Aaron Burr.

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

. (page 48 of 64)
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war," and when, and in what circumstances it is levied
against the United States, can not be denied. The able
counsel in this case, who has said the most on this
subject, and traveled the furthest into the gloomy, dark,
and tyrannical periods of British history and jurispru-
dence, for melancholy and disgusting proofs of atrocious
abuses and even crimes, committed under color of law,
has unavoidably himself furnished also proof of the nec-
essity we are under of some constructive or interpreta-
tive expositions. He at first confined these expositions
to three cases. Now, if there be a necessity of one, it
shows, that without supplementary interpretation, the
law would be a mere dead letter ; aware of the danger-
ous lengths to which the abuses of construction have
been carried, courts and juries should be cautious in



OPENING ARGUMENT OF MR. HAY. 501

their decisions ; but not so much alarmed about abuses
as to refrain from the proper and necessary use of inter-
pretation." Is is true, gentlemen, that there was a time
when the courts admitted anything to be treason which
the king of that country wished to be treason ; acts in
themselves innocent, and which had no relation to trea-
son, were construed to be treason ; as coining mojney,
where the party accused had no idea of the commission
of treason, but merely to perform the act of coining.
Surely, gentlemen will not say that constructive treason''
has been introduced into this country because the
judges are obliged to interpret this. part of the constitu-
tion. If, gentlemen of the jury, the law thus established
by the supreme court shall be said' to be a constructive
treason, the inference is, that the judges ought to give
no opinion on the meaning of the constitution on this
subject ; which would be absurd ; for it is their solemn
duty to construe the constitution and laws of the gen-
eral government. Another inconvenience that would re-
sult from the inability of the judges to expound the
constitution is, that the law would be perfectly uncer-
tain, on the most interesting of all legal subjects ;
which would be a most grievous mischief, as juries
would be under the necessity of taking upon themselves
the correct exposition of the law, or it must be con-
ceded that the opinion of the supreme court is erron-
eous. The latter, I presume, is a position which the
counsel for the prisoner will hardly undertake to sup-
port.

If, however, they, do undertake to show that the opin-
ion of the court is incorrect, and that the crime of trea-
son can not be committed in this case ; that an assem-
blage of men with a traitorous design is not sufficient,
but that actual force must be employed, and hostilities
commenced before the treason is complete, the consti-
tution is a dead letter: No man can be pronounced to
be a traitor, till, by striking a blow, he be, or conceives
himself to be, beyond the reach of the law, or have over-
thrown your government.

Perhaps it will be said that the decision of the supreme
court is not correctly understood or stated by me. I
may be incorrect in my exposition of it, but the Ian-



502 TRIAL OF AARON BURR.

guage of the court is as definite and perspicuous as any
that can be conceived. If we do not understand it cor-
rectly it is in vain to* look into reported cases for evi-
dence of the law, or to inquire what the law is. In
every part of its judicial opinion the ideas which it has
expressed are perfectly consistent ; and you will not find
from beginning to end a sentence, or even a word which
implies that anything more is necessary for the comple-
tion of treason than an assembly of men convened for
the purpose of executing a traitorous design.

I should, therefore, take it for granted that the law is
as I have stated it to .be, and that the overt act of trea-
son was complete, if there were an assemblage of men on
Blannerhassett's island, in the county of Wood, whether
they were armed or not, and whether they used force or
not. It is incumbent on those who prosecute to show,
1st, That there was a treasonable design ; and 2d, That
there was an assemblage of men for the purpose of ef-
fectuating that design. It will be proved to you, gentle-
men of the jury, that the design of the prisoner was not
only to wage war against the Spanish provinces, but to
take possession of the City of New Orleans, as prepara-
tory to that design ; to detach the people of that coun-
try from this, and establish an independent government
there, and to dismember the union, separate the western
from the eastern states, making the Alleghany Mountains
the boundary line. You will perceive from the evi-
dence, that he intended to take possession of New Or-
leans, to excite the people there to insurrection, and to
take advantage of the hostile sentiments which prevailed
to the west of the Alleghanies against the Spaniards. If
either of these be proved ; if it be established that his
design was to separate the states ; or after seizing New
Orleans, to invade the Spanish provinces, he is guilty of
treason. If, in fact, it be proved, that he intended to
take New Orleans at all, he is completely guilty of trea-
son ; whether he designed to take possession of the
whole, or of a part, he is equally guilty of treason. It
would be absurd to suppo e that a man who had resolved
in his mind a scheme so gigantic as this, would commu-
nicate it to many persons. But he did disclose it to a
few ; and, fortunately for our country, he was mistaken



OPENING ARGUMENT OF MR. HA Y. 503

in his opinion of those persons in whom he confided ;
and the evidences of his design have been disclosed to
our government. I am warranted in saying, gentlemen of
the jury, that evidence the most positive and direct, and
circumstances numerous and conclusive, will prove to
your satisfaction, that the intentions of the accused were
precisely such as I have mentioned.

For the purpose of accomplishing these great designs;
of establishing an empire in the west, of which New Or-
leans was to be the capital, and the accused was to be
chief, he made two long visits to the western country. He
went to Ohio, Tennessee, and Kentucky, in fact to all the
western world, and traveled in various directions, till he
went finally to New Orleans. Wherever he went, he
spoke disrespectfully of the government of his country,
with aview to facilitate the consummation of hisown de-
signs. He represented it as destitute of energy to sup-
port or defend our national rights against foreign enemies,
and of spirit to maintain our national character. He uni-
formly said, that we had no character either at home or
abroad. To those in whom he confided, he asserted that
all the men of property and influence were dissatisfied
with its arrangements, because they were not in the
proper situation to which they were entitled : that with
five hundred men he could effect a revolution by which
he could send, the president to Monticello, intimidate
congress, and take the government of the United States
into his own hands ; that the people of the United States
had so little knowledge of their rights, and so little dis-
position to maintain them, that they would meanly and
tamely acquiesce in this shameful usurpation. This is
the very language of the prisoner, about the government
and people ; representing the one as totally destitute of
all energy and talents, and the other of all patriotism
and virtue. But he confined this language to the peo-
ple of the east ; he spoke a different language to the peo-
ple of the west. He told them that they,were in a state
of colonial dependence on those of the Atlantic States,
and annually paid millions to the government of the
United States, for which they derived no benefit v:hat-
ever ; for which they received no protection, no return.
The people on the other side of the Alleghanies were told



504 TRIAL OF AARON BURR.

that a separation was necessary and would unquestiona-
bly take place ; that it was not likely to take effect by
the operation of natural, of moral and political causes,
but as determined by a particular chain of events ; that
the destiny of the republic was fixed, and that this revolu-
tion would be accomplished in less than two years.' I
thank God that this prediction has not been fulfilled, and
I hope our posterity to the latest generation will thank God
that it has not been fulfilled before their time ! Such
was the language of the accused ; such the sentiments
which he avowed, and the doctrines which he endea-
vored to propagate. He said everything to dissatisfy
them with their brethren of the east, though all this time
he pretended that his objects were of a purely agricultu-
ral nature. Nor did he confine himself to conversation
with intelligent men only; there were writings published
that came from the pen of the person who is indicted, as
connected with him, calculated to scatter disaffection
among the people and prepare them for his plans.

To accomplish these plans, in the summer and fall of
1806, men were actually enlisted, boats were built on the
waters of the Ohio, provisions purchased to an enormous
amount, and arms and ammunition provided, as if the ob-
ject was meant to be carried into effect in a foreign na-
tion, a"nd as if some hostile expedition were on foot.
Some of these men, about forty in number, assembled
with arms, on Blannerhasset's island, in order to descend
the river. Burr was not there then ; he had been there
only a short 'time before, and intended to return, but
was warned not to return ; but his absence*at the time
when the people assembled is totally immaterial. A
m^n may " levy war " against his country, when not pres-
ent. A man may "levy war " against a country, though
three thousand miles distant. This we may probably
have an experience of in the course of a very few months.
But this principle has been sufficiently established by the
decision of the supreme court. " If war be actually le-
vied, 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
considered as traitors."

These troops on the island, seeing the country alarmed



OPENING ARGUMENT OF MR. HA Y. 505

and apprehending that they would be attacked by the
militia of Wood county, made a precipitate retreat by
night, in company with Blannerhassett, and went down
the Ohis to the mouth of Cumberland river, where the
accused joined them and took the command. By this
time their numbers increased to about one hundred.
These men, under the command of Burr and Blanner-
hassett, descended the Mississippi to Bayou. Pierre, a
point not far from Natchez. It was here, gentlemen of
the jury, that he first learned that all his schemes would
.be frustrated by the exertions of the commander-in-chief;
that his letter in cypher had been communicated to the
president ; and it was here that in the first moment of ;
surprise, he expressed to another person his astonish-
ment and indignation, at being (as he said) thus betrayed. '
Finding that the commander-in-chief, had baffled all his
schemes, by communicating his letter to the president,
he entered into a kind of capitulation with Cowles
Meade, was bound to appear before a tribunal at Nat-
chez, from whence, it is said, he came off without leave
of the court, in violation of his recognizance, and in his
flight was taken by Perkins.

It will be proved to you, by express and direct evi-
dence, that a settlement of lands on the Washita, was
merely a cover to conceal the real design, which was to
separate the union, take possession of New Orleans, and
attack the Spanish provinces. But the utmost mystery
and circumspection prevailed on this subject. To the
world at large, and to those with whom he had not
tampered, the object was held up to be the settlement
of lands up the Red river. To some, intimations were
dropped of an approaching rupture with Spain, against
whose provinces the expedition was intended, and the
conquest of Mexico was alluded to ; his language varied
according to the character of the man with whom he
conversed. To a few only his real design was developed ;
but to all he said that there was a great scheme in view.
All were told that the design was just and honorable;
known and approved by the government ; in which the
co-operation of the army was to be expected ; in which
great wealth was to be acquired, and that it would be
developed as soon as the proper time for the disclosure



5o6 TRIAL OF AARON BURR.

arrived. The time, however, never did arrive. At
Blannerhassett's island, they were told that it was not
the time, but that when they came to the mouth of the
Cumberland, they should be informed. When there,
some of them, whose intentions were really honest, who
were not disposed to violate the laws of their country,
and who were induced to join him by the expectation
of acquiring wealth, by laudable and honorable enter-
prize, were anxious, and endeavored to know what was
the real design : but circumstances, they were told, were
such, that it could not yet be communicated. Ignorant,
people were led away from their homes, under a belief
that they would be speedily informed of the whole pro-
ject. The information was promised, but never im-
parted. The consequence was that when Mr. Burr was
apprehended, they were left to find the way back to
their own homes by any means in their power.

Chimerical as this project was, there was only one
single thing wanting to its accomplishment ; the co-opra-
tion of the commander-in-chief, and of the American
army. If General Wilkinson had acted as some have
represented, if he had acted the part of a traitor instead
of performing the character of a patriot, I ask what
would have been the situation of this country at this
moment ? There would have been a civil war raging
in the west ; and the people of the United States, united
as they are by interest, by sympathy and blood, would
have been involved in a sanguinary contest with one an-
other; while our eastern coasts would have been in-
sulted and ravaged by an insolent and rapacious foe, in
consequence of their knowledge of our divided situation.
From this calamity in the west we have been protected
by the vigilance and integrity of the commander-in-chief.
I care not how my declaration may be considered : but
I will venture to assert, that from the adoption of the
federal constitution till this time, no man has rendered
more essential service to the people and government of
the United States than General Wilkinson has done, by
counteracting and defeating this project. Yet, for this
service, eminent and important as jit is, he has been as
much censured, abused, and calumniated, as if he had
joined in it.



OPENING ARGUMENT OF MR. HAY. 507

It is not for me to anticipate the defense which will
be made for the accused, but I presume I may speak of
the defense which he has made. He stated himself,
while under examination, that his scheme was peaceful
and agricultural. If the ground shall be again taken, it
will be extremely easy to satisfy you by a variety of cir-
cumstances, that this was not the scheme contemplated
by those engaged in that expedition. I intend hereafter,
if necessary, to enter into .an enumeration of those cir-
cumstances, but at present I feel myself too much ex-
hausted to detail them.

I have observed that you would enter upon this in-
quiry with candor and patience, and I must hope, too,
with firmness. You will contemplate and decide this
question on the same principles, under the same laws,
and in the same manner as if the question were between
fhe United States and the most ignorant an<3 deluded
of those concerned in the scheme. It is true that the
prisoner has been vice-president of the United States ;
he has been the second in office in the government of
this country, and perhaps the second in the confidence
and affection of the people ; and that he possesses
talents and energies, which, at the approaching crisis,
might have been employed most honorably for himself,
and most usefully for his country ; but these circum-
stances rather aggravate than extenuate his guilt, if he be
guilty. In other countries, a discrimination may be
made between different classes of the community ; it is
not often that the laws of society operate upon men of
this stamp in those countries. Lord George Gordon, the
miserable fanatic, who marched at the head of the riot-
ers in London, in the year 1781, was discharged, while
eighteen or nineteen of his poor deluded followers paid
the forfeit of their offenses, and were punished for his
crimes. I call upon you, gentlemen of the jury, to dis-
regard all such distinctions in this land of liberty, equal-
ity, and justice, to view this case in the same light in
which you would regard it if any other man in the com-
munity were brought before you. I call on you to do
; vstice. and to decide the cause according to the evidence
^h'ich will be produced before you.

After Mr. Hay concluded, some desultory observations



5o8 TRIAL OF AARON BURR.

were made by the counsel on both sides, with respect to
the accommodation of the jury, and the times of meet-
ing and adjourning the court during the trial. Some ar-
rangements were proposed for the jury : that they were
to occupy convenient^ rooms in the capitolat night, and
in the recess of the court; that for the sake of exercise,
they might walk out in a body, or separately, if accom-
panied by the marshal, or one of his deputies; that they
might send or receive letters, if shown to the marshal ;
but that all letters should be laid before the court which
should appear to relate to the trial, and be designedly
sent to influence their verdict. These arrangements
were not adopted at this time, but their consideration
postponed, all parties being desirous to accommodate
the jury as much as possible, consistently with the
necessity of keeping them together, secure from intrusion.

On the question, how long the court ought to be oc
cupied every day during the trial, Mr. Burr expressed a
wish that the court should, for the sake of expediting
business, meet at as early, and adjourn at as late an hour
as possible. He referred to trials in England, where the
court sat twelve and sixteen hours every day ; and pro-
posed that the court should sit ten or twelve hours each
day. This was opposed as too long, fatiguing, and op-
pressive, in such warm weather.

The Chief Justice said that the court had no wish on
the subject, but was willing to consult the convenience
of the gentleman of the bar, and the accommodation of
the jury.

It was then proposed that the court should meet at
nine o'clock in the morning, and sit till four in the after-
noon ; this was finally determined.

Mr. Hay proceeded then to the examination of the
witnesses summoned on the part of the United States ;
General William Eaton was sworn, when

Mr. Burr rose and objected to this order of examin-
ing the witnesses. He said Mr. Hay had not stated the
nature of Mr. Eaton's testimony, but he presumed that
it related to certain conversations said to have happened
at Washington ; adding, that the propriety of admitting
any other testimony depended on the previous proof of
an overt act.



ORDER OF EXAMINING WITNESSES. 509

Mr. Hay. Our object is to prove by him what is con-
tained in his deposition, which has been published.

Mr. Botts, Mr. Wickham, and Mr. Martin then called
on them to prove (what they said the court had already
determined to be the proper course of proceeding) an
overt act. They presumed that if the decision of this
court were to be respected, gentlemen should call on
the witnesses to prove facts before declarations. But if
gentlemen did not admit that this point had been already
sufficiently determined by the court, it would be their
duty to go into a recapitulation of the arguments, and
quotation of the authorities heretofore referred to, un-
less the court would say that the question had been
already decided. Their object was to save the time of
the court ; they knew that there had been a great deal
of war in the newspapers ; but they also knew from
actual experience and positive knowledge, that there had
been no war, in fact, in this country; and knowing that
there has been, in fact, no war, are we (they asked) to
be entertained by this and that idle story ; to waste
several weeks at great expense and trouble ; detain from
their homes the court, counsel, and jury, and keep the
prisoner in a very unpleasant situation ; and all for no
useful purpose, in the discussion of points entirely irrel-
evant to the question in issue ? Shall we be told in
justification of this great waste of time, and this immense
trouble, that they mistook the law and the testimony ;
that they expected to prove an overt act, but were dis-
appointed ?

They further contended that the material fact on which
all the merits of the controversy depended ought first
to be proved in every case ; that it would be irregular,
irrational, and illegal to admit corroborative testimony,
before proof was adduced of the principal fact which it
was intended to confirm. They admitted that it was
usual in most criminal prosecutions to call on the prosecu-
tor to begin his proof in support of either point, fact, or
intention, as he might deem proper; but, they said,
there were two reasons for this practice. First, every
prosecutor, learned in criminal law, began with proving
the fact on which principally the charge was founded.
Or, secondly, the fact was kno\vn to be susceptible of



5io TRIAL OF AARON BURR.

clear proof, and therefore, there was an acquiescence on
the part of the accused with respect to the commission
of that fact. As in the case of a prosecution for murder,
the fact of killing ought certainly to be first proved ; but
it is generally so well known to have been committed by
the accused, that there is no question made on that
point ; and the defense arises from the motives or in-
ducement to the perpetration of the act whether justifi-
able or excusable. In such a case, it would be ridicu-
lous to inquire into the causes or circumstances of the
killing, till the death were proved ; but in all other cases
of a similar nature, where the fundamental fact was
denied, it must be proved before any confimatory proof
should be admitted. And wherever a prosecutor, from
inadvertence, want of experience, or any other cause,
began at the wrong end of the prosecution, and the ac-
cused himself did not see cause to acquiesce, he had a
right to apply to the court, to require proof of the principal
fact. They argued with great ingenuity and at consid-
erable length in support of this principle ; that the court
ought not to admit corroborative testimony, in anticipa-
tion of the principal fact to corroborate which it is
sought to be introduced. They referred to the former
decision of the court, relative to this same point on the
motion to hold Mr. Burr to bail in a greater sum of
money than had been at first required, and insisted that
the order of evidence was part of the law of evidence ;
that the court was to judge of the competency of testi-
mony, and had a right to stop any evidence which it
deemed immaterial; that it was of no avail to prove in-
tentions or designs before an overt act, an open deed of
war, had been established ; that, as in a writ of eject-
ment, it would be ridiculous to begin with proving the
boundaries before the title was proved, so it was im-
proper to begin with the declarations of Mr. Burr, or any
conversations, until the overt act were shown ; that these
declarations could only be admitted as confirmatory
evidence ; that it would be puculiarly hard on any indi-
vidual, to ransack and expose all the transactions of his
whole life in a court of justice ; that nothing was more
repugnant to justice, than to discuss, misrepresent, and
torture every conversation, however innocent, which he



ORDER OF EXAMINING WITNESSES. 5 1 1

had held, and every declaration, however loose and inad-
vertent, which he had made at any time, and on any oc-
casion, before it was known whether any actual crime
could be proved against him ; that if the prosecutor
would thus proceed to develop the intention only, the
court had a right to stop him, and inquire the produc-
tion of evidence of the act itself. They made many
other obversations to the same purport. They cited
Foster, p. 246, and Judge Iredell's opinion on Fries's
Trial, the Case of Smith and Ogden, and Hardy's Case.
Their arguments on this doctrine are considerably con-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 48 of 64)