefore, gentlemen, that
I may with confidence say, that I am warranted in the
construction which I have given, by an express and
solemn adjudication of the supreme judicial tribunal of
this country.

Perhaps, gentlemen of the jury, in opening this cause,
I may take more time than you think necessary, or
than I myself, strictly speaking, may think necessary ;
but justice to the accused requires that I should ex-
plicitly communicate the ground and principles on which
the prosecution is meant to be maintained, that his coun-



490 TRIAL OF AARON B URR.

sel may prepare for his defense. I must solicit your at-
tention while I state for your consideration those
reasons which have induced me, in giving this exposition
of the words "levying war," to omit two circumstances,



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 46 of 64)