Aaron Burr.

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

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has been read by Mr. Wickham. Into what embarrass-
ments must the ingenious and vigorous mind of that
gentleman have been driven, before he would have taken
refuge under this act of assembly? It is but to read it
to see that it has no manner of application whatever to
this motion ; that it applies to the case of a person
already committed ; declaring that such a person shall
be bailed, if not indicted at the first term after his com-
mitment, and discharged if not indicted at the second
term. Revised code, page 103, 10. It begins thus :
" When any person committed for treason." Now. sir,
is Aaron Burr committed for treason ? If not, it is
obvious that the clause has no manner of application to
him. Why, sir, the object of this motion is to commit
him ; gentlemen must have been in strange confusion
when they resorted, to this law. Mr. Wickham asks if
General Wilkinson be a material witness, why he is not



ARGUMENT. 31

here ? Who is General Wilkinson ? says that gentle-
man. Is he not the instrument of the government,
bound to a blind obedience? I am sorry for this and
many other declamatory remarks which have been un-
necessarily and improperly introduced ; but the gentle-
man assures us, that no imputation is meant against the
government. Oh, no, sir; Colonel Burr indeed has been
oppressed, has been persecuted ; but far be it from the
gentleman to charge the government with it. Colorfel
Burr indeed has been harassed by a military tyrant, who
is " the instrument of the government bound to a blind
obedience ;" but the gentleman could not by any means
be understood as intending to insinuate aught to the
prejudice of the government. The gentleman is under-
stood, sir ; his object is correctly understood. He
would divert the public attention from Aaron Burr, and
point it to another quarter. He would, too, if he could,
shift the popular displeasure which he has spoken of,
from Aaron Burr to another quarter. These remarks
were not intended for your ears, sir ; they were intended
for the people who surround us ; they can have no effect
upon the mind of the court. I am too well acquainted
with the dignity, the firmness, the illumination of this
bench, to apprehend any such consequence. But the
gentlemen would balance the account of popular preju-
dices ; they would convert this judicial inquiiy into a
political question ; they would make it a question be-
tween Thomas Jefferson and Aaron Burr. The purpose
is well understood, sir ; but it shall not be served. I
will not degrade the administration of this country by
entering on their defense. Besides, sir, this is not our
business ; at present we have at\ account to settle, not
between Aaron Burr and Thomas Jefferson, but between
Aaron Burr and the laws of his country. Let us finish
his trial first. The administration, too, will be tried
before their country ; before the world. They, sir, I
believe, will never shrink, either from the evidence or the
verdict. Let us return to Aaron Burr. " Why is not
General Wilkinson here?" Because it was impossible in
the nature of things for him to be here by this time. It
was on the first of April that you decided on the com-
mitment of Aaron Burr for the misdemeanor; until that



32 TRIAL OF AARON BURR.

decision was known, the necessity of summoning wit*
nesses could not be ascertained. General Wilkinson is
the commander-in-chief of the American troops, in a
quarter where his presence is rendered important by the
temper of the neighborhood; to summon him on the
mere possibility of commitment would have afforded a
ground of clamor, perhaps a just one, against the admin-
istration. The certainty that Aaron^Burr would be put
upon his trial, could not have been known at Washing-
ton till the 5th or 6th of April. Now, sir, let the gentle-
men on the other side make a slight calculation. Or-
leans is said to be 1500 or 1600 miles from this place.
Suppose the United States' mail traveling by a frequent
change of horses and riders, a hundred miles per day,
shpuld reach Orleans in 17 days from the federal city, it
would be the 24th or 25th of April (putting all accidents
out of the question) before General Wilkinson could have
received his orders to come on. Since that time until
this, he has had thirty days to reach Richmond. Could
a journey of 1500 or 1600 miles be reasonably performed
in thirty days? Who can bear a journey of 50 miles per
day for thirty days together? But, sir, General Wilkin-
son is not here ; due means have been used to bring him
hither ; his materiality is ascertained by his affidavit,
and the attorney does not choose to send up the indict-
ment in his absence. But we admit, it seems, that we
are not ready to make good our charge. In my opinion
there is evidence enough to prove the treason indepen-
dently of General Wilkinson. But it is important in
every point of view, that that gentleman should be here.
It is important to his own reputation ; it is important to
the people of the United States that he should be here ;
and on the part of the grand jury, sir, there is no calcu-
lating what inferences unfavorable to the prosecution
might be drawn from the mere circumstance of his
absence. The attorney is therefore, in my opinion, very
right not to hazard the justice and the fair trial of this
case, by sending 'up the indictment in General Wilkin-
son's absence.

But it seems that Wilkinson's affidavit has been
already decided to have no relation to the charge of
treason. To what General Wilkinson's affidavit tended



ARGUMENT. 33

while it was inomalated, insulated, or connected only
with that of General Eton, is no proof of what its ten-
dency may be now, in connection with the great mass
of additional testimony which we have collected. Sir, >
we say that it is the key-stone which binds the great
arch of evidence now in our possession. As to sending
up the indictment, it is out of the question ; truth and
justice require that it should not now be sent up. But
we hope, sir, that the motion to commit Aaron Burr
will be received, because we think it not only a legal,
but also a just and necessary measure of precaution..

Mr. Hay. On this occasion, I beg leave to make one
or two preliminary remarks. I stand here engaged in
the performance of a very serious duty. The duty I
have to perform is, indeed, most serious and important.
The subject now before us is one which deeply affects
the character of the government ; and the charge is
the most solemn and interesting that can be exhibited
against any individual. The motion I have to make is,
that Aaron Burr may be committed on a charge of
treason against the United States !

Sir, it was natural to suppose, that such a serious
charge would have made a most serious impression
upon Aaron Burr's mind ; that he would have roused
all the energies of his understanding in his service, in
vindicating himself, and not in casting imputations upon
the government. Why, then, does he turn from defend-
ing himself to attack the administration ? Why these
complaints of persecution which have fatigued our ears ?
I most solemnly deny the charge. I most confidently
avow, that there is not a tittle of evidence to support it.
None can be produced, unless it be a persecution, that
the government brings him before a legal tribunal,
where his guilt or innocence will be impartially estab-
lished. Aaron Burr stands accused of the 'highest
crimes and misdemeanors; he stands charged with a
deliberate design of involving his country in all the
horrors of a civil insurrection, or of entangling her in a
war with a foreign nation. This is the true question
before the court ; and instead of meeting this charge
with the energy and firmness which became him ; in-
stead of confronting it with his evidence, he complains
x. 3



34 TRIAL OF AARON BURR.

forsooth of persecution ! And where, sir, is this tre-
mendous persecution ? " Because he was sent here by
a military authority ?" But Aaron Burr has been tried
in the country where he was arrested ? Was Blanner-
hasset's island in the Mississippi territory? Or ought he
not to have been conveyed to that judicial district,
which possessed a competent jurisdiction ? But if Aaron
Burr ought to have been sent hither, by what number
of men should he have been escorted ? Was it by one
man only; from whom he could have been so easily
rescued, and whose vigilance he could most probably have
eluded ? Or ought he to have been conveyed, as he
really was. by the energy of men, like Perkins, whose un-
shrinking firmness, and whose humanity (in the presence
of Aaron Burr, himself, I avow it, let him deny it if he
can), had completely qualified him for the safe trans-
portation of his prisoner? But, sir, when this cry and
yell of persecution is once excited,, it is not easy to set
bounds to its fury. Not contended with inveighing
against the pretended persecution of the government,
a government which never did persecute, a govern-
ment which can not persecute, and which will forever
stand firm in the affections of the people, from the
integrity and intelligence which mark its measures.
Not contented with lavishing their complaints against
the government, the counsel for the prisoner have even
turned against the humble instruments who conduct
the prosecution. They seriously complain, that we
have given them no previous notice of this motion ; and
these are the very men who have so often offered mo-
tions to this court, without the slightest intimation to
ourselves. Sir, I most positively assert, that no notice
in the present case ought to have been given. I shall
not pretend to assert that Aaron Burr was disposed,
under the present state of things, to effect his escape.
But I say that supposing such to have been the fact,
and supposing that, availing himself of the information
which we had imparted, he should have taken flight ; I
appeal to the candor of every impartial man ; I appeal
to the candor of the opposite counsel themselves,
whether I should not have been guilty of a most gross
violation of my duties?



ARGUMENT. 35

But they say he ought not to be committed, because
the presence of the grand jury suspends the authority of
this court. But where are the precedents which justify
this position ? I have not made many researches into
this case, because I did not suppose that there was a
single skeptic at this bar who would deny the universality
of the proposition that we have laid down that it was
the right of the court to commit in every case where
they deemed it proper. They say that in this case, the
power of the grand jury and the court are concurrent.
Strange that they should forget the immense difference
between their powers ! the evidence which is sufficient
before the latter, is widely different from that which is
necessary to be produced to the former. The testimony
requisite to induce the court to commit the person
accused is less than we are bound to submit to the grand
jury, and much less than that which alone is admissible be-
fore the petit jury. I will quote the authority of the gen-
tlemen against themselves. They say that stronger
evidence is necessary before the grand jury than before a
court for the examination of a prisoner. I think differ-
ently myself; but certain it is, that affidavits are not
admissible to be sent to the grand jury; although they
may be used to convince the court that it is proper to
commit. For my part, I think we are already in pos-
session of viva voce evidence not only sufficient to com-
mit Colonel Burr, but to induce the grand jury to find
in favor of both the indictments ; but I will boldly in-
quire, whether I should discharge my honest duty, were
I to submit my indictments before the grand jury at
this moment, when I have not all the material evidence
which we may possess ? Sir, these gentlemen may cast
their groundless censures upon me; but in vain; all
their clamors will never move me from my purpose.
The course which I am pursuing is sufficient to satisfy
my own conscience; and it is indifferent to me whether
ten or ten thousand men should join in my condem-
nation.

Mr. Botts asserts that we have produced no authori-
ties to prove our position ; and that we have none to
produce. But is it right to be continually recurring to
precedents ? Is there no allowance to be made for the



36 TRIAL OF AARON BURR.

operations of common sense, in any case ? Where cases of
doubt and difficulty occur, a reference of this kind is cer-
tainly propeY to enlighten and fortify our own judgments.
But even admitting the propriety of introducing prece-
dents in the whole extent for which gentlemen contend,
it is their business and not ours to comply with the
-requisition for precedents. We stand upon the broad,
general principle, that courts have the power to commit.
If gentlemen confess this principle in the present case,
why do they not introduce their countervailing author-
ities?

I regret that my duty did not permit me to give my
friend Mr. Wickham notice of this motion, that he might
have more seriously meditated upon the subject before
he urged his objections. If he understood it with his
usual correctness, he never would have troubled the
court with the law of Virginia : for this law has not the
slightest bearing upon the specific proposition before
you.

Mr. Wickham inquires why we do not at once send up
our indictments before the grand jury? Suppose, sir,
we should pursue the course which he recommends;
suppose we should send up our indictments on the evi-
dence which is now in our possession ; several days
might elapse before they would be able to investigate
this body of evidence. In the meantime, some of those
numerous persons, who are prying into every hole and
corner of this city, might probably catch some distant
hint of the probable decision of the jury. They have
certainly too much discretion not to keep their own
counsel; but it is absolutely impossible to exclude com-
pletely the busy eye of curiosity. Some vague insinua-
tions may probably escape; something which might
justify a suspicion of their determination. Suppose, then,
that Aaron Burr were to be actuated by these considera-
tions ; suppose that his fears, (if fears he can feel) should
prompt him to escape, what, sir, would become of our
indictment? Mr. Burr may quit the United States ; he
may flee forever beyond the jurisdiction of this coun-
try ; and in that case, the whole world would ridicule us
for the course we had pursued. Or let us even suppose
that we were to withdraw this motion, where would be



ARGUMENT. 37

our security? Must we trust to the indulgence of Mr.
Burr himself for remaining in this city and standing his
trial ?

We expect General Wilkinson here in a few days.
We have an affidavit which positively states, that an ex-
press to New Orleans, to command his presence on this
trial, was met on the frontiers of the Mississippi Terri-
tory ; we have also letters from the attorney-general of
the United States, explicitly stating that General Wil-
kinson has been officially authorized to leave the army
of the United States, and select whatever mode of trans-
portation he might think proper. [Here Mr. Hay read
the affidavit, showing that the express to General Wil-
kinson had been seen in Athens, in the state of Georgia.]
In the meantime, what is Colonel Burr's situation ? It
is completely optional with him, whether to stay here
and face his accusers, or to avail himself of his liberty
and leave the United States. We call upon this court
to exercise the authority with which they are invested ;
and by binding over Colonel Burr, as well on the charge
of high treason, as of a misdemeanor, to detain him here
for a satisfactory trial.

We scarcely expected to have been asked, why Gen-
eral Wilkinson was not here? The gentleman himself
has said that he is a general. Can he then leave his army
at any time, and without the permission of the govern-
ment ? Make, however, a computation of time. The
attorney-general left this city on the 4th or 5th of April.
He reached Washington on the 7th or 8th. Allow then
a reasonable time for an express from Washington to
New Orleans ; and for a man of General Wilkinson's age
and bulk to travel to this city, and is it probable that
he could have arrived here before this period ? If he
availed himself of the liberty and means to come by
water, the gales have been lately very severe. And
even two of the grand jury have assured me, that if Gen-
eral Wilkinson was exposed to the late tempestuous
weather, he will probably never see the United States.
Mr. Wickham has expatiated upon the attempts made to
prejudice the public opinion through the medium of the
press. Sir, a great deal has been said in the newspapers
:apon this transaction, and a great deal will yet be said



38 TRIAL OF AARON BURR.

But are the presses shut against Colonel Burr, when even
in this very city certain presses have been found to vin-
dicate his motive and designs? But what of all this?
The public mind is hostile to any encroachment upon
the liberty of the press ; and it ought to be so. Where
a crime of such gigantic enormity as that attributed to
Aaron Burr arises in this country, the printers will speak,
and they ought to speak; the purest motives will com-
mand them to speak. If there have been publications
against Colonel Burr, innumerable communications have
also appeared in his favor; and if the publications against
him have contained the severest strictures, they have
resulted from his own character and conduct ; and he has
no right to complain.

He stands on the fairest ground which his conduct and
character can reach. But if in truth prejudices have
been improperly excited against him, why does he wish
to close the only door to his own vindication, by exclud-
ing the evidence ? His counsel exclaim : " Send the
evidence to the grand jury." Surely, if Colonel Burr
wishes to have the evidence before the jury, he should
be much more anxious to have it before the court. The
jury will have one side of the evidence only before them ;
and that will be completely against himself. Both, how-
ever, will go before the court. Why, then, does he
shrink from the evidence? If an unjust prejudice assails
him, the light of truth and evidence will dissipate it.
Why does he shrink ?

The gentlemen on the other side, continued Mr. Hay,
do not do us justice. They charge us with persecution
and oppression. Sir, I never contemplated or wished to
hurt Aaron Burr. I scorn it. I look not to him. I
look only to the duties which I am solemnly bound to
perform. One remark more, sir, and I have done :
Gentlemen on the other side, insist upon the insuffi-
ciency of our evidence ; because we have withheld our
indictments from the grand jury, they have hastily in-
ferred, that we feel our evidence to be too feeble to sAjsi;B
the jury. They are mistaken, sir. I assure themthaB }A} \\
are mistaken. I conscientiously believe, that we have
evidence enough, even throwing out the depositions
themselves, to satisfy the grand jury of the guilt of Aaron



ARGUMENT. 39

Burr. But, sir, puerile indeed would it be for us, under
the present state of things, to submit our case before the
grand jury, on the evidence before us, when we are every
moment expecting better.

Mr. Edmund Randolph addressed the court to the fol-
lowing effect :

Sir, it would have been impossible for us, even had we
received due notice of this notion, to have availed our-
selves of the time that was allowed to us. That would
have been impossible, because the enormity of the
proposition itself, would have baffled all our consider-
ation, and all our researches. Mark the course, sir,
which has been pursued towards my unfortunate client.
First, he was was brought here under a military escort.
Then that little folio of depositions and affidavits, was
laid before your honor; then the charge of treason ; and
then that little cock-boat which was destined to attend
this great ship, on a foreign expedition. You heard it
all, sir, and what did you say? You bound Colonel
Burr to bail, simply on the charge of a misdemeanor, to
appear here at the opening of court ; but not contented
with this security, you superadded, that he was not to
leave the court until it had discharged him. You opened
the door, too, for an ulterior prosecution ; you declared
that if the attorney for the United States should obtain
any additional evidence, the judgment which you then
rendered, would not prevent his indicting Colonel Burr
on the charge of treason.

Sir, thus stands the case, as it was understood by
the whole universe. On Friday, we came here to meet
the whole world ; Friday, however, passes away, and
nothing is done. On Saturday, we came here again ;
Saturday, also, passes away, and nothing is done. But
on Sunday, sir (for it seems that day, which, to the gener-
ality of mankind, is a day of rest, is a day of activity to
some), is broached this new-fangled doctrine, which now
excites our astonishment. They demand precedents,
sir, for our conduct ; and who are they that require it?
Why, sir, they that take things out of the ordinary course
of the law. For thirty years, I have never seen such a
proceeding ; I have never read of such an one in the
English books ; and yet, these gentlemen call upon us



\



40 TRIAL OF AARON BURR.

for precedents. If we were asked for our reasons, sir, we
should have enough to offer ; and first, a judge in the
federal court, sitting in the capacity which your honor
now fulfills, is in the same relation to the accused, as an
examining judge is in the state courts. But, sir, who
ever invited a single magistrate, or a state court to aug-
ment the bail of any individual in the situation of
Colonel Burr? If a man was bound, in a distant county,
to answer to misdemeanor, and another crime was to be
brought against him, to be predicated on the very same
evidence, have you, sir, ever known the trying court to
increase his bail ? There never was such an example,
sir.

Mr. Botts' remark, sir, is not to be answered. You
are changing the constitutional organ of justice. You
are completely blotting out the functions of a grand
jury. The witnesses will be all produced before you ;
but no, improper as this proceeding will be, it is still less
so, than that which they will actually pursue. None of
the United States' witnesses will be brought before you,
but those whom they may think it politic to introduce ;
and depend upon it, that such testimony will be garbled
for the ears of this court, as may be expected to bias
their judgment. Well, sir, and what will be the conse-
quence ? When the grand jury are about to retire to
their own chamber, they will be told that you have de-
manded additional bail. Are you then, sir, to be a
pioneer of blood for the grand jury? Is not this
precedent outrageous, sir? The boasted principle, that
no man is to be condemned but upon the verdict of
twenty-four of his peers, is gone. Throughout this town,
it will be universally reported, that you have solemnly
declared Aaron Burr to be guilty of high treason against
the United States; and some of those to whom the
rumor may extend, may hereafter be impaneled on the
petit jury. And will they feel themselves altogether
unbiassed by your judgment? Why, sir, let it be de-
clared at once, that the grand jury is to be struck out
as an intermediate organ of justice.

Do not, I pray you, sir, let us suffer for the delays and
negligence of other people. I can not blame the United
States' attorney. It is his business to obey the instruc-



ARGUMENT. 41

tions of the government ; and if the witnesses are not
here, it is certainly no fault of his ; but surely there is
time enough to travel from New Orleans to this city in
seventeen days ; even with the gigantic " bulk " of
General Wilkinson himself.

Mr. Hay says our tone is changed. And how, sir?
We demand a trial now. We demand a fair trial. But
must we not, therefore, protest against a measure, which
is calculated to defeat this object? Certainly, sir. You
are called upon to prejudice the minds of the grand
jury. But, sir, in this interesting case, where liberty and
life themselves are endangered, i trust that some hard-
mouthed precedents, from old black-letter books, will be
found in opposition to this procedure. We have come
here to answer to every charge which may be urged
against us ; we come here to answer in a precedented
and constitutional manner ; but little did we expect that
the court would decide in the first instance, instead of
the grand jury ; that the sentiments of the grand jury



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 5 of 64)