Aaron Burr.

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

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to name as many witnesses as he could, and bring it
before the court. Still there was no proof of war. At
length, however, the Spaniards invaded our territory,
and yet there was no war. But, sir, if there was a war,
certainly no man can pretend to say that the government
is able to find it out. The scene to which they have
now hunted it, is only three hundred miles distant, and
still there is no evidence to prove this war.

Mr. Burr requested the court to consider the conse-
quence which would now result from a commitment for
treason ; that if he were bound now, the law of Virginia
declared that he should so remain until the next term ;
that this delay was the very inconvenience he would
wish to avoid ; and that he presumed he was to remain
in prison six months, until they could find out this war.

TUESDAY, MAY 26, 1807.

TJie following Opinion was delivered by the Chief Justice

of the United States, on Mr. Hays motion to commit

Colonel Burr.

In considering the question which was argued yester-
day, it appears to be necessary to decide :

1st. Whether the court, sitting as a court, possesses
the power to commit any person charged with an offense
against the United States.

2d. If this power be possessed, whether circumstances
exist in this case which ought to restrain its exercise.

The first point was not made in the argument, and
would, if decided against the attorney for the United
States, only change the mode of proceeding. If a doubt
can exist respecting it, that doubt arises from the omis-



OPINION ON MOTION TO COMMIT. 53

sion in the laws of the United States to invest their
courts, sitting as courts, with the power in question.
It is expressly given to every justice and judge, but not
to a court.

This objection was not made on the part of Colonel
Burr, and is now mentioned, not because it is believed
to present any intrinsic difficulty, but to show that it has
been considered.

This power is necessarily exercised by courts in dis-
charge of their functions, and seems not to have been
expressly given ; because it is implied in the duties which
a court must perform, and the judical act contemplates
it in this light. They have cognizance of all crimes
against the United States; they are composed of the
persons who can commit for those crimes ; and it is ob-
viously understood, by the legislature, that the judges
may exercise collectively the power which they possess
individually, so far as is necessary to enable them to re-
tain a person charged with an offense in order to receive
the judgment which may finally be rendered in his case.
The court say this is obviously understood by the legis-
lature ; because there is no clause expressly giving to
the court the power to bail or to commit a person, who
appears in discharge of his recognizance, and against
whom the attorney for the United States does not choose
to proceed ; and yet the thirty-third section of the
judical act evinces a clear understanding in the legisla-
lature, that the power to take bail is in the possession of
the court.

If a person shall appear in conformity with his recog-
nizance, and the court passes away without taking any
order respecting him, he is discharged. A new recog-
nizance, therefore, or a commitment on the failure to
enter into one, is in the nature of an original commit-
ment, and this power has been uniformly exercised.

It is believed to be a correct position, that the power
to^commit for offenses of which it has cognizance, is ex-
ercised by every court of criminal jurisdiction, and that
courts as well as individual magistrates are conservators
of the peace.

Were it otherwise, the consequence would only be
Jhat it would become the duty of the judge to descend



54 TRIAL OF AARON BURR.

from the bench, and, in his character as an individual
magistrate, to do that which the court is asked to do.

If the court possesses the power, it is certainly its duty
to hear the motion which has been made on the part of
the United States ; for, in cases of the character of that
under consideration, its duty and its power are coexten-
sive with each other. It was observed when the motion
was made, and the observation may now be repeated,
that the arguments urged on the part of the accused
rather prove the motion on the part of the United
States unnecessary, or that inconveniences may result
from it, than the want of a legal right to make it.

The first is, that the grand jury being now in session
ready to receive an indictment, the attorney for the
United States ought to proceed by bill instead of ap-
plying to the court, since the only purpose of a commit-
ment is to bring the accused before a grand jury. This
statement contains an intrinsic error which destroys its
operation. The commitment is not made for the sole
purpose of bringing the accused before a grand jury ; it
is made for the purpose of subjecting him personally to
the judgment of the law, and the grand jury is only the
first step towards that judgment. If, as has been argued,
the commitment was simply to detain the person until
a grand jury could be obtained, then its operation
would cease on the assembling of a grand jury; but
such is not the fact. The order of commitment retains
'its force while the jury is in session, and if the prosecutor
does not proceed, the court is accustomed to retain a
prisoner in confinement, or to renew his recognizance to
a subsequent term.

The arguments drawn from the general policy of our
laws ; from the attention which should be bestowed on
prosecutions, instituted by special order of the execu-
tive ; from the peculiar inconveniences and hardships of
this peculiar case ; from the improper effects which
inevitably result from this examination, are some of
them subjects for the consideration of those who make
the motion, rather than of the court ; and others go to
the circumspection with which the testimony in support
of the motion ought to be weighed, rather than to the
duty of hearing it.



OPINION ON MOTION TO COMMIT. 55

It has been said that Colonel Burr already stands
charged with treason, and that, therefore, a motion to
commit him for the same offense is improper. But the
fact is not so understood by the court. The application
to charge him with treason was rejected by the judge
to whom it was made, because the testimony offered in
support of the charge did not furnish probable cause for
the opinion that the crime had been committed. After
this rejection, Colonel Burr stood, so far as respected his
legal liability to have the charge repeated, in precisely
the same situation as if it never had been made. He
appears in court now as if the crime of treason had never
before been alleged against him. That it has been alleged
that the government had had time to collect testimony for
the establishment of the fact that an immense crowd of
witnesses are attending for the purpose, that the prose-
cutor in his own judgment has testimony to support the
indictment, are circumstances which may have their in-
fluence on the motion for a commitment, or on a con-
tinuance, but which can not deprive the attorney for the
United States of the right to make his motion. If he
was about to send up a bill to the grand jury, he might
move that the person he designed to accuse, should be
ordered into custody, and it would be in the discretion
of the court to grant or to reject the motion.

The court perceives and regrets that the result of this
motion may be publications unfavorable to the justice,
and to the right decision of the case ; but if this conse-
quence is to be prevented, it must be by other means
than by refusing to hear the motion. No man, feeling a
correct sense of the importance which ought to be
attached by all to a fair and impartial administration of
justice, especially in criminal prosecutions, can view
without extreme solicitude, any attempt which may be
made to prejudice the public judgment, and to try any
person, not by the laws of his country and the testimony
exhibited against him, but by public feelings, which may
be, and often are, artifically excited against the innocent,
as well as the guilty. But the remedy, for a practice
not less dangerous than it is criminal, is not to be
obtained by suppressing motions, which either party may
have a legal right to make.



56 TRIAL OF AARON BURR.

If it is the choice of the prosecutor on the part of the
United States to proceed with this motion, it is the
opinion of the court that he may open his testimony.

Mr. Hay then rose, and observed that he was struck
with the observations of the court relative to " publica-
tions." and he would attempt, if possible, to make some
arrangements with the counsel on the other side to
obviate that inconvenience ; and he understood they
were to do the same.

The counsel on both sides then retired by permission
of the court for this purpose. They returned in a short
time ; and Mr. Hay informed the court that the counsel
for the. United States, and for Mr. Burr, not having yet
been able to agree upon any arrangement which would
attain his object, namely, that of having Mr. Burr recog-
nized in a sum sufficiently large to insure his appearance
to answer the charge of high treason against the United
States, without incurring the inconvenience resulting
from a public disclosure of the evidence at this early
stage of the proceedings, wished to have further time for
that desirable purpose. This was granted by the court,
and it then adjourned till next day.

WEDNESDAY, MAY 27, 1807.

Mr. Hay informed the court that all hopes of the
arrangement which he had mentioned yesterday were at
an end : for he had received a letter from Mr. Burr's
counsel, positively refusing to give additional bail.
He therefore deemed it his duty to go on with the
examination of the witnesses in support of his motion to
commit Mr. Burr. He observed that he regretted
extremely that it became necessary in his judgment to
pursue this course. He felt the full force of the objec-
tions to a disclosure of the evidence, and to the neces-
sity of the court's declaring its opinion before the case
was- laid before a jury ; but those considerations must
yield to a sense of what his engagements to the United
States imperiously demanded of him : that in adducing
the evidence, he should observe something like chrono-
logical order. He should first read the depositions of
the witnesses who were absent, and afterwards bring for-



ARGUMENT OF MR. HAY, 57

ward those who were present, so as to disclose all the
events as they successively happened.

Mr. Wickham stated that there were two distinct
charges against Mr. Burr. The first was for a misde-
meanor, for which he had already entered into recogni-
zance ; the second was a charge of high treason against
the United States, which was once proposed without
success, and is now again repeated. On this charge the
United States must substantiate two essential points:
1st. That there was an overt act committed ; and 2d.
That Colonel Burr was concerned in it. Everything
that does not bear upon these points is of course inad-
missible ; the course therefore laid down by the attorney
for the United States is obviously improper. He pro-
poses to examine his witnesses in a kind of chronolo-
gical order.

Mr. Burr requires that the evidence should be taken
in strict legal order. The court and even the opposite
counsel will see the propriety of observing this order.
If the attorney for the United States has affidavits to
produce, let him first demonstrate that they have a
right to produce them. We first call upon him to prove,
by strict legal evidence, that an overt act of treason has
been committed. If he can not establish that one point,
all the evidence which he can ptoduce, is nugatory and
unavailing.

Mr. Hay had no doubt that the gentleman would, if
he could, suppress all the evidence ; that although that
gentleman had been so good as to prescribe for him the
course he ought to pursue, he should still pursue his
own course ; and he would assure that gentleman that
he was almost the last person in the world whose advice
on the present occasion he would pursue. Mr. Hay
observed that he could not consent to such a separation
of the evidence as that gentleman required ; that he
should lay all his evidence before the court, and that the
court must separate for themselves.

The two charges which are brought against Aaron
Burr are naturally and intimately blended. They form
distinct parts of one great design. What that great
design was in all its bearings and ramifications, I am not
absolutely certain ; but I have always conceived, that



5 8 TRIAL OF AARON BURR.

before Mexico was invaded, New Orleans was to be
taken. How, then, is it possible to separate these two
great allegations? This monstrous design consists of
two great plots ; both going on together ; and both so
strongly connected, that accomplishing the one is pre-
paratory to accomplishing the other. If Aaron Burr's
object was to plant his standard in Mexico, he was first
to have seized the shipping and banks of New Orleans.
We ask, then, how can we separate line by line, and
word by word, the evidence produced to prove these
two distinct allegations? The designs are connected,
and the evidence is connected.

Mr. Burr rose to speak, when Mr. Hay proceeded to
the following effect : I have a little more yet to say. If,
sir, exceptions are thus to be continually taken to the
most common measures ; if in this way every inch of
ground is to be disputed, contrary to every practice that
has prevailed in our country ; instead of ten hours, or
ten days, this trial will take up ten years. What an
extraordinary proceeding is this, sir ! Why, sir, we are
not to steer our course even five inches without encount-
ering some unusual difficulty or other ! and yet these
gentlemen talk of precedents. And where, sir, are pre-
cedents for this, that the counsel before an examining
court is to be instructed how to bring out his evidence?
I never saw such a thing done before ; such a thing
ought not to be done. It is novel in itself, it is impos-
sible to be supported. Gentlemen, may make motions
as they please ; but they will not drive me from my pur-
pose. I will or I will not produce my evidence, whether
it pleases them or not. And, sir, it is a poor compliment
indeed that these gentlemen offer to the bench whom
they address ! If a deposition states anything,' or a
witness says anything which is irrevelant to the case,
can not the court be trusted with these distinctions?
Can not they decide whether this evidence is to be
weighed, or that to be rejected ? Do they distrust the
judgment of the court ? No, sir, they do not ; but they
wish to hamper us with every trifling difficulty which
they can throw into our path. The present, sir, is a most
serious allegation. It affects the life and character of
the accused. He has come forward with assertions cf



ARGUMENT OF MR. WICK HAM. 59

his own innocence ; and he charges us with persecution.
But, sir, does it evince any consciousness of innocence,
thus to be going against every precedent established in
this or any other country ? Sir, I trust that the court
will go on in spite of all opposition.

Mr. Wickkam stated that having taken the liberty of
suggesting this course of proceeding, he should advance
a few observations on it ; and he did this the more
readily, because it had been insinuated that no man,
standing like himself as a professional man, would have
made a motion of this sort. [Mr. Hay declared he had
said no such thing.] Mr. Wickham said he had rights as
counsel for his client, and he had rights belonging to
himself. No man is heard for himself; but so long as
they employed professional men to defend them, these
had a right to pursue the best course they could devise
for the benefit of their client. He would therefore go
on.

Mr. Hay speaks of two distinct charges; the invasion
of Mexico, and the seizing of New Orleans : but he
declares them to be necessarily blended. How so ?
Could not a man " levy war " against the United States
without an invasion of Mexico? In Pennsylvania we
have seen an insurrection against the United States, but
no invasion of Mexico. Much is said of the loss of
time, and of certain difficulties thrown in the way of the
prosecution.

As to the first, sir, let the world decide whether he or
we have most pleaded for delay ; at all events, we can
not entertain any fear that this court will be impatient.
As to the difficulties in their way, we will say this : let
the gentlemen pursue a regular course ; let them bring
this business before the grand jury, and we shall make
no objections. But, sir, if they pursue this course over
and over again ; if they are continually throwing diffi-
culties in our way ; we Shall mete out to them the same
measure which they mete to us. Who has ever known
a proceeding like the present ? Who has ever heard of
the practice of coming out at such a stage as this with a
distinct substantive charge, not growing out of the evi-
dence before the court, but from other sources ! Surely
these gentlemen do not cry out for mercy : they stand



60 TRIAL OF AARON BURR.

upon the law ; and law they shall have. Gentlemen
-say that no such exception as this was ever taken before
an examining magistrate. But, sir, where are the re-
porters that attend private magistrates, to record their
precedents ? Magistrates are to go by law ; and what
law? They must observe the rules of evidence. Would
gentlemen introduce their witnesses without swearing
them ? But the court must have all the evidence before
them; and they "must separate " the good from the
bad: but is this consistent with common sense; is it
consistent with the books ? The practice has always
been, when an attorney introduces a writing into court,
for the court to ask what he is to prove by it ; when he
introduces a paper, to show the general contents of that
paper. This was the practice on the memorable trials
of Hardy and Tooke in England. In chancery business,
indeed, a practice has crept in for the judge himself to
read the papers without knowing anything of their gen-
eral contents ; but this is done merely for the sake of
convenience, and will not certainly apply to criminal
prosecution.

It is asked, "Are we afraid to trust the court" with
this evidence ? No, sir, we are afraid to trust the court
with nothing ; but we do fear to prejudicate the mind
of the grand jury, by this premature and illegal ex-
hibition of evidence. Let the time come, when Colonel
Burr is to come regularly before the jury, and we shall
then see who shrinks from the testimony. A number of
other remarks have been made, sir, about Colonel Burr's
apprehensions. All propriety and decorum have been
set at naught ; every idle tale which is set afloat has
been eagerly caught at. The people here are interested
by them ; and they circulate all over the country. Sir,
if the attorney for the United States shall choose to
send up his bills before the grand jury, then I hope the
whole evidence will be laid before the world, and we
shall hear no more of rumors and prejudices.

These gentlemen say : " Shall you pretend to order
us ; shall you dictate ?" No, sir, the law must dictate.
The gentlemen, indeed, have produced a series of irrele-
vant writings and papers ; and they must, forsooth,
pursue a chronological order. No, sir, away with such



EVIDENCE AS TO OVERT ACTS. 6r

informalities. Let gentlemen prove an assemblage of
men of war. Let them prove the overt act. If they do
not, I confidently hope that Colonel Burr will be dis-
charged. Mr. Wickham here read a quotation from
Foster's Discourses on High Treason.

Mr. Burr did not expect an opinion of the court, since
no motion had been made. Mr. Wickham had only
given notice to the opposite side that they should fol-
low the strictest rules of law. If it was for a suit of io
only, he should ask for the laws of evidence.

The chief justice said it would certainly be better, if
evidence was produced, to prove the facts first, and the
evidence to show their coloring ; for no evidence cer-
tainly has any bearing upon the present case, unless the
overt act be proved. However, if the attorney for the
United States thinks the chronological order the best,
he may pursue his own course; but the court trusts to
him, that he will produce nothing which does not bear
upon the case.

Mr.' Wirt. We coincide with the opinion of the court
that an overt act ought to be proved, and that we ought
to produce no evidence at all, unless we had enough to
prove the overt act. We do believe that we have suf-
ficient evidence for this purpose ; but we think it best to
pursue something like a chronological order, to take this
conspiracy in its germ, to go on step by step, and to
trace out every event as it subsequently arose.

Mr. Hay observed that it would be necessary to give
evidence to show the temper of the mind of the accused ;
as, for instance, Mr. Stoddert would show his hostility to
the administration, and even to the government. To
show this disposition of mind might lead to treasonable
designs, to plans, and thence to overt acts. This was
the natural order of things, and of the evidence. He
hoped that in drawing out this evidence, the court would
rely upon his candor and humanity, that he would pro-
duce none which he did not believe to bear upon the
fact.

Mr. Randolph said that however he might respect
that gentleman's humanity, he knew too well the temper
cf any prosecution to expect much from it. They
y.icr for strict law, and so are we. In England, before



62 TRIAL OF AARON BURR.

a witness is heard, it must be stated in general terms
what he intends to prove. The same practice ought
to prevail here. Let the attorney for the United States
state the substance of each part of the testimony he
is to produce, and the court will then perceive whether
it is calculated to bear upon the case itself, or whether
it is only intended to inflame the public prejudice
against Colonel Burr. We demand that the overt
act be first proved ; without that, the accessorial evi-
dence is of no kind of use. Let that be established,
and the accessory facts will then have their weight. I
hope, sir, if the attorney for the United States does not
introduce his evidence on that point, we shall be at
liberty to suppress all the irrelevant testimony.

Mr. Botts said he should leave it to the court.

Mr. Hay. Agreed.

The chief justice decided that the attorney for the
United States might pursue whatever course he thought
best.

Mr. Botts. Send us the written testimony before you
submit it to the court.

Mr. Hay. As I said before, I shall take up the depo-
sitions first, and then the viva voce testimony in
chronological o'rder. I shall first introduce General
Wilkinson's deposition.

Some desultory conversation then ensued between
Mr. Hay and Mr. Botts, on the latter demanding the
liberty of examining the deposition. At length, Mr.
Hay handed the paper to him. Mr. Botts then addressed
the court.

Mr. Botts. In my objections to General Wilkinson's
affidavit, I may be compelled to question the correctness
of principles, in favor of which the court has expressed
an impression. It has been our misfortune to have been
drawn out into a desultory discussion of some of the
propositions, fixing limits to the examination ; when
these propositions had such relation to each other,
and among themselves, as to render it difficult to fortify
one effectually against assault, without the support of
the others. And although the subject was not wantirgj
in novelty or importance to fit it for solemn argument,
yet the complaints of the prosecutor, so often, so loudly,



ARGUMENT OF MR. BOTTS. 63

and so causelessy repeated, have forced from the court a
premature intimation of judgment. I feel the perplex-
ity of my situation most sensibly, and shall hope for the
indulgence of the oourt, if I should unwarily stray into
the seeming indecorum of resisting now and then an
inclination of the mind of the bench. Whenever I ven-
ture into a scene so delicate, I shall present to the court
authorities not to be resisted.

The opinion of the supreme court overruling the
objection, that the oath administered to General Wil-
kinson was extrajudicial, fixes the law for this court.
The best evidence that the nature of the case will admit
of, should be produced. This rule applies to every stage
of every case in every court. The failure to produce the
best evidence that the nature of the case admits of, fur-



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 7 of 64)