Aaron Burr.

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

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tuted authorities, but that he would not be stopped by a
mob.

Mr. Wirt. At the time he said so was the legislature
of Ohio understood to be in session with closed doors?
It was; and I saw the militia of Wood county assembled
the next day or the day after.

Mr. Burr. Was there not some danger of being
stopped by the ice if they had not gone off as soon as
they did? I thought so ; and that it was also hazardous
for Mrs. Blannerhassett to go. Tyler was detained two
days by Blannerhassett.

Mr. Mac Rae. Did Blannerhassett that night commu-
nicate his apprehensions to you? He did not.

Mr. Burr. Were Tyler's party disorderly? They were
not.

Did they do any mischief? Were they guilty of any
misconduct ? None.

THURSDAY, August 2oth, 1807.

The court met at the usual hour, when a desultory dis-
cussion took place, in which

Mr. Burr and his counsel insisted that the counsel for
the prosecution should produce all the evidence which
they had, relative to the overt act, before they attempted
to offer any collateral testimony; and again reminded
them, that as soon as all their testimony on that point
was introduced, they had certain propositions to submit
to the court.

The counsel for the prosecution said that they had
some more evidence to introduce on this point, and

SIMEON POOLE was then sworn.

Mr. Hay. Be so obliging as to say what you



TESTIMONY OF SIMEON POOLE. 591

know with respect to the men on Blannerhassett's
island.

Simeon Poole. I never was on the island at that time ;
but was opposite to it. I saw boats and men there, if I
mistake not, on the loth of December. I arrived oppo-
site the island about dusk, at the distance of about one
hundred and fifty or two hundred yards from it. I do
not know how many boats there were. I saw people
walking about in the evening; and in the course of the
night they kindled a fire and I saw some persons by the
light that appeared to be armed, as if they were sen-
tinels.

Mr. Hay. Why did you think they were so? I don't
know that they were ; but they appeared so to my view.
I don't know positively what they were, but they appeared
to have guns, and looked like sentinels. I did not go
over that night, nor did I offer to go. Boats were pass-
ing and repassing during the night from the island to
the mainland.

To whom did these boats belong? I do not know, but
I presume to the island. There were large boats at the
landing, but these were small boats. I did not speak to
them. I stood as much undiscovered as possible, as I
was authorized by the governor of Ohio to apprehend
Blannerhassett ; I went for that purpose.

Do you recollect any indications of arrangements
about a watch-word? Yes. In the course of the
evening I saw that some boats crossed ; and when a par-
ticular word was given, I observed that there were some
that did not cross. I heard others that were hailed across
and a word given. They would hail for a boat. The
people on the island would ask, " What boat ?" If the
answer was, I's boat, the boat immediately put off.

Mr. Parker. On what occasion was the watch-word
used? When the people on the Ohio side wanted to go
across, they would hail or call for a boat ; the people on
the island would ask, " What boat ?" and if the answer
were I's boat, the boat would immediately put off.

Mr. Burr. Till what hour did you stay out that night ?
I imagine it was as late as ten o'clock.

Was it not cold enough to render a fire pleasant ? -It
was.



592 TRIAL OF AARON BURR.

Is it not usual for boats to build fires on the bank, when
it is so cold ? It is. There. seemed to be a considerable
number of men on the island that evening, going up and
down, to and from the house. The witness further ob-
served, that lanterns were passing during the night, be-
tween the house and boats, as if there were business be-
tween them; that he could not say whether the persons
whom he had called sentinels were not merely loitering
around the fire ; that he thought it likely, that if he too
had used the watch-word, the boats would have put off for
him ; that he lived on the Ohio side ; that he could not
distinguish well, but he apprehended that some of them
had guns ; but most of the people were without guns.

Do you not commonly hail boats, when you wish
to cross the river ? It is not common to give
a word. There were several boats hailed by people
who did not use that word ; and these people were not
sent for ; but there was no instance where the boat was
not sent for the party hailing where that watch-word was
used.

MAURICE P. BELKNAP was then sworn.

Mr. Hay. Will you tell us, sir, what you saw on the
island ?

Mr. Belknap. On the evening of the loth of Decem-
ber, I was at the island of Mr. Blannerhass,ett. I arrived
there between eight and nine o'clock in the evening. I
hailed a boat, and they asked my name. Having given
it, a skiff was immediately sent over with two of Blan-
nerhassett's servants. Having crossed, I met with Mr.
Woodbridge, who returned to the house with me. When
I went into the house, I observed in the room, when I
first entered, a number of men, who, from the promiscu-
ous view I had of them, might have been about twenty.

Mr. Hay. What were they doing ? The two or three
I noticed near the door had rifles, and appeared to be
cleaning them. These were all the arms I saw ; for I
merely passed through the room where they were. Near
the place where I landed, there appeared to be two or
three boats, and people about them. It was a dark even-
ing, and the lights in the boats was the only circumstance
which made me notice them.



TESTIMONY OF EDMUND P. DANA. 593

Mr. Burr. Did you give a watch-word when they
brought you over ? I gave no watch-word, I only gave
my name ; but they brought me over.

i

EDMUND P. DANA was next sworn.

Mr. Dana. I never saw Mr. Burr on the island.

Mr. Hay. Will you state what you know about their
number and arms? On the evening of the loth of De-
cember, I understood that the boats were to start with
Comfort Tyler and his men down the river. Two other
young men and myself were determined to cross over
from Belpre, where I live, to the island. We went down
to the landing opposite the island about dusk, took a
skiff and landed at the upper part of the landing. We then
went up to the house. Tyler's boats lay below our own^
about seven or eight rods. I heard some person talking
on board, but it was dark and I could not distinguish
any one. We went into the hall, a large room, where
there were a number of men. I remained but a short
time and did not count them. I can not say how many
there were, but I should judge there were about fifteen
or sixteen. One of them was running some bullets ; and
there was nothing but hub-bub and confusion about the
large fire. I was then introduced into a chamber where
there were Colonel Tyler, Blannerhassett, Mr. Smith of
New York as they said, and three or four other gentle-
men. I was introduced to Mr. Smith and Doctor M'Cas-
sley (or M'Castle) who had his lady, if I mistake not,
there. I had been introduced to Colonel Tyler the day
before.

Mr. Randolph. Were you a perfect stranger to the
people in the hall ? I was.

Was there any alarm on your going in ?^ They did not
appear to be alarmed.

Mr. Coleman (one of the jury) addressed the court. Is
it proper to ask any questions about the conversations
which took place with those gentlemen ?

Cliief Justice. It is left to the consent of the ac-
cused.

Mr. Burr. If any of the jury think proper, I have no
objection. [The inquiry was not pressed.]

Before the examination of Mr. Belknap and Mr. Dana,
i.-38



594 TRIAL OF AARON BURR.

an interesting and animated discussion took place at the
bar.

Mr. Burr and his counsel objected strongly to the in-
troduction of collateral evidence, and insisted strenuous-
ly that the counsel for the prosecution should adduce,
without further delay, all the testimony which they had
relating to any overt acts alleged to have been committed ;
that they had already submitted to too much irrelevant
evidence; that it could not be denied that Mr. Burr was
at a great distance, in the state of Kentucky, when these
acts were alleged to have been committed on Blanner-
hassett's island ; and that the relevancy or irrelevancy of
the collateral proof offered, depended entirely on the ex-
istence of those acts. They insisted, that notwithstand-
ing the numerous efforts and prejudices which had been so
artfully and zealously excited, and so industriously spread
throughout the country, there had not been any act of
war, tumult or insurrection, nor even the semblance of
an overt act ; that they had a right to have the opinion
of the court on the subject, and would insist on exercis-
ing it as soon as the testimony relating to the overt acts
of this pretended war was all introduced ; and if gentle-
men had any more such, they insisted on its immediate
production, or that they would proceed to make their
intended application to the court.

The counsel for the prosecution opposed this mode of
proceeding. They contended that it was unusual, irreg-
ular and improper; that the whole evidence should be
submitted to the jury, whose province it was to decide
whether, according to the exposition of the law by
the court, there had been war or not ; that the counsel
for the accused might, when the whole should have been
laid before the court, move the court to instruct the jury
on the law, or make such other motions or propositions
as they might deem proper ; that to decide whether
overt acts had been committed or not, was an inquiry of
fact, not of law ; that though the court had a right to
expound the law, and explain what in law constituted an
overt act, yet it could not stop the prosecution, and say to
the jury that no overt act was committed ; that it was evi-
dent that the object of attempting thus to arrest the in-
quiry, was to prevent the public from seeing and knowing



OBJECTION TO COLLATERAL EVIDENCE.^

what had been done and which ought to be known, that the
question was not, where the accused was when the trea-
son was committed, but whether he procured it or had a
part in it? and that as the objection of the accused to
the evidence offered by the prosecution was irregular and
improper, it ought to be disregarded by the court.

It was admitted that Mr. Burr was in Kentucky at
the time when the acts charged in the indictment were
committed. It was stated that several witnesses were
present ready to prove it.

After some further desultory remarks at the bar,

The Chief Justice said that there was no doubt that
the court must hear the objections to the admissibility
of the evidence ; that it was a right, and gentlemen
might insist on it ; but he suggested the propriety of
postponing their motion.

Mr. Hay admitted their right to object to the intro-
duction of evidence ; but contended that the course they
now adopted was irregular. He stated that they had
some other witnesses to examine on the same point,
whom they wished to introduce.

As soon as Messrs. Belknap and Dana were examined,

Mr. Botts moved the court to direct the marshal to
make payment daily of their allowance to about twenty
witnesses, summoned for the accused, most of \vhom
were so poor that they could not subsist without it. He
had hoped the marshal would have paid them without
this application. Mr. Burr thought them material, and
summoned them from the best information he could ob-
tain ; and when the United States even imprisoned wk-
nesses to compel their attendance, those of the accused
ought at least to be supplied with the means of subsist-
ence.

The marshal said that as the number of witnesses was
so great, many of them were said to know nothing
of the subject in controversy, he was cautioned by
the attorney for the United States, not to pay them
till their materiality was ascertained or till the court or-
dered him.

Mr. Hay said that the expenses were so enormous
that they would be felt by the national treasury though
it was full. This justified the caution alluded to; and



596 TRIAL OF AARON BURR.

the laws c6ntemplat.ed to pay the witnesses as soon as
they gave their evidence.

Mr. Burr said that when the attorney cautioned the
marshal, it was supposed that he had summoned between
two and three hundred witnesses, whereas the truth was
that they did not exceed twenty ; that they were mate-
rial that some of hem were summoned to repel what
might be said by the witnesses for the United States ;
that the United States had many advantages in com-
manding the attendance of their witnesses, which he had
not ; that he would not acquiesce in the establishment
of a principle that might prove injurious to others ; that
the witnesses ought to be paid, and he hoped that there
would be no more difficulty made on the subject.

After some more desultory observations, as the wit-
nesses were stated and considered to be material, the
court directed the payment to made by the marshal.

Mr. Wickham then renewed the subject of objecting
to the evidence; and again urged the gentlemen who
prosecuted, to adduce, if they could, anymore testimony
in support of what fhey deemed the overt acts.

Mr. Hay objected to their course of proceeding, but
added that he had only one or two more witnesses on
that point, who were then absent, and if gentlemen were
determined to make their motion they might proceed.

Mr. Wickham then addressed the court.

May it please the court : The counsel for the prosecu-
tion having gone through their evidence relating directly
to the overt act charged in the indictment, and being about
to introduce collateral testimony of acts done beyond
the limits of the jurisdiction of this court, and it not only
appearing from the proofs, but being distinctly admitted
that the accused, at the period when war is said to have
been levied against the United States, was hundreds of
miles distant from the scene of action, it becomes the
duty of his counsel to object to the introduction of any
such testimony ; as, according to our view of the law on
this subject, it is wholly irrelevant and inadmissible.

It is not without reluctance that this measure is resort -

'ed to. Our client is willing and desirous, that at a

proper time, and on a fit occas'ion, the real nature of the

transactions which have been magnified into the crime



ARGUMENT OF MR. WICKHAM. 597

of treason, should be fully disclosed ; and unless he be
greatly mistaken it is now in his power to adduce strong
and conclusive testimony in direct opposition to that
which has been relied on in behalf of the prosecution.
But if we may calculate from the time that has been al-
ready consumed in the examination of the small number
of witnesses that have yet been introduced, out of about
one hundred and forty that have been summoned on
the part of the United States, it is hardly possible that
an opportunity will be afforded him of calling a single
witness before the jury. Weeks, perhaps months, will
pass away before the evidence for the United States is
closed ; and at this unfavorable season, nothing is more
likely than that the health of some one, and perhaps
more of the jury, will be so far affected by the climate and
confinement, as to render it impossible to proceed with
the trial. Should such an event happen, the cause must
lie over, and our client, innocent, as we have a right to
suppose* him, may be subjected to a prolongation of that
confinement which is in itself a severe punishment. The
jury too are placed under very unpleasant restraints, and
it would be an act of injustice to them, as well as to him,
to acquiesce in a course of proceeding which would draw
out the trial to an immeasurable length ; and which we
conceive to be neither conformable to the rules of law nor
consistent with justice.

Hitherto the counsel for the United States have taken
frequent occasions to declare their belief of the guilt of
the accused. On the motion I am about to make, argu-
ments drawn from this topic will have no application.
The question will turn on abstract principles which will
neither be changed nor affected by his innocence or guilt.
The foundation on which this prosecution must rest, and
which I should hope had not been seen or attended to
by the counsel for the United States themselves, will be
exposed to view ; and it will be for them to determine
whether it shall be abandoned or maintained by doc-
tines incompatible with our republican institutions, and
utterly inconsistent with every idea of civil liberty.

In combating these doctrines we shall, so far as we are
able, support the cause, not of our client alone, but of
every citizen of the United States, and of future genera-



598 TRIAL OF AARON BURR.

tions ; for as to the establishment of the principle, it
ought not to be considered as his cause alone, but as the
cause of every member of the community and of pos-
terity.

The first position I shall lay down, is, that no person
can be convicted of treason in levying war, who was not
personally present at the commission of the act, which is
charged in the indictment as constituting the offense.

The 3d section of the 3d article of the constitution of
the United States, declaring that " treason shall consist
only in levying war against them, or in adhering to their
enemies, giving them aid and comfort," and that " no
person shall be convicted, unless on the testimony of
two witnesses to the same overt act," there can be no
doubt, if the words be construed according to their nat-
ural import, that it is necessary, in order to fix the guilt
of the accused, to prove by two witnesses, that he com-
mitted an act of open hostility to the government, at the
place charged in the indictment.

But artificial rules of construction, drawn from the
common law and the usages of courts in construing sta-
tutes, are resorted to in order to prove that these words
of the constitution are to be construed, not according to
their natural import, but that an artificial meaning drawn
from the statute and -common law of England, is to be
affixed to them totally different.

In the first place, I deny that any such rules of con-
struction, however just they may be when applied to
a statute, can be properly used with reference to the
constitution of the United States.

This instrument is a new and original compact be-
tween the people of the United States, embracing their
public concerns in the most extensive sense ; and is to
be construed, not by the rules of art belonging to a par-
ticular science or profession, but, like a treaty or na-
tional compact, in which the words are to be taken ac-
cording to their natural import unless such a construc-
t i would lead to a plain absurdity, which can not be
pretended in the present instance.

It being new and and original and having no reference
to any former act or instrument, forbids a resort to any
other rules of construction than such as are furnished by



ARGUMENT OF MR. WICK HAM. 599

the constitution itself, or the nature of the subject. If I
be correct in this, there is an end to all further inquiry.
It is not necessary to resort to artificial rules of con-
struction. The words of the constitution, " levying (or
making) war," are plain and require no nice interpreta-
tion : and with respect to the other clause, " adhering to
their enemies," &c., it is a matter of no consequence here
what may be its correct exposition, for the common-
wealth has no enemies. The counsel for the United
States will not contend that the words, used in their na-
tural sense, can embrace the case of a person who never
himself committed an act of hostility against the United
States, and was not even present when one was com-
mitted.

But they will insist that these words in the constitu-
tion are to have an artificial meaning, such as they con-
tend has been given them in the courts in England ; and
that in that country, all persons aiding and abetting
others in the act of levying war against the government,
are guilty of treason, though not personally present.

I shall contend first, that notwithstanding some dicta
of law-writers to the contrary, no such rule has practi-
cally obtained in that country ; and that the decisions,
entitled to any respect, lead to an inference directly con-
trary.

And secondly, that if I be wrong in this, the princi-
ple adopted there can not apply to treasons under the
constitution of the United States.

I shall admit that Lord Coke and, after him, other
writers who are deservedly revered, have laid down as a
general position, that there are no accessories in treason
either before or after the fact, but that all are princi-
pals.

But no adjudictions, in the case of an accomplice in
the nature of an accessory before the fact, bear them out
in it, except that of Sir Nicholas Throgmorton, reported
I State Trials, pp. 63 to 78 ; and the conduct of the court
on that occasion was so obviously contrary, not only to the
rules of law and justice, but even to those of decency, that
I persuade myself the counsel on the other side will not
rely on it as an authority.

A very faithful and correct account of it is given by



6oo TRIAL OF AARON BURR.

Judge Tucker in his appendix to 4th Blackstone's Com-
mentaries, note b, p. 44. He contests the doctrine ad-
vanced at this day, " that whatever will make a man an
accessory in felony, will make him a principal in treason."
He shows that it is derived from three original cases
only; and then proceeds thus, " This doctrine appears to
have slept from the year 1488, to the year 1554,
when it was revived upon the trial of Sir Nicholas
Throgmorton, in the first year of the reign of Queen Mary.
He was indicted, I. For conspiring and imagining the
death of the queen ; 2. For levying war against her
within the realm ; 3. For adhering to her enemies
within the realm, giving them aid and comfort ;
4. For conspiring and intending to depose the
queen; 5. For traitorously devising and concluding to
take the of Tower London. Upon his trial, Stanford,
author of the Pleas of the Crown, and Dyer, afterwards
chief justice, assisted in the prosecution, as queen's ser-
geants. Bromley, chief justice of England, who appears
to have been another Jefferies, and Sir Nicholas Hare,
master of the rolls, a fit associate for him, and Sir Roger
Cholmley, one of the same stamp, were among the num-
ber of his judges, and managed the trial. At this trial,
the doctrine of constructive treason in its fullest extent
was insisted on by the counsel for the prosecution, and
sanctioned by the judges, notwithstanding the prisoner
reminded the court of a statute, passed not six months
before, whereby it was declared, that no offense made
treason by act of parliament should thereafter be held to
be treason, except such as were so declared by the sta-
tute 25 Edw. 3, which statute he desired might be read
to the jury. The court told him there should be no
books brought at his request ; they knew the law suffi-
ciently without book ; it was not their business to pro-
vide books for him, neither did they sit there to be
taught by him. If anything more be requisite to show
the respect due to the decisions of the court, it may not
b amiss to mention, that they ordered a person, whom
the prisoner called as a witness, on his behalf, out of
court. That one Vaughan, who was under sentence of
death, and whose execution was respited that he might
be present at this trial, was admitted as an evidence



ARGUMENT OF MR. WICKHAM. 60 1

against him. That the confessions of one Winter and
one Crofts, then alive and in custody, were read in evi-
dence against him, the witnesses themselves not being
produced in court. These words of the statute 25 Edw.
3, ' and be thereof attainted of open deed by people of
their condition,' which Sir E'dvvard Coke and every other
writer on criminal law from his time to this, expounds
to mean, by verdict of a jury of their peers, were thus
expounded by the chief justice addressing himself to the
prisoner: 'You deceive yourself, and mistake these
words by people of their condition ; for thereby the law
doth understand the discovering of your treasons. As
for example, Wyatt and other rebels, attainted for their
great treasons, already declare you to be his and their ad-
herent, inasmuch as divers and sundry times you had
conference with him and them about the treason ; so
as Wyatt is now one of your condition, who, as the
world knoweth, hath committed an open, traitorous fact.'
The word 'enemies' was likewise expounded to mean



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