Aaron Burr.

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

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dicted, when in truth no act could be proved, when it
did not and could not appear that the man supposed to
have been murdered was actually dead! This would be
a fruitless waste of time. If there be no evidence that
the man is dead, there ought to be no inquiry into the


design inducing the commission of the overt act, the act
of killing. If the death be proved, then the intention
and other circumstances are to be examined, and the
jury must decide whether he be guilty or not. This is
the natural and legal order of proceeding in criminal
prosecutions. Hardy's case confirms and establishes the
propriety of this mode of proceeding. The first in-
quiry on that trial was respecting the act charged in the

Thus, if A. were indicted for killing B. would the
legal order be to prove, in the first instance, that long
and frequent animosities had existed between them ?
The counsel for the prosecution must first prove that B.
has been killed by somebody. If there be any doubt as
to the person who killed him, it must be proved who did
kill him. If it be proved that A. killed B., then, and not
till then, more evidence is necessary to explain the mo-
tives and circumstances of the killing ; because the law
presumes prima facie, that a man who kills another,
does it with malice prepense, and, therefore, he must
take off by his proof this presumption of the law. In
the case of larceny, as, for instance, for horse stealing,
you prove the horse to have been taken from the owner,
and found in possession of the party accused. After prov-
ing the principal fact, you go into evidence of the inten-
tion with which the horse was taken. Does the public
prosecutor go into proof of the felonious intention before
proving that the horse has been taken ? So in the case of
burglary, is it the natural order of testimony to prove
that the accused intended to break and enter into the
house, in the night time, to steal or to commit any other
felony? Is it not the most natural order, to prove first,
that he did actually break and enter the house, and then,
by evidence, to show that he entered with no other view
than to commit a felony. So on a trial for treason, for
importing false or base foreign coin, knowing it to be
such, does the prosecutor first call witnessess to prove,
that the prisoner knew the coin to be base ? Does he
not first prove the importation ? Would it not be pre-
posterous to go into proof of his knowledge of its base-
ness, without proving that he imported it ? The same
remark applies to a prosecution for passing false orcoun-


terfeit coin, knowing it to be false or counterfeit. Would
not the prosecutor first prove that he passed it, and then
show by testimony, that he knew it to be base when he
passed it? In both cases, he first proves the principal
fact, without which all other testimony would be useless ;
and then proves the circumstances which show that the
prisoner must have known the money to be base when
he imported or passed it. They charge us with having
committed treason in "levying war" against the United
States. This charge is too vague, and must be sup-
ported by full testimony according to the well known
principles of the law. Here let me mention, that the
question, whether any other act committed at a time and
place different from those stated in the indictment can
be introduced in evidence on this trial, is a distinct ques-
tion from that now before the court ; which is merely,
what is the proper order of introducing the evidence in
support of the indictment ?

Let me advert to the case of Hardy. It was an in-
dictment for compassing the death of the king, which as
I have already mentioned, is distinguishable from all
other cases in this, that the intention constitutes the
crime. In that case, " what is the natural and lucid
order " of evidence, is expressly laid down. There were
several persons prosecuted in the same indictment. It
charged them, " First, with a conspiracy to compass or
effect the king's death. Secondly, with endeavoring to
effect that object, by means of an insurrection, or incit-
ing the insurrection with that settled design." The
court determined that the legal order of proceeding and
admitting evidence, after having proved the existence of
the conspiracy, was to prove the connection of the per-
,son accused with the conspirators ; and then to charge
him with the acts of the conspirators ; that after proving
his connection with them, he was liable to be charged'
with any of their acts. In that case, the intention con-
stituted the crime, and the* connection between the con-
spirators was first proved, before the acts of one were
admitted to be given in evidence against another. But
this mode of proceeding is only admitted in the case of
a conspiracy, or an indictment for imagining and com-
passing the king's death. But in an indictment " levy-



ing war," the acts of one person have never been ad-
mitted to be given in evidence against another; the
overt acts must be ptoved against every individual ac-
cused. This distinction has been established by a series
of determinations of the most able and correct judges.
But if the acts of one can not be charged or given in
evidence against another, much less can his words or
declarations. Sir, the declarations of the party accused
are not legal evidence against him. Here they have
brought witnessess from remote parts of the union, to
prove the declarations of Mr. Burr. I contend, that till
an act of war shall have been proved, these declarations
are utterly inadmissible against him. The gentlemen
admit themselves that they are improper, unless as corro-
borative evidence : because the constitution requires that
the confession of the person accused shall be in open
court, before a conviction shall follow. I am convinced,
that all the declarations in the world can only be re-
ceived as corroborative evidence of facts proved within
the district. I do not wish to enlarge the question, or to
waste the time of the court in discussing questions touch-
ing acts committed out of the district, or declarations
explanatory of them. If any such evidence should be
offered in the progress of this investigation, the court
will of course stop it.

I agreed with the attorney of the United States, in
expressing my approbation of some parts of the opinion
of Judge Iredell, on the trial of Fries, which applied im-
mediately to the case before the court. I shall agree,
with heart and hand, that no words or declaration of a
person accused of this crime, ought to be admitted in
evidence, unless they are preceded by proof or facts.
One part of his opinion has an immediate application to
the question now before the court, where he says, " that*
after the overt act laid in the district is proved by two
witnesses, it is proper to go into evidence to show the
course of the prisoner's conduct at other places, and the
purpose for which he went to that place where the trea-
son is laid, and if he went with a treasonable design, then
the act of treason is conclusive." But still this evi-
dence is improper, till after the overt act is proved.
From another part of the same opinion, which imme-


diately follows, in pages 171, 172, of that trial, he says,
" We now come to the confession of the prisoner, volun-
tarily made before Judge Peters. Here is a point of law
relied on by the prisoner's counsel, that no man should
be convicted of treason, but on the evidence of two wit-
nesses, or upon confession in open court. This is the
provision in England as well as here, and the meaning
is, that no confession of the prisoner, independent of
two witnesses, or without the facts have been estab-
lished by two witnesses, should be sufficient to convict
him ; but if two witnesses have proved a fact, the
confession of the party may be received by way of
confirmation, of what has before been sworn to. In
former days, in England, it was allowed, that con-
fession out of court, and the proof of the witnesses
should be sufficient to warrant a conviction, but hap-
pily our constitution would not admit it, if an hundred
would swear to it ;. that danger is wisely avoided. Evi-
dence may sometimes be given, which may be doubtful.
and want corroboration." " But if the confession of the
prisoner go to confirm the evidence, if sworn to by two
witnesses at least, it may be received:" He then adds,
what seems to be decisive on this point: ''but unless it
do go to corroborate other testimony, I do not think it
admissible." This shows clearly, that the testimony
now offered, is not admissible as no act has been yet
proved ; and that his conduct at other places, and the
intention with which he went to the place where the
imputed treason is laid, is not proper to be adduced in
evidence. " Confessions out of court were formerly ad-
mitted ;" ''but that danger is now wisely avoided." I
am sure, that if we were to go into an inquiry as to the
admissibility of this evidence, the plain words of the
constitution ought to satisfy us at once, that " no per-
son shall be convicted of treason, unless on the testimony
of two witnesses to the same overt act, or on confession
in open court." No language can be more explicit. An
insuperable objection to this kind of evidence, is, that
acts committed out of the district might be introduced
by it. We have said that General Eaton's testimony
does not relate to any acts committed anywhere, but to
mere declarations out of the district. We sincerely


wish to avoid any anticipation of his evidence but, since
gentlemen will impose it on us, and they admit it to be
similar to his ex parte deposition which has been al-
ready published, it is our duty to insist that the attorney
for the United States shall produce no evidence of
declarations or corroborative testimony of any kind, till
he shall first prove the material facts which admit of
this confirmation. It is neither reasonable nor constitu-
tional, that acts out of the district should be given in
evidence. It might be a mere waste of the time of the
court, jury, counsel and witnesses, to enter into a long
and elaborate examination and discussion, which would
be totally irrelevant, if no act could be proved. As
the relevancy of all other testimony depends on the
proof of the act, every principle of reason and law re-
quires, that it should be first used as the foundation of
the rest.

On the trial of Fries, the first witness who was sworn
was interrogated as to the act of "levying war;"
whether he had been at Bethlehem at the time laid in
the indictment? and whether he had seen the acts com-
mitted? that is, the rescue of several persons lawfully in
the custody of the marshal, and other acts of violence
connected with the rescue. Every other witness was
interrogated in like manner; first, as to the acts com-
mitted; and having established the fact that the accused
had committed the overt act, then other evidence of a
corroborative nature was introduced. In p. 37, the
examination of Colonel Nichols the marshal is stated,
and he particularly describes* the acts committed by the
prisoner. The testimony now offered would be at
present immaterial, because the act of war to which it
applies is not proved.

On this point, I beg leave to refer to the sentiments
of Judge Foster, in his Crown Law, p. 246, which have
been commented on already. After stating that on the
trial of Vaugham for treason, for adhearing to the king's
enemies, and cruising in a vessel called the " Loyal Clen-
carty," the court rejected evidence to prove that he had
some time before cut away the custom-house barge and
had gone a cruising in her: he says, that "the rule of
rejecting all manner of evidence, in criminal prose-


cution, that is foreign to the point in issue, is founded
on sound sense and common justice. For no man is
bound at the peril of life or liberty ; fortune or reputa-
tion, to answer at once and unprepared, for every action
of his life. Few even of the best of men, would choose
to be put to it." Judge Patterson, on an occasion very
much like this, speaks with peculiar force and propriety.
On the trial of William Smith, when the defendant's
counsel moved to postpone the trial on account of the
absence of some witnesses said to be material, " The
evidence (says he) which is offered to a court must be
pertiment to the issue, or in some proper manner con-
nected with it. It must relate and be applied to the
particular fact or charge in controversy, so as to consti-
tute a legal ground to support, or a legal ground to
resist the prosecution. For it would be an endless task,
and create inextricable confusion, if parties were suf-
fered to give in evidence to the jury, whatever self-love,
or prejudice, or whim, or a wild imagination might sug-
gest. This is an idea too extravagant to be entertained
by reflecting and candid men ; as it would, if carried
into practice, quickly prostrate property, civil liberty,
and good government. Law would become a labyrinth,
a bottomless pit ; and courts would be perverted from
their original design, and turned into instruments of in-
justice and oppression. A line must be drawn a line
has been drawn on such occasions which it becomes the
duty of judges to pursue. If there be no line, anything
and everything may be given in evidence. Where shall
we stop? What is the rule which we find to be laid
down for our guidance? The evidence must be perti-
nent' to the issue; the witnesses must be material. If
the evidence be not pertinent, nor the witnesses ma-
terial, the court ought not to receive either."

A reason given by other respectable authors, for
this doctrine is, that the jury may be embarrassed
and perplexed by evidence not pertinent to the issue:
and that the accused* would be unapprised and with-
out notice of the charges to be thus exhibited
against him, and consequently unprepared to meet the
evidence which he is to resist. He can not, as Foster
says, be prepared to answer at once for every action of


his life. This objection applies most forcibly in this
case, where the complicated evidence of one hundred and
thirty-five witnesses is to be introduced and considered.
Notwithstanding the prejudices and alarm which have
been excited in this country, are you sure that they were
not all without any cause to justify them ? If Mr. Burr's
plans were most meritorious, predicated on principles of
an honorable war, and only to be carried on in the event
of his country being engaged in it, and with a view to
the emancipation of millions who are now in bondage,
with a design to take the bonds of slavery off many mil-
lions, he would have merited the applause of the friends
of liberty and of posterity. This I contend was the
case; but his friends may now pray that he may not
meet the fate that Washington himself would have met,
if the revolution had not been established. If you
should permit the witnesses to go into complicated tales
of schemes and plots of severing the union, resting
solely on the imputed intentions of the accused (and yet
the result of a long and elaborate inquiry would be that
there was no act of war), it would be worse than a mere
waste of time, and would expose, without any possible
useful object, the private views and intentions of the
accused ; prejudices would be increased ; the intention
would be taken for the deed, under the influence of im-
pressions not to be resisted when the act itself was in-
complete. The jury ought not to be troubled with evi-
dence which is wholly immaterial till the overt act be
proved. I will ask, whether on principles of common
sense any objection can be urged against the production
of the evidence which we call for if it can be produced?
What do we ask? Do we ask anything that will em-
barrass the prosecution ? Not the slightest inconven-
ience can arise from their producing proof of the act,
if there ever were such an act. The , witnesses who
know the act can be called on, and their testimony will
be distinct from all the other evidence. What will be
their alternative after a solemn argument ? If we sus-
tain our position that the order of evidence is part of
the law of evidence, and that before the intention the
act itself must be established, is it their purpose to go
into evidence of the intention before the act, or know-


ing it not to exist, because it is the wish of the court
that it should be otherwise ? I can not suppose this to
be their purpose; I have too good an opinion of the
gentlemen, notwithstanding appearances, to suppose that
they intend to do so. But if it be so, the court will de- '
cide without anticipating such conduct ; -expecting that
if the act exist they will prove it, or if not, that they
will yield as they ought.

The principles of law and of convenience, and the
natural reason of every man, all concur in requiring that
the first part of the evidence to be proved should be the
act. If it be the first proved, no inconvenience will re-
sult, from it. The rules of law should be general. If
this principle of reason and convenience be departed
from in this instance, it may be in every other; and the
most manifest and dangerous inconveniences in other
cases (if not in this) must result, if the court will per-
mit gentlemen to indulge what Judge Patterson calls
" self-love, prejudice, or whim, or the suggestions of a
wild imagination."

I will not omit another authority, which may not be
directly applicable to the distinction now before the
court; but if applicable, it maintains the same principle
in directing the order of the evidence. 1st East's Crown
Law p. 96-97 : " In this, as in other cases, founded on
conspiracy or agreement among several, to act in concert
together for a particular end, must be established by
proof, before any evidence can be given of the acts of
any person, not in the presence of the prisoner, and this
must be generally done by evidence of the party's own
acts, and can not be collected from the acts of others, in-
dependent of his own." "When the connection between
the parties is once established, of which the court must
in the first instance judge, previous to the admission of
any consequential evidence to affect the prisoner by the
acts of others, to which he was not a party or privy,
then whatever is done in pursuance of that conspiracy,
by one of the conspirators, though unknown perhaps to
the rest at the time, is to be considered as the act of all."
This at least ascertains that the order of evidence is
part of the law of evidence ; and that facts may be im-
portant and material in one part of a prosecution, which



in another may be entirely inadmissible. As in the case
of a conspiracy, before you can introduce any testimony
against a prisoner, of the acts of any other of the con-
spirators, you must prove an association between them ;
so in this case, before you are permitted to introduce
evidence of the intention being treasonable, you must
prove an act of war. Before you speak of a treasonable
intention, you must go on to prove the act which makes
it so. The overt act must be proved by direct evidence,
and confirmed by confirmatory evidence.

Mr. Martin referred to 3 Gilbert, 8 1 6, and to several
other authorities, to show that when " levying war " is the
charge laid in an indictment for treason, the rule of pro-
ceeding is the same as in murder, larceny, and burglary,
where the evidence must rise out of the facts first proved,
if not admitted. He again referred to the case of
the King v. Vaughan, who was indicted for treason
in adhering to the king's enemies, by cruising against
his subjects, in the vessel called the " Loyal Clen-
carty," and whose acts, Mr. Martin said, were proved be-
fore any evidence of any other kind ; he also cited the
case of Demaree and Purchase, who were indicted for
treason, in pulling down meeting-houses, 8 State Trials,
219, and the case of the King v. Messenger and others,
for pulling down bawdy-houses, 2 State Trials, 585. The
first proof adduced in both cases, was the act of pulling
down the houses; in the former case, the overt act was
beginning to pull down all conventicles or meeting-houses ;
and in the latter, beginning to pull down and destroy all
bawdy-houses. The universality of the intention con-
stituted this crime, which is a species of treason in "levy-
ing war." The design to pull down and destroy all con-
venticles and all bawdy-houses, evidenced by the open
deed of beginning to pull down and destroy, was
made treason by the statute ; and although there
could be no treason without this universal intention, yet
no proof of their intention, or of their declarations on
the subject, was ever attempted to be introduced, till the
fact of beginning to pull down and destroy was first es-
tablished. Mr. Martin insisted, that nothing was more
consonant to common sense, than to prove the act before
the 4< quo animo ;" that until the overt act were estab-


lished, and the time and place of its commission were
fixed, it was impossible for the court or jury to deter-
mine with correctness and propriety, the " quo animo,"
or design wherewith it had been done. He therefore
hoped that the prosecutor would not be permitted to
proceed further till he proved some overt act.

TUESDAY, August 18, 1807.

The Chief Justice pronounced the following opinion,
on the question last argued, relative to the order of evi-

Although this is precisely the same question relative
to the order of evidence, which was decided by this court,
on the motion to commit, yet it is now presented under
somewhat different circumstances, and may, therefore,
not be considered as determined by the former decision.
At that time no indictment was found, no pleadings ex-
isted, and there was no standard by which the court could
determine the relevancy of the testimony offered, until
the fact to which it was to apply should be disclosed.
There is now an indictment specifying the charge which
is to be proved on the part of the prosecution ; there is
an issue made up which presents a point to which all the
testimony must apply, and consequently it is in the pow-
er of the court to determine, with some accuracy, on the
relevancy of the testimony which may be offered.

It is contended in support of the motion which has
been made, that, according to the regular order of evi-
dence and the usage of courts, the existence of the fact
on which the charge depends ought to be shown, before
any testimony explanatory or confirmatory of that fact
can be received. Against the motion, it is contended
that the crime alleged in the indictment consists of two
parts, the fact and the intention ; that it is in the discre-
tion of the attorney for the United States, first to adduce
the one or the other ; and that no instance has ever oc-
curred of the interference of a court with that arrange-
ment which he has thought proper to make.

As is not unfrequent, the argument on both sides ap-
pears to be, in many respects, correct. It is the most
useful and appears to be the natural order of testimony


to show, first, the existence of the fact respecting which
the inquiry is to be made. It is unquestionably attended
with this advantage, there is a fixed and certain object
to which the mind applies with precision all the testimony
which may be received, and the court can decide with less
difficulty on the relevancy of all the testimony which
may be offered ; but this arrangement is not clearly shown,
to be established by any fixed rule of evidence, and no
case has been adduced in which it has been forced by the
court on the counsel for the prosecution.

On one side it has been contended that by requiring
the exhibition of the fact in the first instance, a great
deal of time may be saved, since there may be a total
failure of proof with respect to the fact : and this argu-
ment has been answered by observing, that should there
even be such failure, they could not interpose nor arrest
the progress of the cause, but must permit the counsel
for the prosecution to proceed with that testimony which
is now offered.

Levying of war is a fact which must be decided by the
jury. The court may give general instructions on this,
as on every other question brought before them, but the

Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 50 of 64)