Aaron Burr.

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

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jury must decide upon it as compounded of fact and law.
Two assemblages of men not unlike in appearance, pos-
sibly may be, the one treasonable and the other inno-
cent. If, therefore, the fact exhibited to the court and
jury, should, in the opinion of the court, not amount to
the act of levying war, the court could not stop the prose-
cution ; but must permit the counsel for the United States
to proceed to show the intention of the act, in order to
enable the jury to decide upon the fact, coupled with the
intention.

The consumption of time would probably be nearly the
same, whether the counsel for the prosecution com-
menced with the fact or the intention, provided those
discussions, which respect the admissibility of evidence
would be as much avoided in the one mode as in the
other. The principal importance which, viewing the
question in this light, would seem to attach to its decision,
is the different impressions which the fact itself might
make, if exibited at the commencement or the close of
the prosecution.



OPINION AS TO ORDER OF EVIDENCE. 533

Although human laws punish actions, the human mind
spontaneously attaches guilt to intentions. The same fact,
therefore, maybe viewed very differently, where the mind
is prepared by a course of testimony, calculated to im-
press it with a conviction of the criminal designs of the
accused, and where the fact is stated without such pre-
paration. The overt act may be such as to influence the
opinion, on the testimony afterwards given, respecting
the intention ; and the testimony respecting the intention,
may be such as to influence the opinion on the testimony
which may be afterwards given respecting the overt act.

On the question of consuming time, the argument was
placed in one point of view by the counsel for the defense,
which excited some doubt. The case was supposed of
one witness to the overt act, and a declaration that it
could be proved by no other. The court was asked
whether the counsel would be permitted then to proceed
to examine the intentions of the accused, and to do
worse than waste the time of the court and jury, by ex-
posing, without a possible object, the private views and
intentions of any person whatever ?

Perhaps in such a case the cause might be arrested ;
but th"is does not appear to warrant the inference that it
might be arrested, because the fact proved by the two
witnesses did not appear to the court to amount to the
act of levying war. In the case supposed, the declara-
tion of the law is positive, and a 'point proper to be re-
ferred to the court occurs, which suspends the right of
the jury to consider the subject, and compels them to
bring in a verdict of not guilty. In such a case, no tes-
timony could be relevant, and all testimony ought to be
excluded. Suppose the counsel for the prosecution
should say that he had no testimony to prove the treas-
onable intention: that he believed confidently the object
of the assemblage of men on Blannerhassett's island to
be innocent : that it did not amount to the crime of
levying war ; surely it would be a wanton and useless
waste of time to proceed with the examination of the
overt act. When such a case occurs, it can not be
doubted that a nolle prosequi will be entered, or the jury
be directed with the consent of the attorney, to find a
"verdict of not guilty.



534 TRIAL OF AARON BURR.

It has been truly stated that the crime alleged in the
indictment consists of the fact and of the intention with
which that fact was committed. The testimony disclos-
ing both the fact and the intention must be relevant.
The court finds no express rule stating the order in
which the attorney is to adduce relevant testimony, nor
any case, in- which a court has interfered with the ar-
rangement he has made. No alteration of that arrange-
ment, therefore, will now be directed.

But it is proper to add that the intention which is
considered as relevant in this stage of the inquiry is the
intention which composes a part of the crime, the inten-
tion with which the overt act itself was committed ; not
a general evil disposition, or an intention to commit a
distinct fact. This species of testimony, if admissible
at all, is received as corroborative or confirmatory testi-
mony. It does not itself prove the intention with
which the act was performed, but it renders other testi-
mony probable which goes to that intention. It is ex-
planatory of, or assistant to, that other testimony.
Now it is essentially repugnant to the usages of courts, and
to the declaration of the books by whose authority such
testimony is received, that corroborative or confirmatory
testimony should precede that which it is to corrobo-
rate or confirm. Until the introductory testimony be
given, that which is merely corroborative is not rele -
vant, and of consequence, if objected to, can not be
admitted without violating the best settled rules of
evidence.

This position may be illustrated by a direct application
to the testimony of General Eaton. So far as his testi-
mony relates to the fact charged in the indictment, so
far as it relates to levying war on Blannerhassett's island,
so far as it relates to a design to seize on New Orleans,
or to separate by force the western from the Atlantic
states, it is deemed relevant, and is now admissible ; so
far as it respects other plans to be exeeuted in the Gity
of Washington, or elsewhere, if it indicate a treasonable
design, it is a design to commit a distinct act of treason,
and is, therefore, not relevant to the present indictment.
It can only, by showing a general evil intention, render
it more probable that the intention in the particular case



TESTIMONY OF GENERAL EATON. 535

was evil. It is merely additional or corroborative testi-
mony, and therefore, if admissible at any time, is only
admissible according to rules and principles which the
court must respect, after hearing that which it is to con-
firm.

The counsel will perceive how many questions respect-
ing the relevancy of testimony, the arrangement pro-
posed on the part of the prosecution will most probably
produce. He is, however, at liberty to proceed according
to his own judgment, and the court feels itself bound to
exclude such testimony only as, at the time of its being
offered, does not appear to be relevant.

GENERAL WILLIAM EATON was then called to give his
evidence. He inquired whether he might be permitted
to have a recurrence to- his notes?

Chief Justice. Were they written by yourself?

Mr. Eaton. They were taken and copied by me from
others, which are at my lodgings.

Mr. Burr's counsel objected, unless he had the original
notes.

Mr. Wickham. At what time were they taken ?

Mr. Eaton. At different times.

Mr. Burr. What is the nature of them ? They are
nothing but memoranda taken from notes, which I made
of the conversations between you and myself, at the
times when they passed.

The court decided that they were not admissible.

Mr. Eaton. May I ask one further indulgence from
the court ? I have been long before the public. Much
stricture and some severity have passed upon me. May
I, in stating my evidence, be permitted to make some
explanation about the motives of my own conduct ?

Chief Justice. Perhaps it would be more correct for
the court to decide upon the propriety of the explana-
tion, when the particular case occurs. Some cases may
require it ; and if any objection be made to your expla-
nation, then the court will decide upon it.

Mr. Eaton. Concerning any overt act, which goes to
prove Aaron Burr guilty of treason, I know nothing.

Mr. Hay. I wish you to state to the court and jury,
the different conversations you have had with the prisoner.



536 TRIAL OF AARON BURR.

Mr. Eaton. Concerning certain transactions which
are said to have happened at Blannerhassett's island, or
any agency which Aaron Burr may be supposed to have
had in them, I know nothing. But concerning Mr. Burr's
expression of treasonable intentions, I know much, and
it is to these that my evidence relates.

Mr. Martin. I know not how far the court's opinion
extends.

Chief Justice. It is this : that any proof of intention
formed before the^act itself, if relevant to the act, may
be admitted. One witness may prove the intention at
one time, and another may prove it at another; so as to
prove the continuance of the intention throughout the
whole transaction ; and therefore the proof of very re-
mote intentions may be relevant to this particular act.

Mr. Martin. I trust, that when he speaks of a trea-
sonable intention not applicable to this act the court will
stop him,

Mr. Wickham. If I understand the opinion of the
court correctly, it relates to treason charged to be com-
mitted in Virginia, and evidence of acts out of it is in-
admissible.

Chief Justice. The intention to commit this crime,
to erect an empire in the west, and seize New Orleans,
may be shown by subsequent events to have been con-
tinued ; and facts out of the district may be proved,
after the overt act, as corroborative testimony.

Mr. Eaton. During the winter of 1805-6 (I can not
be positive as to the distinct point of time; yet during
that winter), at the city of Washington, Aaron Burr sig-
nified to me, that he was organizing a military expedi-
tion to be moved against the Spanish provinces, on the
south-western frontiers of the United States ; I under-
stood under the authority of the general government.
From our existing controversies with Spain, and from
the tenor of the president's communications to both
houses of congress, a conclusion was naturally drawn,
that war with that power was inevitable. I had just then
returned from the coast of Africa, and having been for
many years employed on your frontier, or a coast more
barbarous and obscure, I was ignorant of the estimation
in which Mr. Burr was held by his country. The distir-



TESTIMONY OF GENERAL EATON 537

guished rank he held in society, and the strong marks of
confidence which he had received from his fellow-citizens,
did not permit me to doubt of his patriotism. As a mili-
tary character, I had been made acquainted with none
within the United States, under whose direction a sol-
dier might with greater security confide his honor than
Mr. Burr. In case of my country's being involved in a
war, I should have thought it my duty to obey so hon-
orable a call as was proposed to me. Under impressions
like these, I did engage to embark myself in the enter-
prise, and pledged myself to Mr. Burr's confidence. At
several interviews, it appeared to be his intention to con-
vince me, by maps and other documents, of the
feasibility of penetrating to Mexico. At length, from
certain indistinct expressions and innuendoes, I ad-
mitted a suspicion that Mr. Burr had other projects.
He used strong expressions of reproach against the ad-
ministration of the government: accused them of want
of character, want of energy, and want of gratitude. He
seemed desirous of irritating my resentment by dilating
on certain injurious strictures I had received on the floor
of congress, on account of certain transactions on the
coast of Tripoli ; and also on the delays in adjusting my
accounts for advances of money on account of the
United States; and talked of pointing out to me modes
of honorable indemnity. I will not conceal here, that
Mr. Burr had good reasons for supposing me disaffected
towards the government ; I had indeed suffered much,
from delays in adjusting my accounts for cash advanced
to the government, whilst I was consul at Tunis, and
for the expense of supporting the war with Tripoli. I
had but a short time before been compelled ingloriously
to strike the flag of my country, on the ramparts of a
defeated enemy, where it had flown for forty-five days.
I had been compelled to abandon my comrades in war,
on the fields where they had fought our battles. I had
seen cash offered to the half vanquished chief of Tripoli
(as he had himself acknowledged), as the consideration
of pacification.

Mr. WickJiam. By whom ? By our negotiator, when
as yet no exertion had been made by our naval squadron
to coerce that enemy. I had seen the conduct of the



538 TRIAL OF AARON BURR.

author of these blemishes on our then proud national
character, if not commended not censured ; whilst my
own inadequate efforts to support that character were
attempted to be thrown into the shade. To feelings
naturally arising out of circumstances like these, I did
give strong expression. Here I beg leave to observe, in
justice to myself, that however strong those expressions
however harsh the language I employed, they would not
justify the inference, that I was preparing to dip
my sabre in the blood of my countrymen ; much
less of their children, which I believe would have
been the case, had this conspiracy been carried into
effect.

\_Mr.Martin objected to this language.] I listened to
Mr. Burr's mode of indemnity ; and as I had by this
time begun to suspect that the military expedition he
had on foot was unlawful, I permitted him to believe
myself resigned to his influence, that I might understand
the extent and motive of his arrangements. Mr. Burr
now laid open his project of revolutionizing the territory
west of the Alleghany ; establishing an independent em-
pire there; New Orleans to be the capital, and he him-
self to be the chief; organizing a military force on the
waters of the Mississippi, and carrying conquest to Mexico.
After much conversation, which I do not particularly
recollect, respecting the feasibility of the project, as was
natural, I stated impediments to his operations ; such as
the republican habits of the citizens of that country,
their attachment to the present administration of the
government, the want of funds, the opposition he would
experience from the regular army of the United States,
stationed on that frontier; and the resistance to be ex-
pected from Miranda, in case he should succeed in
republicanizing the Mexicans. Mr. Burr appeared. to
have no difficulty in removing these obstacles. He
stated to me, that he had in person (I think the preced-
ing season) made a tour through that country; that he
had secured to his interests and attached to his person
(I do not recollect the exact expression, but the mean-
ing, and I believe, the words were), the most distin-
guished citizens of Tennessee, Kentucky, and the terri-
tory of Orleans ; that he had inexhaustible resources and



TESTIMONY OF GENERAL EATON. 539

funds; that the army of the United States would act
with him ; that it would be reinforced by ten or twelve
thousand men from the above mentioned states and ter-
ritory ; that he had powerful agents in the Spanish terri-
tory, and " as for Miranda," said Mr. Burr, facetiously,
" we must hang Miranda." In the course of several con-
versations on this subject, he proposed to give me a dis-
tinguished command in his army; I understood him to
say the second command. I asked him who would com-
mand in chief. He said, General Wilkinson. I ob-
served that it was singular he should count upon General
Wilkinson ; the distinguished command and high trust
he held under government, as the commander-in-chief
of our army, and as governor of a province, he would
not be apt to put at hazard for any prospect of pre-
carious aggrandizement. Mr. Burr stated that Gene-
ral Wilkinson balanced in the confidence of his coun-
try; that it was doubtful whether he would much
longer retain the distinction and confidence he now
enjoyed ; and that he was prepared to secure to
himself a permanency. I asked Mr. Burr if he knew
General Wilkinson. He said, yes; and echoed the
question. I told him that twelve years ago I was at the
same time a captain in the wing of the legion of the
United States which General Wilkinson commanded, his
acting brigade-major and aid-de-camp ; and that I
thought I knew him well. He asked me what I knew
of General Wilkinson ? I said I knew General Wilkin-
son would act as lieutenant to no' man in existence.
" You are in error," said Mr. Burr ; " Wilkinson will act
as lieutenant to me." From the tenor of much conver-
sation on this subject, I was prevailed on to believe that
the plan of revolution -meditated by Mr. Burr, and com-
municated to me, had been concerted with General Wil-
kinson, and would have his co-operation ; for Mr. Burr
repeatedly and very confidently expressed his belief
that the influence of General Wilkinson with his army,
the promise of double pay and rations, the ambition of
his officers, and the prospect of plunder and military
achievements, would bring the army generally into the
measure. I pass over here a conversation which took
place between Mr. Burr and myself, respecting a central



540 TRIAL OF AARON BURR.

revolution, as it is decided to be irrelevant by the opin-
ion of the bench.

Mr. Hay. You allude to a revolution for overthrowing
the government at Washington, and of revolutionizing
the eastern states.

I was passing over that to come down to the period
when I supposed he had relinquished that design, and
adhered to the project of revolutionizing the west.

Mr. Wickham. What project do you mean? A
central general revolution. I was thoroughly convinced
myself, that such a project was already so far organized
as to be dangerous, and that it would require an effort to
suppress it. For in addition to positive assurances that
Mr. Burr had of assistance and co-operation, he said that
the vast extent of territory of the United States, west of
the Alleghany mountains, which offered to adventurers
with a view on the mines of Mexico, would bring volun-
teers to this standard from all quarters of the union. The
situation which these communications, and the impressions
they made upon me, placed me in, was peculiarly deli-
cate. I had no overt act to produce against Mr. Burr.
He had given me nothing upon paper; nor did I know
of any person in the vicinity, who had received similar
communications, and whose testimony might support
mine. He had mentioned to me no person as principally
and decidedly engaged with him, but General Wilkinson ;
a Mr. Alston, who, I afterwards learned, was his son-in-
law; and a Mr. Ephraim Kibby, who I learnt was late a
captain of rangers in Wayne's army. Of General Wilkin-
son, Burr said much, as I have stated; of Mr. Alston,
very little, but enough to satisfy me that he was engaged
in the project ; and of Kibby, he said that he was bri-
gade major in the vicinity of Cincinnati (whether Cincin-
nati in Ohio or in Kentucky, I know not), who had much
influence with the militia, and had already engaged the
majority of the brigade to which he belonged, who were
ready to march at Mr. Burr's signal. Mr. Burr talked of
this revolution as a matter of right, inherent in the peo-
ple, and constitutional; a revolution which would rather
be advantageous than detrimental to the Atlantic states ;
a revolution which must eventually take place; and for
the operation of which, the present crisis was peculiarly



TESTIMONY OF GENERAL EATON. 541

favorable. He said there was no energy to be dreaded
in the general government, and his conversations denoted
A confidence that his arrangements were so well made,
that he should meet with no opposition at New Orleans ;
for the army and chief citizens of that place were now
ready to receive him. On the solitary ground upon
which I stood, I was at a loss how to conduct myself,
though at no loss as respected my duty. I durst not
place my lonely testimony in the balance against the
weight of Mr. Burr's character ; for by turning the tables
upon me, which I thought any man capable of such a
project was very capable of doing, I should sink under
the weight. I resolved therefore with myself, to obtain
the removal of Mr. Burr from this country, in a way hon-
orable to him ; and on this I did consult him, without
his knowing my motive. Accordingly, I waited on the
president of the United States, and after a desultory con-
versation, in which I aimed to draw his view to the west-
ward, I took the liberty of suggesting to the president,
that I thought Mr. Burr ought to be removed from the
country, because I considered him dangerous in it. The
president asked where we should send him ? Other places
might have been mentioned, but I believe that Paris,
London, and Madrid were the places which were par-
ticularly named. The president, without positive ex-
pression (in such a matter of delicacy), signified that the
trust was too important, and expressed something like a
doubt about the integrity of Mr. Burr. I frankly told
the president that perhaps no person had stronger grounds
to suspect that integrity than I had; but that I believed
his pride of ambition had so predominated over his other
passions, that when placed on an eminence, and put on
his honor, a respect to himself would secure his fidelity.
I perceived that the subject was disagreeable to the
president, and to bring him to my point in the shortest
mode, and at the same time point to Ae danger, I said
to him that I expected that we should in eighteen months
have an insurrection, if not a revolution, on the waters
of the Mississippi. The president said he had too much
confidence in the information, the integrity, and attach-
ment to the union of the citizens of that country, to ad-
mit any apprehensions of that kind. The circumstance



542 TRIAL OF AARON BURR.

of no interrogatories being made to me, I thought im-
posed silence upon meat that time and place. Here, sir,
I beg indulgence to declare my motives for recommending
that gentleman to a foreign mission at that time ; and in
the solemnity with which I stand here, I declare that Mr.
Burr was neutral in my feelings; that it was through no
attachment to him that I made that suggestion, but to
avert a great national calamity which I saw approaching ;
to arrest a tempest which seemed lowering in the west ;
and to divert into a channel of usefulness those consum-
mate talents which were to "mount the whirlwind and
direct the storm." These, and these only, were my rea-
sons for making that recommendation.

About the time of 'my having waited on the president,
or a little before (I can not, however, be positive whether
before or after), I determined at all events to have some
evidence of the integrity of my intentions, and to fortify
myself by the advice of two gentlemen, members of the
house of representatives, whose friendship and confidence
I had the honor long to retain, and in whose wisdom and
integrity I had the utmost faith and reliance. I am at
liberty to give their names, if required. 1 do not dis-
tinctly recollect, but I believe that I had a conversa-
tion with a senator on the subject. I developed to them
all Mr. Burr's plans. They did not seem much alarmed.

Mr, Martin objected to the witness stating any of
the observations of other persons to himself.

After some desultory conversation between the coun-
sel on both sides, the chief justice said that though
more time was wasted by stopping the witness, than by
letting him tell his story in his own way, yet if it were
required, he must be stopped when he gave improper
testimony. He then told the witness, " You are at
liberty to vindicate yourself, but declarations of other
gentlemen are not to be mentioned, because that certain-
ly would be improper."

Mr. Eaton. I did ask indulgence of the court to
make such explanations, because perversions of my con-
duct were before the public: but I waive this indul-
gence, contented with meeting these perversions at
some other time and place.

Chief Justice. You have used that indulgence.



TESTIMONY OF GENERAL EATON. 543

Mr. Eaton. Little more passed between Mr. Burr
and myself, relevant to this inquiry, while I remained at
Washington ; though I could perceive symptoms of dis-
trust in him towards me, he was solicitous to engage me
in his western plans. I returned to Massachusetts, to
my own concerns, and thought no more of Mr. Burr, or
his projects, or revolutions until, in October last, a letter
was put into my hands at Brumfield, from Mr. Belknap,
of Marietta, to T. E. Danielson, of Brumfield, stating
that Mr. Burr had contracted for boats which were
building on the Ohio.

Mr. Burr. Have you that letter?

Mr. Eaton. No.

Mr. Burr. It is improper, then, to state it.

Mr. Hay. It is immaterial. Mr. Belknap is here.

Mr. Eaton. As to letters, I have had no correspon-
dence with Mr. Burr. I was about to state, that I had
made a communication, through Mr. Granger, to the
president of the United States, stating the views of Mr.



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