Aaron Burr.

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

. (page 49 of 64)
Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 49 of 64)
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densed : because it was afterwards, with other points,
very fully and elaborately discussed on the motion made
by Mr. Wickham to arrest the evidence.

."!/>. Wirt addressed the court on this subject, as fol-

After expressing his regret at the unnecessary waste
of so much time, by so many motions and obstacles
thrown in the way of the prosecution by the accused, he
contended that the opposition made to the introduction
of this testimony, and to the arrangement of the attor-
ney for the United States, was unprecedented ; that
from the first foundation of courts to this day, it had
been the practice for the prosecutor to display the evi-
dence in his own way ; and that it manifested a disrespect
to the attorney, to require a departure from it in this
instance. I defy, said Mr. Wirt, the gentlemen to pro-
cure a single example from all the English authorities,
from the whole history of their jurisprudence, where the
attorney-general, or the counsel for the crown, has been
arrested in the introduction or arrangement of the evi-
dence, by the counsel of the defendant, and put on a
different course. I defy them to produce a single ex-
ample of any interference with the course adopted by
the prosecutor. It depends on himself, who knows the
evidence best, to state and exhibit it according to his
own judgment. If the whole evidence be adduced, the
result will be the same, in whatever manner it may be
arranged ; but the chronological order which the attor-
ney was about to pursue, unfolding events as they oc-
curred, is no less conformable to law and reason than
sanctioned by uniform experience. It develops this


conspiracy from its birth to its consummation ; unravels
Ihe plot from its conception to its denoument, and traces
Aaron Burr step by step as he advanced and became
more bold, till the act was consummated by the assem-
blage on Blannerhassett's island. Is not this the lucid
order of nature and reason? Would you begin to nar-
rate a tale at the end of it ? If you were to write a his-
tory of the late revolution, would you begin at the siege
of York ? We wish to display the history of facts as they
happened, not only because it is the most luminous mode
of communicating them to the jury, but because it is our
duty to vindicate it as the right of the attorney, as con-
sistent with universal practice in prosecutions, both in
our own and every other civilized country. Examples
of a contrary practice might be found in England, if it
ever existed ; but no case can be shown in the courts
of Great Britain, where the counsel for a prisoner
has been permitted on a trial to invert the order of
chronology for his own purposes. I refer the court to
the trial of Hardy, pages 95, 96, 97. Though that case
is not directly applicable to the case now before the
court, I introduce it to show the independence of the
attorney-general of England, in conducting prosecutions
and introducing testimony as he thinks proper ; and to
prove that the opposition now made to our evidence is
unusual in that country. He introduced many letters
and papers against Hardy, and declarations of his asso-
ciates. In page 95, " Then followed the correspondence
between Mr. Hardy as secretary to the corresponding
society, and Mr. Gerald and Mr. Margarot, two of the
delegates at the convention in Edinburgh ; most of these
papers were printed also in the appendix to the report
of the committee of secrecy." They were produced by
a witness by the name of Gurnell. These papers being
all read by the officer of the court, Mr. Bowen said,
" My lords, we now propose, on the part of the crown, to
read the proceedings of the convention itself." To this,
Mr. Erskine, for the prisoner, objected ; because, though
the society had been- formed, the object of its formation
had not yet been heard of by evidence ; that if Margarot
and Gerald had exceeded the letter and spirit of their
instructions, the prisoner could not be affected by it


that he was charged with no act of the convention
at Edinburgh. " He is charged,' said Mr. Erskine, p. 96,
" with having encompassed the death of the king ; to
prove that he had that wicked intention, the evidence
should be clear, and refer to the act itself; but no act
can be given in evidence, that does not go to show that

<-> . Mr - *

the prisoner had that encompassing in his own heart at
the time the act was committed." This shows his con-
viction, that proof of the intention may precede that of the
acts ; p. 97. " I must take care that the rules of law are
preserved inviolate. All that I mean to say is, that if Mr.
Hardy knew of the proceedings of this convention in
Edinburgh, then my objection falls to the ground in this
respect." The lord president agreed that the evidence
proposed, could not be adduced immediately against the
prisoner. He observed, however, that it might be let in ;
but that the application of it was another thing. At all
events, the prisoner might afterwards object that the del-
egates had exceeded their commission, and that objec-
tion would be valid so far. Mr. Bower. " Yes my lord,
we mean to show, in many instances, the prisoner's sub-
sequent approbation of the proceedings of the British
convention." The lord president. " That declaration
is enough to let in the evidence; the application of it
will depend on what will further appear."

Now, sir, how were the proceedings of this convention
-admitted as evidence? The court decided that they
should be first read, and applied afterwards by other tes-
timony to Hardy. Did the court tell the prosecutor,
" You shall stop, till you show a previous connection be-
tween them, and his subsequent approbation ; you shall
not read these proceedings?" The attorney told the
court, " I will adduce evidence to let the testimony in. I
will prove his approbation subsequently." The at-
torney's declaration of his intention to prove the appro-
bation of Hardy, was respected by the court, and those
proceedings were permitted to be read. Now, here was
an evident perversion of the rule tor which the gentle-
men contend. For, according to it, the subsequent ap-
probation of Hardy ought to have been proved before
the proceedings of the convention ; the admissibility of
the latter depended on the proof of the former. If


this approbation could not have been proved afterwards,
the reading of the proceedings would have been illegal
and the time employed in it lost. But the court did
not stop the attorney. It told him, on your declaration
that you will bring it home to Hardy, you may read the
evidence now. Yet this was a direct perversion of the
doctrine which gentlemen wish now to establish. Why
should not the same respect be paid to the declarations
of the attorney for the United States in this case? If
you permit us to proceed in the way we propose, we
shall neither violate principle nor waste time. Can there
be an overt act of treason without an intention to com-
mit it? Can any assemblage, however large, armed or
arrayed, however disorderly and tumultuous, commit an
act of treason, without intending it ? and ought not their
intention be proved ? The- rule of law excludes what-
ever does not touch the issue; but the intention is an
important feature in that issue. Every transaction
derives its character principally from the intention. It
is the great point in every case. Yet we are stopped
from explaining the intention by a pretended difficulty;
that its premature introduction tends to fetter the minds
of the jury, as if the proof of the intention preceding
that of the act, did not present a unity of action from
the birth to the consummation of the design. But we
are to be stopped. The objection manifests a want of
respect for the attorney, as if he knew not, better than
any other, the nature and bearing of the evidence, and
how to unfold it in the most regular way. It is im-
proper, not only for this reason, but because the mode
we propose is the most luminous and correct ; it is the
order of nature itself, as it traces the transactions from
beginning to end. We insist on its correctness for an-
other reason ; because the method they propose, can not
produce a single good effect. Gentlemen say that if we
prove the overt act first, we can be permitted to show
the design afterwards. They say that none is yet
proved. Suppose we prove no overt act in the opinion
of the court, how are the jury to be disposed of? Could
you send them out to deliberate, or could you discharge
them ? If the prosecutor state that he is about to pro-
ceed to prove the intention, can the court say that it


does not prove the overt act, and that therefore they
will sent the jury out without hearing the evidence re-
specting the intention ? The court has no such powers.
The only power which the court possesses is, not to
direct the order in which the evidence shall be intro-
duced, but to instruct them on the law ; to direct
whether the evidence be competent or incompetent to
be laid before the jury ; to determine its weight or
sufficiency to prove the overt act is the exclusive pro-
vince of the jury. The court can not withhold from
them any evidence touching the issue. Will the court
stop us? Will the court or the jury decide on the issue?
All the authorities of the law concur in this, that the
whole testimony shall come before the jury; that they
have a right to hear the whole and decide on it.

The only inquiry now is, as to the order in which it
shall be introduced. We insist that the mode which we
propose 'is the most luminous, and most favorable to a
complete comprehension of the subject ; and that that
which they maintain, is the most confused and worst cal-
culated to attain that end.

I will refer you to the sentiments delivered by Judge
Iredell, on the trial of Fries, pages 174, 175 : Mr. Lewis
having stated a question, whether the overt act laid in
the indictment in a certain county, must not be proved
to the satisfaction of the jury, both as to fact and inten-
tion in the same county ; or whether the overt act did
not include both fact and intention ? Judge Iredell re-
plied, " that he considered Foster's Crown Law as settling
that point. When two witnesses are produced, who
prove the overt act laid in the indictment, there might
then be evidence from other counties respecting the in-
tention. This is the opinion of Judge Foster, and it is
my opinion. But there is another thing. It goes to a
point which is inadmissible ; it is not for the court to say,
whether there was a treasonable intention or act as charged
in the indictment ; that is for the jury to determine ; we
have only to state the law. We, therefore, should have
no right to give an opinion upon it. Again, if no evi-
dence could regularly be admitted out of the county,
until both the fact and intention were established where
the crime is Inid, the consequence would be, that there


ought to be some way of taking the opinion of the
jury, whether they believed that the crime was com-
mitted at Bethlehem, before the court could proceed to
extraneous testimony ! This can not be done. A jury
must give a verdict on. all the evidence collectively; if
the evidence be admitted, then the jury is bound to re-
spect the weight of it ; the competency of that evidence
is for the court to decide ; but the jury must estimate
its weight." You can not stop the prosecutor after he
has given a part of the evidence. The jury must hear
the whole, and make up an opinion on the whole.
Neither the court nor the gentlemen can stop us. If we
prove an act in the course of the whole evidence, it will
suffice. If we prove either first, we must go a step be-
yond that, and prove the other, so as to show that it is a
complete overt act of treason.

Mr. Botts has referred to the opinion of Judge Iredell,
but certainly it can not be interpreted in his favor. The
judge is not contemplating the order of evidence; he
speaks of the evidence to the jury. The point before
him was, not the order of the evidence but the propriety
or impropriety of its introduction at all. The inquiry
was, whether the prisoner were guilty of levying war
against the United States, at Bethlehem, in Northamp-
ton county, and whether the evidence supported that
charge? and the judge told the jury, that, if the prisoner
went to the place where the act was committed with
treasonable intentions, the treason' was complete. He
investigated nothing but the propriety of the evidence.
Of its order, nothing was said. The court can not stop
the inquiry. Who is to judge of the evidence of the
overt act? The court? Will the court tell the jury^
when they are satisfied that the overt act has been
proved ? When are we to be stopped ? Is the court to
decide at what stage of the evidence we are to be
stopped ? If the court stop us before we adduce all our
evidence, they usurp the power of deciding on the evi-
dence. Is this a part of your functions? I think not.
The whole evidence must be laid before the jury; the.
court taking care not to let in any but what is legal
The authority quoted by Mr. Botts, from Foster, 216.
has no sort of application to this point.


The principle of the decision in Vaughan's case is not
against us. The indictment against Captain Vaughan,
was for adhering to the king's enemies on the high seas ;
and the overt act laid was his cruising on the king's
subjects, in a vessel called the " Loyal Clencarty." The
counsel for the prosecution offered evidence to prove,
that he had some time before cut away the custom house
barge, and had gone a cruising in her. This evidence
was opposed by the prisoner's counsel, and rejected by
the court ; " for were it true, it is no sort of proof, that
the prisoner had cruised in the Loyal Clencarty, which
was the only fact he was then to answer for." This case
only proves that on a trial on an indictment for any
specific treason, evidence of a previous intention tc
commit a distinct substantive treason is inadmissible ; or
in other words, that the evidence must prove the charge ;
it being a principle universally correct, than an offense
different from that which is charged, shall not be proved.
It was merely the rejection of evidence foreign to the
point in issue. It only proves that no evidence of what
is a different and distinct substantive treason of itself
shall be admitted to support any indictment. This
doctrine ought to have more effect in England than in
this country, since the abuses agaipst which it is in-
tended to secure, might there be more extensively in-
jurious than here ; but the same court allowed other overt
acts to be given in evidence, for the purpose of showing
the intention of the prisoner. It is, indeed, as Foster
says, a sound and just rule, that all evidence without the
issue, should be rejected ; but how can testimony show-
ing the intention of Aaron Burr, be said to be without
the issue ? It goes directly to prove the treason in the

T.he doctrine in Smith and Ogden, p. 82, explains the
danger of going out of the statement in the indictment,
and shows the necessity of preserving the principle,
" that the evidence must be pertinent to the issue."
The exhibition of proof of Aaron Burr's intention is with-
in the rule established in the English courts, and the de-
cision in Smith and Ogden.

Mr. Wirt further remarked, that the former decision
y r this court on this point, which gentlemen had thought


proper to refer to as decisive in their favor, could not be
rightly so considered : that two material circumstances
would justify this conclusion. First, the court at that
time wished to avoid such a discussion and display of
the evidence as might prejudice the public mind. Sec-
ond, the court then decided on the law and the fact, and
performed the duties of judge and juror. It might decide
when it was proper to stop or proceed ; be satisfied with
the testimony already introduced, or require more. But
that now the jury were to decide on the guilt or innocence
of the accused, the court had only to state the law
on the different points arising in the course of the

Mr. Lee in substance contended, that the act, an open
deed of war, committed in the full view of the world, on
the loth day of December, on Blannerhassett's island, it
it ever existed, was susceptible of clear proof; that the
time, place, and manner, of committing the offense, as
laid in the indictment, were material to be proved ; that
it was not pretended that the counsel for the prosecution
had any right to exhibit proof of any other treason than
that specified in the indictment ; that the effect of the facts
to be proved, must be discussed hereafter, but that the
proof of them, as preliminary to, and the foundation of
other testimony, was indispensably requisite ; that it was
difficult to de'scribe the absurdity to which the admission
of other evidence, before proof of the acts authorizing
that admission, would lead ; that it would be almost as
inconsistent and improper, as to attempt to make the
effect precede its cause, or, according to the vulgar
phraseology, to put the cart before the horse ; that it
would be changing the rules of law ; that a great deal ot
time might be occupied in adducing a great deal of tes-
timony, to charge a man accused of murder with malig-
nant intentions, when the person said to be murdered
was actually alive ; or of arson, when the house alleged
to be burnt was standing ; that the act existed, or it did
not. If it existed, it ought to be immediately proved :
if it did not exist, they ought magnanimously to yield,
as they could not produce that testimony which might
render all other evidence applicable.

Mr. Lee further dilated with great force and ingenu-


ity ; but, for the reasons before mentioned, his arguments
are necessarily condensed.

Mr. Martin spoke to the following effect :
I shall take the liberty of adding a few observations, to
what has been already said.

The question is, whether the prosecutors must not
prove an overt act in the first instance, before any other
evidence can be introduced ? We contend that they must,
and that law and reason support us. They admit that
Mr. Burr must be proved to have committed one or more
overt acts ; and that the court and jury must be satisfied
that these acts were committed with a treasonable de-
sign ; that he levied war against the United States, with
intent to destroy the constitution and government there-
of. This is the true construction of the words " levying
war." There can be no " levying war " unless the object
and desigfn be the subversion of the government of the
United States. It is admitted that both these things
must be proved, before he can be found guilty. The
question which results necessarily is, which of them is
first to be proved ? The very eloquent and ingenious
counsel admit, that it is not of much consequence in
which order these facts are to be established ; but insist
on proceeding as they have done, for two reasons ; first,
because it is the most correct and usual mode ; and, sec-
ondly, because it is a mark of disrespect to the attorney
of the United States, to interfere with his arrangement
of the evidence. As to the second cause, which I think
proper to answer first, I will only say, that we can not
conceive why they should have construed the perfor-
mance of a professional duty into a manifestation of dis-
respect for the gentleman. We excercised a right, and
discharged a duty to our client, in opposing what we
deemed an illegal proceeding. How, then, can he con-
sider himself treated disrespectfully ? He certainly has
no right to view it in that light. We had no such inten-
tion ; and I will say further, that if he conduct himself
with that mildness and decorum which ever becomes a
public prosecutor, he shall receive from us every mark of
respect. As to the first and principal reason urged by
gentlemen in support of this mode of conducting the
prosecution, that it is the most correct order of proceed-


ing ; it might be proper, if it were an indictment for a
conspiracy to commit treason, to proceed in the first in-
stance to prove the intentions ; but in this prosecution
for treason for " levying war," I confidently say, that the
most natural order of proceeding is, to begin with proving
the material act, without which all other evidence whatso-
ever would be irrelevant and improper. In Great
Britain, a conspiracy to commit treason is made treason
by a particular statute ; that is, " compassing the death
of the king," is made high treason. In that particular
instance, the intention, the mere act of the mind is
rendered, what it is in no other case without an act in
pursuance of it, criminal and punishable. In that case,
which is in fact a conspiracy to commit treason, the in-
tention of the heart, the formation of the design in the
mind, is the very crime ; and the correct mode of pro-
cedure on a trial for it, would be to begin to show the
conspiracy, the number of persons engaged in it, the
time when, and place where, they did conspire, and other
circumstances connected with the conspiracy ; but this
applies only to a prosecution on an indictment for com-
passing the death of the king. In every other case,
where a material act constitutes the crime, the prosecu-
tor must begin by proving that act, either by positive
testimony, or strong circumstances, to show that the
party accused committed it. In a prosecution for trea-
son for "levying war," after the cause is opened, proof
of the act should be adduced, as is done in every other
criminal case. On a trial for murder, the act of killing
must first be proved, if not admitted ; in a prosecution
for burglary, the nocturnal breaking into the house must
be proved ; in larceny, the taking and carrying away
must be proved ; and in a prosecution for robbery, it is
necessary to prove the taking by force and violence from
the person, before any testimony can be admitted re-
specting the felonious intention. The true and natural
order in all prosecutions is to show first that the prin-
cipal act on which the charge depends has been com-

The gentleman who opened the cause argued it on
the principles of common sense, which he says is some-
times in discussion not adhered to by lawyers. Let us


examine whether he has himself verified this sentiment,
and how his doctrine applies to this case. Does not
common sense require that the act which is the very
foundation of the charge, should be proved in the first
instance ? Would it not be absurd to go into evidence
to show that the act was committed with a treasonable
intent, without any testimony to prove that the act was
committed at all? Is it rational to inquire into the de-
sign and intention with which an act has been performed,
without proving that it has been performed ?

The gentleman who spoke so eloquently against our
motion, says that the jury must judge of the weight of
evidence, and that the court can not stop the prosecutor
in his examination of witnesses, and command the jury
to find such a verdict as it pleases to require ! The gen-
eral principle is not controverted by us, but we deny the
inferences which he has drawn from it. The jury are
certainly to decide on the weight of evidence, but the
court is to pronounce the law, on what is or is not legal
evidence. Suppose only one witness were introduced to
prove the overt act, and it were candidly declared by
the counsel for the prosecution that he could prove it by
no other witness, would he be permitted then to pro-
ceed to examine the intentions of the party accused ?
Would it not then be the duty of the court to stop
him, and tell the gentlemen of the jury that there was
no evidence to convict the accused ; that it would be in
vain to proceed further, since it was admitted that the
constitutional requisition of two witnesses to prove the
overt act, could not be complied with ? We do not con-
tend that the court has a right to tell the jury, " You
must acquit the party ;" but it is undoubtedly its duty
to expound and enforce the law, and this is all we want
to be done.

Permit me again to recur to the case of a trial for mur-
der. A great deal of the time of the court might be
taken up to prove malice on the part of the person in-

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 49 of 64)