Aaron Burr.

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

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nishes a presumption that the higher evidence left be-
hind, would, if produced, make against the party offer-
ing the weaker. All this is familiar in civil cases, where
4Os. may be the quantum of interest in litigation. The
benefit of this common law, and common sense, ought
not to be lost when the liberty of a citizen is concerned ;
when a six months' imprisonment in a dungeon may be
the object of the motion. The supreme court con-
sidered an affidavit as the best evidence the case then
admitted of. The- accusation was fresh, and neither
time nor means had been allowed for procuring a per-
sonal attendance. Now, the accusation is old, and the
government has had all the necessary means of bringing
the witness here. The circumstances do, therefore, now
admit of higher evidence than an ex parte affidavit.

The viva voce testimony of General Wilkinson is the
right of my client. No man should be deprived of the
benefit of a cross-examination, without necessity. You
have in another place, said, sir, that it was to be made
out only by inference from General Wilkinson's affida-
vit, that Colonel Burr was the writer of the letter in
cypher. If the witness was here, he would impugn that
inference, by swearing that it was not in Colonel Burr's
handwriting. If General Wilkinson was present, would
you admit his affidavit? If he ought to have been pres-
ent, and the government would not get him, shall the
prosecution be favored for its negligence ?



64 TRIAL OF AARON BURR.

But the present charge is confined to high treason, in
levying war against the United States ; and the great
question is, whether Wilkinson's evidence is in any form
pertinent to the charge ? I do not mean to urge the
objection, that if it develops any criminal purpose, it is
not a treasonable purpose ; for this construction has
been settled by the supreme court. Admitting for the
time, that it contained evidence of a treasonable pur-
pose, and that the opinion of the supreme court is to be
overruled, still the evidence would be most impertinent
upon the present charge of actual treason.

I have alluded to legal propositions intended to be
pressed, as forming legal restrictions upon the task in
which we are engaged. I will first combine them, that
their fitness to each other, and their collective effects
may be seen. My second process will be to disunite
them, and by an analytical comparison of them with
the known principles of our treason laws, to ascertain
their legality.

No evidence of any matter ought to be given until
proof shall be adduced that there was an actual war
levied in the district of Virginia ; and until it is proved
that an overt act of treason, in that war, was done by
Mr. Burr, which proofs shall be by two witnesses at
least. First, It must be proved that there was an actual
war. A war consists wholly in acts and not in intentions.
The acts must be in themselves acts of war; and if they
be not so intrinsically, words or intentions can not make
them so. In England, when conspiring the death of the
king was treason, the quo animo formed the essence of
the offense ; but in America, the national convention has
confined treason to the act. We can not have a con-
structive war within -the meaning of the constitution.
An intention to levy war is not evidence that a war was
levied. Intentions are always mutable and variable ;
the continuance of guilty intentions is not to be pre-
sumed. If this were not the case, the avowal of a pur-
pose to levy war would fix the crime. For a proved
intention might be attached to the next innocent act of
the person who formed it ; and so, preparations of emi-
gration be turned into a levying of war. It has been
eloquently declared that war can not exist in a closet, or



ARGUMENT OF MR. BOTTS. 65

a corner ; but when levied, it must be in the face of the
world. This can not be true, if the recesses of the
bosom are to be explored for any of the ingredients in
the composition of the crime of levying war. The
guilty intention must be made manifest from the act
alone. General Wilkinson professes to know nothing
but of intentions, which are not evidence of acts.

Secondly, The war must not only have been levied,
but Mr. Burr must be proved to have committed an
overt act of treason in that war. A treasonable inten-
tion to co-operate is no evidence of actual co-operation.
The acts of others, even if in pursuance of his plan,
would be no evidence against him. It might not be
necessary that he should be present, perhaps; but he
must be, at the time of levying the war, co-operating by
acts, or, in the language of the constitution, be commit-
ting overt acts. The acts of associates, in a treasonable
plan, in countries where the doctrine of constructive war
prevails, can never be given in evidence against the ac-
cused, until after the plan has been proved on the latter,
and until such acts shall appear to have been within the
limits of that plan. I East's Crown Law, 96, 97. Part
of the proof in this affidavit is of the declarations of a
supposed associate, as to what the plan itself was. But
in this country, as there can not be a constructive trea-
sonable war, plans and acts of associates can only come
in when the former have been executed, and the latter
have been visibly and publicly assisted. Tucker's Black,
vol. 4, Appendix B.

Thirdly, The overt act by the accused, in an actual
war, must not only be proved, but it must be proved to
have been committed within this district. The fifth
article of the constitution of the United States, and the
eighth article of the amendments to the constitution,
require that the trial shall be by a jury of the district
where the offense was committed. The oath of the
grand jury is, accordingly, to inquire of offenses within
the district. . The jurisdiction of this court is also
limited, by express law, to offenses within the district ;
and it is obviously true, that the court's jurisdiction
can not be broader in an incipient inquiry than it would
be in its connection with a jury on a final trial. Doctor
i 5



66 TRIAL OF AARON BURR.

Blackstone, in the fourth volume of his Commentaries
303, refers to the oath of the grand jury, " to inquire
into offenses committed within the body of the county,
and denies the right of the grand jury to inquire into
facts out of the county. In preparing a work for the
grand jury, the court can not disregard the limits of their
power. The crime to be committed in the district must
be wholly committed there. At the common law, if the
stroke was given in one county, and the person striken
died in another, the murderer could not be prosecuted
in either. To remedy this defect, and to provide for
others similar to it, many provisions have been made by
the English parliament. 4 Black. 303-5. But the
English parliament never did alter the common law, as
it respected the crime of levying an actual treasonable
xvar. Kelyng, 15. The constitution and act of congress
have both adopted the rule of location. Tucker's Black-
stone, vol 4, Appendix B, 49, 50, 51. Granting, then,
that intention may make that war, which would not other-
wise be so, still, as a formed intention is no proof of its own
continuance or execution, the intention must be proved
to have been cotemporaneous and homogeneous with
the act in the district. In this view, the intention forms
a constituent part of the offense. If one constituent
part of the offense can be brought from without the dis-
trict, and coupled with others in the district, any one
constituent part, or number of constituent parts of the
crime may be brought from without the district. Then
one component part only happening in Virginia, out of
one hundred necessary to its completion, would give this
court jurisdiction : and thence one, out of one hundred
parts of a crime, would be a crime within the meaning
of the constitution. Let us view the consequences of this
logic.

Upon proof against Mr. Burr touching a crime, part
of which was committed in this district, he may be tried
and acquitted. In Ohio he may be indicted, and evi-
dence may be prepared touching the same crime. Can
he plead autrefois acquit in bar, by averring that the
crimes charged in the two states was one and the same ?
His averment would be against the record of the indict-
ment charging a complete separate crime in each dis-



ARGUMENT OF MR. BOTTS. 67

trict. Will you, sir, put upon the constitution such a
construction as will subject a citizen to be hunted down,
by trial after trial, in state after state, as long as the per-
secuting spirit of a wicked executive may last? Do not
understand me to allude in this to the present adminis-
tration, the characters of which I have been in the habit
of admiring ; but the construction now to be fixed must
go down to posterity, and may be made instrumental in
effecting the worst of state oppressions.

Remember that Mr. Burr has forborn to avail himself
of this legal principle in Kentucky and in the Mississippi
Territory, in order that the merits of his case might .
come before the inquests ; but it ought now to be agreed
that he should protect himself from being harassed fur-
ther; by calling into exercise the great principles of the
constitution, declaring that no man shall be twice put in
jeopardy of his life for the same offense. See amend-
ments to constitution. Now, what part of the affidavit
speaks of a fact within the district ?

Fourthly, The overt act of treason by Mr. Burr
within the district must be proved by two witnesses.
The constitution and act of congress require two wit-
nesses, not only' to the act, but to the treasonable
quality of the act. After full time has been afforded to
collect all the witnesses in the power of the government,
the accused ought not to be deprived of his liberty,
unless it was believed that the evidence collected would
convict him : imprisonment is only intended for trial
and not for punishment. By what does General Wilkin-
son's affidavit make out intentions? The answer is, by the
confessions of the accused or of his supposed associates.
The confessions of the accused, by the express words
of the constitution, are not evidence, unless made in
open court. Confessions are often admitted from neces-
sity, to get at crimes that deal in secrecy, as larceny, for-
gery, and robbery ; but the safety of the people requires
that crimes which deal in publicity, as does the crime of
a treasonable war, should not be proved by evidence so
incapable of exculpatory proof. When an honorable
gentleman (Mr. Giles) was challenged the other day
upon a suggestion of his having expressed himself upon
the case of the accused, he said he was indisposed to



68 TRIAL OF AARON BURR.

hear evidence of unguarded expressions, in which the
witness might have mistaken his meaning; have misun-
derstood what he said, or not have heard all that he
said ; or have substituted his own inferences for the
words of the speaker. Blackstone and Foster have
characterized it to be the most dangerous species of
evidence, ever liable to misconstruction and abuse. But
if the constitution has prescribed it, why now question
its exclusion ? If the confessions of the accused out of
court could not be evidence against him, could the con-
fessions of real accomplices be evidence against him ?
Yet the evidence of Wilkinson relates, in part, to the
confession of pretended accomplices, no way proved to
have been authorized by Mr. Burr to say or to do any-
thing.

But why, it may be asked, is Mr. Burr afraid to
hear illegal evidence, if he is consciously innocent ?

We see witnesses from different and distant parts of
the United States, whose names, faces, and characters,
are alike unknown to Mr. Burr. He can not ascertain
upon what parts of his life or conduct they are expected
to speak, or upon what information their evidence may
rest. His character has long been on public torture;
and wherever that happens, with either a good or a bad
man, the impulses to false testimony are numerous.
Sometimes men emerge from the sinks of vice and ob-
scurity into patronage and distinction by circulating
interesting tales, as all those of the marvelous kind are.
Others, from expectations of office and reward, volun-
teer; while timidity, in a third class, seeks to guard
against the apprehended danger, by magnifying trifling
stories of alarm. These works of exaggeration and prop-
agation are frequently the subjects of idle amusement.
The authors, until they commit themselves, have no
just conception of the mischiefs they are hatching; but
when they are afterwards called to give testimony, per-
jury will not appall them, if it be necessary to save their
reputations for consistency or veracity. If the evidence
be restricted within the legal limits, the purest of char-
acters, under accusation of treason, will have hazard
enough to run. A judge, whose experience of these dan-
gers was great, thus speaks on the subject : " The rule of



ARGUMENT OF MR. WICKHAM. 69

rejecting all manner of evidence in criminal prosecutions,
that is foreign to the point at issue, is founded on sound
sense and common justice. For no man is bound, at the
peril of life and liberty, fortune or reputation, to answer,
at once, and unprepared, for every action of his life."
Few, even of the best of men, would choose to be put to
it. And had not those concerned in the state prosecu-
tions, out of their zeal for the public service, sometimes
stepped over this rule in the case of treason, it would,
perhaps, have been needless to have made an express
provision against it in that case. Foster's C. L. 246.

Mr. Wickham regretted that so much time had been
consumed ; but hoped the court would acquit them of
any intention to waste it. When any illegal motion was
introduced by the opposite counsel, he felt it as a serious
duty due to his client to resist it with firmness. That
for his own part he should not forget that he was before
the circuit court of the United States, nor should he so
far lose his respect for their discernment as to bring
forward motions which he believed to be illegal, only
to waste the time of the court ; that he hoped none but
legal evidence would be suffered to be introduced ; none
but competent witnesses to be heard ; and if this rule
was not rigidly adhered to, what was to prevent the
counsel on the other side from producing any and every
kind of evidence that they pleased ?

It can not be supposed (said Mr. Wickham) that we
are afraid of this affidavit. What is in it, which has not
been already known and scattered in every loose sheet
of a newspaper throughout the United States? It is not
that we resist it in point of fact; but on the ground
of principle. We wish two points to be settled ; are
affidavits to be read at all on such a motion, and at
such a crisis of the prosecution as this? and if so, ought
they to be read if the witnesses themselves were present ?
Would it be right, if they were in the next street or the
next county ? Would it in fact be right if there was time
enough to produce the " viva voce " testimony itself?
Mr. Burr had a right to be confronted with General
Wilkinson. He had a right to cross-question and ex-
amine him on all the statements which he has made.
The government had power to bring him here. Why is



70 TRIAL OF AARON BURR

he not here? Ought not some satisfactory excuse to be
made for him ? He is an officer of this government ;
and the government might have procured his attend-
ance, as well by a special order as by a civi 1 . process.
Has any subpoena been taken out? inquired Mr. Wick-
ham, addressing himself to the clerk.

The clerk replied that no subpoena filled up with Gene-
ral Wilkinson's name had issued from his office ; but that
blank subpoenas had been taken out.

Mr. Wickham. No one knows, sir. There was time
enough to have him here. The mail travels from Wash-
ington to New Orleans in seventeen days. He might
have come ; but if he has not, why is not some satis-
factory excuse brought forward? We want, sir, to see
this gentleman cross-examined. We want to see him
confronted with other witnesses. This is one ground on
which we object to the production of this affidavit.

Another ground is that according to the decision of the
supreme court of the United States, this affidavit does not
bear upon the present motion. Mr. Swartwout, who was
said to be connected with Mr. Burr, was discharged by
them, because this affidavit did not apply to the charge
of treason. Are counsel, then, to be suffered to produce
testimony on any subject that they please? A third
objection is, that General Wilkinson does not relate a
single act committed in the district of Virginia. In Vir-
ginia ? no, nor anywhere else. The attorney for the
United States says that he. will prove the overt act
hereafter. But, sir, I repeat it that the rules of evidence
apply not only to the admissibility of evidence, but to
the order in which it is to be produced. Let them first
prove an overt act, if they can ; and then they are at
full liberty to prove the color of it.

Again, sir, this deposition is not the best evidence
which could be produced, and which the laws require.
General Wilkinson speaks of a cyphered letter, and of
its contents, as well as he can make them out. Now, sir.
where is this letter, and where is the key to it ? Why
are they not here ? Why are they not produced before
you ? For these reasons, Mr. Wickham hoped that the
court would not suffer the affidavit to be read in evi-
dence.



ARGUMENT OF MR, RANDOLPH. 71

Mr. Hay. We shall not, sir, be carried from our
course by speeches, however long or animated they. may
be. But, sir, permit me to give those gentlemen a little
information. Why talk of the affidavit before you ?
Do these gentlemen know that we can positively prove
the astonishment, the regret, and the denunciation which
escaped from Mr. Burr, when he first heard of the publi-
cation of his cyphered letter ! Let them first know what
we can prove, before they abondon themselves to their
triumph. General Wilkinson's affidavit is the first in the
series of our proofs, and it is for this reason that we
wish to commence with it.

Mr. Edmund Randolph. Sir, we do not know what
those gentlemen expect to prove ; but we do object to
the production of General Wilkinson's affidavit from
what is already known ; we know it to be perfectly in-
applicable to the present question. Sir, this species of
evidence is directly in the face of our bill of rights, and
of the constitution of the United States. " In all crimi-
nal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state
and district wherein the crime shall have been committed ;
which district shall have been previously ascertained
by law ; and to be informed of the nature and cause of
the accusation ; to be confronted with the witnesses
against him, 1 ' &c. Mr. Burr, then, sir, has a gene-
ral constitutional right to be confronted with the
witnesses against him. Let gentlemen show any excep-
tion to it, if they can. And what have they done ?
Why, they have shown here an obsolete and evaporated
affidavit, for which there is no necessity and no law.
The law positively declares that the best evidence is
always to be had ; that when a witness is attainable, his
affidavit is not to be admitted as testimony. We stand,
therefore, sir, upon the bill of rights. Gentlemen may,
indeed, attempt to evade its provisions by saying that
they can hereafter prove the material act ; but I hope
that this court will never countenance such illegal pro-
ceedings.

The chief justice stated that the supreme court of the
United States had already decided that an* affidavit
might be admitted under certain circumstances ; but



72 TRIAL OF AARON BURR.

they had also determined that General Wilkirr* ..*. 3
affidavit did not contain any proof of an overt act; that
he was certainly extremely willing to permit the attor-
ney for the United States to pursue his own course in
the order of drawing out his evidence, under a full con-
fidence that he would not waste the time of the court by
producing any extraneous matter ; but where was the
necessity of producing General Wilkinson's affidavit
first? If there was no other evidence to prove the overt
act, Wilkinson^s affidavit goes for nothing ; for the su-
preme court of the United States have already decided,
and by that decision he should have conceived himself
bound, even if he had dissented from it. Why, then,
produce this affidavit ?

Mr: Hay observed that there was a great difference
between the course prescribed by the court, and the one
which he would have pursued ; and that he seriously
believed, if he had been left to himself, he would at least
have satisfied the court itself that his own course was
the best. That as to General Wilkinson's affidavit, it
might even now be confronted with witnesses ; as
Messrs. Bollman and Swartwout were present, and would
say whether such and such conversations were ever held,
as are detailed in this affidavit. That he was now before
an examining court, and not before the petit jury; why,
then, the same strictness of evidence now as would be
required on the trial in chief? That he really believed
it was the intention of the opposite counsel, by dint of
long speeches, to attempt to drive him into their course;
but that they ought to know he never consulted the
counsel opposite to him ; and that they would be the
last persons in the world whose opinions he would con-
sult on the present occasion. That he seriously believed
that the evidence which he possessed would, beyond
the possibility of a doubt, convince the mind of the
court, not only of the existence of a traitorous design,
but of an overt act; and that all that he asked, was the
liberty of producing this evidence in the order which he
thought best. Is no part of this deposition, then, ad-
missible ? Not a word.

The chief justice observed that he thought no part of
it admissible at this time; that General Wilkinson's



MOTION TO EXCLUDE EVIDENCE. 73

affidavit either contained proof of the treasonable de-
sign, which was no proof of the overt act, or it related to
conversations, which, however strongly they might bear
upon those who held them, did not bear upon Mr.
Burr. 1

Mr. Hay asked how the court was to be satisfied of
the contents of any paper before it was read to them ?
An affidavit might contain both the proof of the overt
act, and a traitorous design. Was such a paper as this
to be read under the decision of the court? or how was
the court to know whether a paper might not contain
some proof of the overt act satisfactory to them, unless
they had an opportunity of inspecting that paper ?

Mr. Wickham. These gentlemen talk of delay ; and
yet they would produce to this court whole masses of
evidence that are perfectly irrevelant to the present
question. They declare that they will not pursue our
advice ; and that we are the last persons whom they
would take for counsellors. Sir, we do not ask them ;
all that we want is, that they would pursue the strict
principles of law and legal evidence. One of the best
rules of evidence is the order of evidence. If a man is
charged with a crime, must not the deed itself exist
before any testimony is produced as to the intention
with which it is done ? I hope that no testimony will
be suffered to be introduced before the act itself shall be
produced ; and I call upon this court to inforce the
strict order of evidence.

Mr. Burr observed that in point of fact, it was very
immaterial to him whether this affidavit was read or not;
that what he particularly wanted was, that the great
principles of evidence should be laid down, which would
be equally applicable to this and to all other affidavits.
He consented that the court might have this deposition
read if they thought proper.

Mr. Hay. This deposition will prove that it was one
of Aaron Burr's objects to seize upon Mexico. Then, if

1 The chief justice observed in a subsequent stage of this business, that an
idea had since struck his mind, which he thought it material to state ; that
he had not recollected that these conversations were said to be held by per-
sons who were said to be authorized by Mr. Burr ; and of course that their
conversations would bear upon him.



74 TRIAL OF AARON BURR.

we can have by some other evidence, that this object
was connected with an attack upon the United States,
is not this deposition of material importance in that
point of view ? If both must be proved, does it make



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 8 of 64)