Aaron Burr.

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

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were to be prejudicated by an unconstitutional decision;
and that the court itself was to commit its opinion on
certain points, which would be regularly brought before
them for argument and for decision at some of the
ulterior stages of the prosecution. " Why," said Mr.
Wirt, "do you shrink?" Sir, trace the course of the
prosecution, and see who it is that retires from the con-
test. On Friday the United States' attorney was not
ready; on Saturday, he was not ready; and now, indeed,
he we will not probably be ready before Monday next.
Sir, who is it that shrinks? and yet does the attorney
positively aver, that he has evidence enough !

We are charged, sir, with addressing the multitude.
Mr. Wirt says that he could, but would not imitate the
example ; but neither he nor Mr. Hay hath spared the
theme. -Sir, I will not deny the justness of his eulogiums
upon the administration ; but permit me only to remark,
that there has been a certain conduct observed towards
Colonel Burr which excites my deepest astonishment.
When I look at the first man in the government, I be-
hold an individual whom I have long known, and whose
public services have commanded my admiration. When
I look at the second, sir, he has my whole heart. But,



42 TRIAL OF AARON BURR.

sir, the inquiry which is now before us relates not so
much to the intention as to the effect. An order has
been given to treat Colonel Burr as an outlaw, and to
I burn and destroy him and his property. And, sir, again:
when the house of representatives demanded certain in-
formation, as it was their right and their duty to do, the
president granted it, and would to God, sir, that he had
stopped here, as an executive officer ought to have done.
He proceeded, however, to say that Colonel Burr was
guilty of a crime, and consequently to express an opinion,
which was calculated to operate judically upon the
judges and the juries. Such was the substratum of all
the censures which have been heaped upon Colonel
Burr.

Mr. Randolph proceeded to touch upon a subject to
which Mr. Hay had referred. Colonel Burr was arrested
in the Mississippi Territory. Was there no court there?
was there no judge of integrity to try him ? arrested too
after he had been acquitted by a grand jury ! Well !
he was transported thence (with humanity it has been
said), dragged on by eight musketeers, who were ready
to shoot him at a moment's warning; refused any appeal
to the judicial authority; denied even the melancholy
satisfaction of writing to his only child. Was all this
humanity? Dragged before this court, which derives its
only jurisdiction from a little speck of land on the Ohio.
Yes, sir; but for that little spot of an island, Virginia
never would have enjoyed this honor ! What is all this,
sir, but oppressive and bitter inhumanity? I trust, sir,
from what I have said, that no one will think with Mr.
Wirt, that I am shifting the question from Colonel Burr
to Mr. Jefferson. I should not have made the obser-
vations which have escaped me, but to show that my
client is justified 'by his situation in stating every objec-
tion that he can to the present measure. .

Mr. Randolph observed that at least one disadvantage
would result from this inquiry; that it was not clear, as
Mr. Hay had asserted, that the affidavits would be laid
before the court only, and not before the grand and petit
juries, for the grand jury would soon be possessed of the
substance of them, and that it was next to imposible for
them to separate the impressions thus illegally to be pro-



ARG UMENT. 43

duced on their minds, from the weight of the legal viva
voce testimony.

Mr. Randolph said that he did not understand Mr.
Hay's expressions about certain persons in holes and
corners ; that if, however, he meant spies, there were none
such employed by Colonel Burr ; but, although the govern-
ment certainly had employed no spies, yet it has excited
so much prejudice against Colonel Burr, that it was suf-
ficient to make every man in the country desirous of
contributing his full quota of information against him.
Mr. Randolph concluded with remarking, that the
present argument had perhaps been permitted to em-
brace too wide a field of discussion, and that there were
two great questions which he should submit to the con-
sideration of the court: 1st, Whether there were any
precedents in favor of the present motion ? and 2d, If a
proposition like this, and of such great importance, was
adopted without any precedent to support it, whether it
would not expose every man in the country to the danger
of oppression ?

Mr. Randolph contended that this was a charge which
the judge had already decided, on a former examination ;
that it was not a supplemental crime, but the old one ;
that, perhaps, there might be some little affidavit to
splice out some defect in the former evidence ; but what
would be the consequence of this proceeding? Day
after day, another and another affidavit would be
brought forth. Facts, like polypi, are easily cut into
two or three pieces, each of which may be made to form
a new and entire body, and each of those atoms is to
require a new recognizance. For one affidavit there
must be a bail of 1,000 dollars: another affidavit, another
1,000 dollars : until the burden of bail is so oppressive as
to leave no other resource but in the four walls of a prison.

Mr. Hay observed that he should simply notice one
remark of Mr. Randolph's. That gentleman had used
the expression of " pioneer of blood ; " but surely it
would not have escaped him, had he but for one moment
seriously reflected upon the court whom he addressed,
upon the counsel he opposed, or the government. Satis-
fied of this, Mr. Hay said he should pass the observation
by without further notice.



44 TRIAL OF AARON BURR.

Mr. Randolph had stated that no similar case had oc-
curred in his thirty years' practice. It was not won-
derful that such a case had not occurred in the time
when that gentleman was attorney for the common-
wealth. A great change has taken place in the system
of our government. At that time no federal court ex-
isted. The mode of proceeding in the state courts is
different from that here. In the system of penal law
established in the commonwealth of Virginia, there is an
examining court, intervening between the arrest and
commitment of a prisoner, and his being charged before
the grand jury ; but this court has the power to examine
as well as to commit. Moreover, the United States are
a most extensive country, compared to that of Virginia;
a most material .witness may now be 1,500 miles from
the court before which he is to appear ; and may be at
the same time at the head of an army ; in all which cir-
cumstances, the federal and the state sovereignties are
different. So that this difference altogether defeats the
application of Mr. Randolph's experience to this subject^
even if that experience had been admitted as a good
authority in the state courts. But even that gentleman
would admit, that had a similar case occurred before the
state courts, the accused would have been committed.
Mr. Randolph asserts that this motion is made to draw
forth the opinion of the court, and thus to prejudicate
the minds of the grand jury. But Mr. Randolph has
certainly forgotten that this intelligent and impartial
jury are on their oaths and their consciences ; and surely
this court will not pay so little compliment to their
independence, as to admit that its own opinion will be
sufficient to bias their judgment; more particularly, too,
when the point before the court is so different from that
before the jury. It is the business of the court to com-
mit, and of the jury to indict; and it is certainly the
privilege of the court to decide upon written testimony,
although that point may not be perfectly established
and settled as it relates to the grand jury. How the
court would decide upon this point, Mr. Hay said, he
could not pretend to know. There is another consider-
ation, which should be weighed by the opposite counsel.
The grand jury is now already embodied. They are



ARGUMENT. 45

ready to proceed with any business which may be
brought before them ; but my great object, said Mr. Hay,
is to prosecute Colonel Burr on the charge of treason.
I make this declaration, because I believe him to have
been guilty of it. Let us suppose, however, that the
grand jury were to discharge Colonel Burr from the mis-
demeanor; and then that I were to bring the present
motion before the court, what resource then would Mr.
Randolph have ? From the present proceeding, how-
ever, Mr. Burr would derive the advantage of an imme-
diate trial ; whereas, according to the other mode of
proceeding, weeks and months might escape before he
would be brought to trial ; and certainly it is, in every
point of view, more desirable, both for the government
and himself, to terminate this business at once, than to
impose upon us the necessity of moving for an adjourned
trial.

Mr. Randolph says, " We are ready; we were ready
on Friday ; we were ready on Saturday, &c." Sir, there
are two sorts of readiness : one in point of fact, and
one under certain circumstances. Now, these gentle-
men will scarcely persuade me that they could be ready
to resist the weight of evidence, if it were ready to be
laid before them ; but there is certainly no difficulty in
believing that they are now ready to proceed to trial,
when the whole evidence, and particularly General Wil-
kinson's, is not present. One more, remark : Mr. Ran-
dolph has expressed a reverence for Mr. Jefferson, which
is not certainly derived from trifling considerations. I
will make but one remark, and that gentleman will agree
with me in the opinion : Survey the many-peopled
globe, through all ages and nations, and you will not
find a man more anxiously bent upon promoting the
liberty of the people. This was certainly the idea which
Mr. Randolph intended to convey. Mr. Randolph next
proceeded to Mr. Madison, upon whom he has not hesi-
tated to lavish the most unreserved encomiums. Surely,
then, after this solemn declaration of the oldest counsel
for the prisoner, we shall hear no more about persecu-
tion. Sir,. it is a state of things, which it is impossible
to reconcile with the amiable character ascribed to the
first two officers in the government.



46 TRIAL OF AARON BURR.

Mr. Peckhain observed that he should offer a few
remarks on the supplementary arguments of Mr. Hay.
That in this case Colonel Burr's counsel had called, they
had a right to call, for precedents; that Mr. Randolph,
who had so ably represented this commonwealth, as a
criminal prosecutor for many years, had never known a
single one to justify this motion ; that however true it
might be, that the state of Virginia was now of smaller
extent than the whole of the United States, yet it wa?
then cut up into as small judicial districts as the United
States at present are, and that the witnesses in a crimi-
nal prosecution might have been scattered over those
districts, as they are said to be in the present circum-
stances ; that Mr. Randolph had represented not one of
those districts, but the whole ; not only on this side
of the mountains, but beyond them ; and even the un-
cultivated region of Kentucky, where traveling was at
that time liable to so many difficulties, and from which
it was so extremely laborious to transport the witnesses
to this side of the mountains; that it was not until Ken-
tucky had been more thickly populated, that a particular
court had been established there. And what is the case
in England and her dependencies ? Certainly that island
is not equally extensive with the United States ; but her
subjects may, at all events, be scattered over the world.
Why, then, is there no precedent in that country ? Is it
not probable that a man might happen to be as far from
the court of king's bench, as General Wilkinson is from
this court ? and yet there is no precedent to justify this
motion. What is the crime ? Is it of so little impor-
tance that this court, upon the production of every little
affidavit, should consent to hear new motions for a com-
mitment ? This crime is treason ! it is " a levying ot
war" against the United States ! and where is the proot
of it ? where were Colonel Burr's forces ? was his army
like that of Bayes, kept in disguise? Wilkinson's testi-
mony can not establish this fact ; for it is the opinion of the
chief justice, that his affidavit does not at all bear upon
this subject ; and yet two months have since elapsed,
and no testimony has been collected. Wilkinson's depo-
sition contains an improbable, mysterious tale, about a
key and cypher. Mr. Wickham said that he would not



AR G UMENT. 47

at present expose this transaction ; but does this myster-
ious tale constitute treason? " You, sir, have already
decided that there is no treason in Wilkinson's deposi-
tion ; but were the man himself in court, what could he
establish further than his deposition can do?" Mr. Hay
is satisfied that he has sufficient evidence to convict
Colonel Burr. No man doubts his ability, or his inclina-
tion to discharge his duty. Why, then, does he not lay
his indictments before the jury? Because there happens
to be a man in New Orleans, and one, perhaps, in the
Eas-t Indies; and therefore, "to make assurance double
sure," he must wait for their appearance ; and all this,
too, whilst the gentleman most seriously protests against
oppression and delay. Though the gentleman may not
be conscious of such a sentiment, as that of wishing to
oppress Colonel Burr, there must still be something like it
in his heart: but whatever the motive may be, the result
to ourselves is the same. It produces delay, and all its
consequent oppressions. No court should sanction this
proceeding. This case is like that of a man whose cause
stands for trial. When subpoenas after subpoenas have
been issued ; when sums after sums have been expended ;
he moves for a continuance of his suit, and at the very
same time, he insists upon the sufficiency of his evi-
dence. Surely the court would rule him to trial. Why
is not the attorney for the United States ready for trial ?
He has, indeed, made a computation of time to show that
Wilkinson could not have been here before this period ;
and he has besides introduced an affidavit to show that
an express was on his way to New Orleans, to give him an
early summons. There is, however, nothing in proof
that the drawer of this affidavit was not imposed on by
this express ; or that the express himself was not mis-
taken, as to the contents of his dispatches. And how
stands the computation of time ? The post goes from
Washington to New Orleans in seventeen days. Mr.
Rodney left this city in the last of March. The express
must, therefore, have reached New Orleans about the
2Oth of April; and yet, where is Wilkinson? Though
the Mississippi runs down to New Orleans, and opposes
a strong current to those who ascend it, yet it is surely a
reasonable proposition, that on land it requires no longer



48 TRIAL OF AARON BURR.

time to come than to go, and yet General Wilkinson is
not here!

Mr. Hay says it is of no consequence whether the
grand jury is present or not. But is this consonant with
the sound principles of law? Is it constitutional, sir,
where there is a particular body set apart for the investi-
gation of facts, for the court to step in and rudely take
this power from them ? He says that perhaps he shall
not send up his biljs before the present grand jury. But
I trust in God, sir, that this determination will be over-
ruled by the court; and that if this prosecution is ever
to be closed, we may see the curtain dropped upon it
now and forever! If, sir, the counsel for the prosecu-
tion obtain a postponement of this trial, and for want of
evidence on their part, we might probably contend, that
Colonel Burr, if bound to bail at all, should be held in a
smaller recognizance than at present. But we shall
waive this right. It is not our wish to discharge the
grand jury, but to set this question at rest forever.

We have said that we were ready for trial. We are so,
sir, in fact, as well as in the abstract. The prosecutors
say that we do not believe them to be ready : but how
can the gentleman suppose that we mean to pay so poor
a compliment to his veracity, as to believe that he acts
upon his own facts, as if he himself did not believe
them to be true?

The gentleman, sir, has warmly eulogized the present
administration. As a private citizen, sir, no man has
less to say with the politics of this country than myself.
That gentleman has drawn a picture of our national pros-
perity ; and I am happy to hope that it is true to life in
everything, one feature only excepted. What, how-
ever, will he say of the persecution of my client ? Sir,
let that gentleman draw the most animated picture of
our happiness, which his imagination can supply; let.it
be howsoever cheering, or howsoever just, it will be
but little alleviation to the wounds of my persecuted
client, that he is the only man in the nation whose rights
are not secure from violation.

Mr. Burr then rose and addressed the court.

I am not, I hope, sir, wasting the time of the court
upon the present occasion. The motion proposed, is






ARGUMENT. 49

admitted on all hands to be important ; and it is cer-
tainly a new one. Perhaps it was to have been ex-
pected, that on a point so novel, some precedents would
have been produced ; but, in this expectation we have
been disappointed. Its novelty will, however, be produc- '
tive of another effect. It will still better qualify it for
making another small feature in a picture of oppressions
and grievances, which have never been paralleled in
the records of criminal law.

The case is this : no man denies the authority of the
court to commit for a crime ; but no commitment ought
to be made, except on probable cause. This authority
is necessary ; because policy requires that there should
be some power to bind an accused individual for his per-
sonal appearance, until there shall have been sufficient
time to obtain witnesses for his trial ; but this power
ought to be controlled as much as possible.

The question in the present case is, whether there is
probable cause of guilt : and whether time ought to be
allowed to collect testimony against me ? This time
ought generally to be limited ; but there is no precise
standard on the subject ; and much is of course left to
the sound discretion of the court. Two months ago,
however, you declared that there had been time enough
to collect the evidence necessary to commit on probable
cause ; and surely, if this argument was good then, it is
still better now.

As soon as a prosecutor has notice of a crime, he gen-
erally looks out for witnesses. It is his object to obtain
probable cause for committing the accused. Five
months ago, a high authority declared that there was a
crime ; that I was at the head of it ; and it mentioned
the very place, too, where the crime was in a state of
preparation. The principal witness against me, is said to
be Mr. Wilkinson. Now, from what period is the time
to be computed ? If from the time I was suspected,
five months ; if from the time when I was siezed, three
months ; or is it to be only computed from the time
when I was committed ? So that it is near forty days
since the notice must have arrived at New Orleans.
But a vessel navigates the coast, from New Orleans to
Norfolk, in three weeks. I contend, however that wit-

I. 4



50 TRIAL OF AARON BURR.

nesses ought to be procured, from the very time when
the crimes are said to be committed. There is, then,
no apology for the delay of the prosecution, as far as
it respects the only person for whom an apology is
attempted to be made.

There are other serious objections to my situation.
Must I be ready to proceed to trial? True, sir, but then
it must be in their own way. Are we then on equal
terms here ? Certainly not. And again, as to affidavits.
The United States can have compulsory process to ob-
tain them ; but I have no such advantage. An ex parte
evidence, then, is brought before this court, on a motion
for commitment. The evidence on one side only is ex-
hibited ;- but if I had mine also to adduce, it would
probably contradict and counteract the evidence of the
United States. Well, sir, and these affidavits are put
into the newspapers, and they fall into the hands of the
grand jury. I have no such means as these, sir; and
where, then, is the equality between the government
and myself.

The opinion of the court, too, is to be committed
against me. Is this no evil?

A sufficient answer, sir, has been given to the argument
about my delay ; and its disadvantages to myself have
been ably developed. But my counsel have been charged
with declamation against the government of the United
States. I certainly, sir, shall not be charged with
declamation ; but surely it is an established principle,
sir, that no government is so high as to be beyond the
reach of criticism ; and it is more particularly laid down,
that this vigilance is more peculiarly necessary, when
any government institutes a prosecution ; and one reason
is, on account of the vast disproportion of means which
exist between it and the accused. But, if ever there was
a case which justified this vigilance, it is certainly the
present one, when the government has displayed such
uncommon activity. If, then, this government has been
so peculiarly active against me, it is not improper to
make the assertion here for the purpose of increasing
the circumspection of the court.

Mr. Burr observed that he meant by persecution, the
harassing of any individual, contrary to the forms of



ARGUMENT. 51

law ; and that his case, unfortunately, presented too
many instances of this description. He would merely
state a few of them. He said that his friends had been
every where seized by the military authority ; a practice
truly consonant with European despotisms. He said
that persons had been dragged by compulsory process
before particular tribunals, and compelled to give testi-
mony against him. His papers, too, had been seized.
And yet, in England, where we say they know nothing
of liberty, a gentleman, who had been seized and de-
tained two hours, in a back parlor, had obtained dama-
ges to the amount of one thousand guineas. He said
that an order had been issued to kill him, as he was de-
scending the Mississippi, and seize his property. And
yet, they could only have killed his person, if he had
been formally condemned for treason. He said that
even post-offices had been broken open, and robbed of
his papers ; that, in the Mississippi Territory, even an
indictment was about to be laid against the postmaster ;
that he had always taken this for a felony ; but that
nothing seemed too extravagant to be forgiven by the
amiable morality of this government. All this, said Mr.
Burr, may only prove that my case is a solitary excep-
tion from the general rule. The government may be
tender, mild, and humane to everyone but me. If so, to
be sure, it is of little consequence to any body but myself.
But surely I may be excused if I complain a little of
such proceedings. Mr. Burr said there seemed to be
something mingled in those proceedings, which mani-
fested a more than usual inclination to attain the ends of
justice ; as far as it related to himself, perhaps, these
things were of no account ; but what was then to be said
of those and other measures, such as the suspension ot
the habeas corpus act, which concerned the whole nation ?
If in the island of Great Britain such a measure was cal-
culated to produce so much disturbance, what kind of
sensation ought it to produce in this country.

Our president, said Mr. Burr, is a lawyer, and a great
one too. He certainly ought to know what it is that
constitutes a war. Six months ago, he proclaimed that
there was a civil war. And yet, for six months have
they been hunting for it, and still can not find one spot



52 TRIAL OF AARON BURR.

where it existed. There was, to be sure, a most terrible
war in the newspapers ; but nowhere else. When I
appeared before the grand jury in Kentucky, they had
no charge to bring against me, and I was consequently
dismissed. When I appeared for a second time, before
a grand jury, in the Mississippi Territory, there was
nothing to appear against me ; and the judge even told
the United States attorney that if he did not send up
his bill before the grand jury, he himself would proceed



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 6 of 64)