Aaron Burr.

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

. (page 9 of 64)
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any difference which we begin with ? If a conspiracy
has been planned of a misdemeanor and of treason so
strongly combined that they are made to go on to-
gether, and the accomplishment of the one facilitates
the accomplishment of the other, is it not of material
consequence to prove the misdemeanor? I have not
myself seen Mr. Taylor or Mr. Allbright ; but I am cre-
dibly informed that they will prove an armed assemblage
of men on Blannerhasset's island.

The chief justice observed that if there was no fact or
no overt act of treason before the court, the court could
have nothing to say to the present motion ; that if
therefore, no fact was proved, the court could not grant
the motion for the prosecution ; that he should be ex-
tremely sorry to waste the time of the court, and to
launch into a variety of irrelevant subjects, when there
was actually no testimony to prove the overt act itself,
and thus to give the court a competent jurisdiction over
the case.

Mr. Hay. I am bound, sir, to obey the decision of
the court. However much I may lament that decision,
I shall certainly acquiesce in their order. If I under-
stand the court

The chief justice said that he was of opinion, that
unless there be a fact to be proved, no testimony ought
to be produced. The question before the court was
not whether there had been a treasonable intent, but an
overt act. That fact itself must be proved before there
can be any treason, or any commitment for treason.
General Wilkinson's affidavit was, accordingly, put
aside.

Mr. Hay then called Peter Taylor, who was Mr.
Blannerhasset's gardener, and Jacob Allbright, a laborer,
who had worked on his island, who gave their testi-
mony. [It is omitted here, because it will be fully
detailed in a subsequent and more important part of the
report.] After these witnesses had been examined, the
affidavit of Jacob Dunbaugh was offered, which was



OPINION ON MOTION. 75

"taken on the fifteenth, of April, 1807, before B. Cenas,
a justice of the peace," to which was subjoined a cer-
tificate of Governor William C. C. Claiborne, dated " at
New Orleans, the sixteenth of April, 1807," stating "that
B. Cenas was a justice of the peace for the county of
New Orleans."

To the reading of this affidavit several objections were
taken by the counsel for Mr. Burr, but those most relied
on were the following: 1st. That an affidavit could,
under no circumstances, be read, unless it were shown
that the witness could not be produced, and that the gov-
ernment had not had sufficient time to procure the atten-
dance of Jacob Dunbaugh. 2d. That though the gov-
ernor of New Orleans had certified that B. Cenas was a
justice of the peace, yet he had not said that it was the
same B. Cenas before whom that affidavit was taken.
3rd. That B. Cenas had not stated in the caption of his
certificate, or elsewhere, that the affidavit was taken " at
New Orleans," so as to show that he was acting within
his jurisdiction.

The argument on these points was continued to the
adjournment of the court, who took time to consider the
subject till the next day.

THURSDAY, MAY 28, 1807.

Luther Martin appeared as the counsel of Mr. Burr.

On the motion made yesterday, to exclude the evi-
dence of Jacob Dunbaugh, the chief justice delivered the
opinion of the court as follows :

On the part of the United States, a paper, purporting
to be an affidavit, has been offered in evidence, to the
reading of which two exceptions are taken :

ist. That an affidavit ought not to be admitted, where
the personal attendance of the witness could have been
obtained.

2d. That this paper is not so authenticated as to en-
title itself to be considered as an affidavit.

That a magistrate may commit upon affidavits has
been decided in the supreme court of the United States,
though not without hesitation. The presence of the
witness, to be examined by the committing justice, con-



7 6 TRIAL OF AARON BURR.

fronted with the accused, is certainly to be desired ; and
ought to be obtained, unless considerable inconvenience
and difficulty exist in procuring his attendance. An ex
parte affidavit, shaped, perhaps, by the person pressing
the prosecution, will always be viewed with some sus-
picion, and acted upon with some caution ; but the
court thought it would be going too far to reject it
altogether. If it wa obvious that the attendance of the
witness was easily attainable, but that he was inten-
tionally kept out of the way, the question might be
otherwise decided.

But the particular case before the court does not ap-
pear to be of this description. The witness resides at a
great distance; and there is no evidence that the mate-
riality of his testimony was known to the prosecutors or
to the executive in time to have directed his attendance.
It is true that general instructions, which would apply to
any individual, might have been sent, and the attend-
ance of this, or any other material witness obtained un-
der those instructions ; but it would be requiring too
much, to say that the omission to do this ought to ex-
clude an affidavit. This exception, therefore, will not
prevail.

The second is that the paper is not so authenticated
as to be introduced as testimony on the question, which
concerns the liberty of a citizen. This objection is
founded on two omissions in the certificate.

The first is, that the place at which the affidavit was
taken does not appear.

The second, that the certificate of the governor does
not state the person who administered the oath to be a
magistrate ; but goes no farther than to say that a per-
son of that name was a magistrate.

That for aught appearing to the court, this oath may,
or may not, in point of fact, have been legally adminis-
tered must be conceded. The place where the oath was
administered, not having been stated, it may have been
administered where the magistrate had no jurisdiction,
and yet the certificate be perfectly true. Of consequence,
there is no evidence before the court that the magis-
trate had power to administer the oath, and was acting
in his judicial capacity.



OPINION ON MOTION. 77

/

The effect of testimony may often be doubtful, and
courts must exercise their best judgment in the case ;
but of the verity of the paper there ought never to be a
doubt. No paper written ought to gain admittance into
a court of justice as testimony, unless it possesses those
solemnities which the law requires. Its authentication
must not rest on probability, but must be as complete
as the nature of the case admits of; this is believed to
be a clear legal principle. In conformity with it is, as the
court conceives, the practice of England and of this
country, as is attested by the books of forms ; and no
case is recollected, in which a contrary principle has
been recognized. This principle is, in some degree, il-
lustrated by the doctrine with respect to all courts of
limited jurisdiction. Their proceedings are erroneous
if their jurisdiction be not conclusively shown. They
derive no validity from the strongest probability that
they had jurisdiction in the case; none, certainly, from
the presumption, that being a court, an usurpation of
jurisdiction will not be presumed. The reasoning ap-
plies in full force to the actings of a magistrate, whose juris-
diction is local. Thus, in the case of a warrant, it is
expressly declared that the place where it was made
ought to appear.

The attempt to remedy this defect, by comparing the
date of the certificate given by the magistrate with that
given by the governor, can not succeed. The answer
given at bar to this argument, is conclusive ; the certifi-
cate wants those circumstances, which would make it
testimony ; and without them no part of it can be re-
garded.

The second objection is equally fatal. The governor
has certified that a man of the same name with the per-
son who has administered the oath is a magistrate ; but
not, that the person, who has administered it, is a magis-
trate.

It is too obvious to be controverted that there may be
two or more persons of the same name, and, conse-
quently, to produce that certainty which the case
readily admits of, the certificate of the governor ought to
have applied to the individual who administered the
oath. The propriety of this certainty and precision in



78 TRIAL OF AARON BURR.

a certificate, which is to authenticate any affidavit to be
introduced into a court of justice, is so generally ad-
mitted that I do not recollect a single instance in which
the principle has been departed from. It has been said
that it ought to appear that there are two persons of the
same name, or the court will not presume such to be the
fact. The court presumes nothing. It may or may not
be the fact, and the court can not presume that it is not.
The argument proceeds upon the idea that an instru-
ment is to be disproved by him who objects to it, and
not that it is to be proved by him who offers it. Noth-
ing can be more repugnant to the established usage of
courts How is it to be proved that there are two per-
sons of the name of Cenas in the territory of New Orleans ?
If, with a knowledge of several weeks, perhaps months,
that this prosecution was to be carried on, the executive
ought not to be required to produce this witness, ought
the prisoner to be required, with the notice of a few
hours, to prove that two persons of the same name reside
in New Orleans?

It has been repeatedly urged that a difference exists
between the strictness of law, which would be applicable
to a trial in chief, and that which is applicable to a
motion to commit for trial. Of the reality of this dis-
tinction, the present controversy affords conclusive
proof. At a trial in chief, the accused possesses the val-
uable privilege of being confronted with his accuser.
But there must be some limit to this relaxation, and it
appears not to have extended so far as to the admission
of a paper not purporting to be an affidavit, and not
shown to be one.

When it is asked whether every man does not believe
that this affidavit was really taken before a magistrate ?
it is at once answered that this can not affect the case.
Should a man of probity declare a certain fact within his
own knowledge, he would be credit ed by all who knew
him ; but his declaration could not be received as testi-
mony by the judge who firmly believed him. So a man
might be believed to be guilty of a crime, but a jury
could not convict him, unless the testimony proved him
to be guilty of it. This judicial disbelief of. a probable
circumstance does not establish a wide interval between



OPINION ON MOTION. 79

common law and common sense. It is believed in this
respect to show their intimate union.

The argument goes to this, that the paper ihall be re
ceived and acted upon as an affidavit, not because the oath
appears to have been administered according to law, but
because it is probable that it was so administered.

This point seems to have been decided by the consti-
tution : " The right of the people," says that instru-
ment, " to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures,
shall not be violated ; and no warrants shall issue but
upon probable cause, supported by oath or affirmation,
amd particularly describing the places to be searched,
and the persons or things to be seized." The cause ot
seizure is not to be supported by a probable oath, or an
oath that was probably taken, but by oath absolutely
taken. This oath must be a legal oath ; and if it must
be a legal oath, it must legally appear to the court to be
so. This provision is not made for a final trial ; it is
made for the very case now under consideration. In the
cool and temperate moments of reflection, undisturbed
by that whirlwind of passion with which in those party
conflicts which most generally produce acts or accusa-
tions of treason, the human judgment is sometimes over-
thrown, the people of America have believed the power
even of commitment to be capable of too much oppres-
sion in its execution, to be placed without restriction
even in the hands of the national legislature. Shall a
judge disregard those barriers which the nation has
deemed it proper to erect ?

The interest which the people have in this prosecu-
tion, has been stated ; but it is firmly believed that the
best and true interest of the people is to be found in a
rigid adherence to those rules which preserve the fair-
ness of criminal prosecutions. in every stage.

If this was a case to be decided by principle alone,
the court would certainly not receive this paper ; but
if the point is settled by decision, it must be conformed
to.

It has been said to be settled in the supreme court of
the United States by admitting the affidavit of Wilkin-
son, to which an exception was taken, because it did



So TRIAL OF AARON BURR.

not appear that the magistrate had taken the oaths pre-
scribed by the law. It was said that as by law he could
not act until he had taken the oaths, and he was found
acting, it must be presumed that this prerequisite was
complied with ; that is, that his acting as a magistrate
under his commission was evidence that he was author-
ized so to act. It will not be denied that there is much
strength in the argument ; but the cases do not appear
to be precisely parallel.

The certificate that he is a magistrate, and that full
faith is due to his acts, implies that he has qualified,
if his qualification is necessary to his being a complete
magistrate, whose acts are entitled to full faith and
credit.

It is not usual for a particular certificate that a magis-
trate has qualified, to accompany his official acts.

There is no record of his qualification, and no parti-
cular testimonial of it could be obtained.

These observations do not apply to the objections
which exist. But it is said that the certificate is the
same with that in Wilkinson's affidavit.

If this objection had been, taken and overruled, it
would have ended the question ; but it was not taken,
so far as is now recollected, and does not appear to have
been noticed by the court. It is not recollected by the
judge who sat on that occasion to have been noticed.
A defect, if it be one, which was not observed, can not
be cured by being passed over in silence.

The case in Washington was a civil case, and turned
upon the point, that no form of the commision was pre-
scribed, and consequently, that it was not necessary to
appear on the face of it that it was directed to magis-
trates.

That it was the duty of the clerk to direct it to
magistrates, and he should not be presumed to have
neglected his duty, in a case in which his perf6rmance of
it need not appear on the face of the instrument.

That the person intending to take this exception,
ought to have taken it sooner, and not surprise the op-
posite party when it was too late to correct it.

But the great difference is that the privy examination
was a mere ministerial act ; the administering an oath is



MOTION TO BIND OVER. 81

a judicial act. The court is of opinion that the paper,
purporting to be an affidavit made by Dunbaugh, can
not be read, because it does not appear to be an oath.

Mr. Hay observed that as the examination of Mr. Burr
for treason had already taken up much time without any
progress in the business, and, from the disposition mani-
fested by his counsel, it might last not only ten days,
but even ten years longer, he considered it his duty, from
information which he had received that morning, to sug-
gest to the court the propriety of binding Mr. Burr in a
further recognizance from day to day, till the examina-
tion could be ended. He stated, on the authority of a
letter just come to hand from the secretary at war, that
General Wilkinson, with several other witnesses, might
be expected here between the 28th and 3Oth of this
month. This circumstance, said he, renders it essential
that he should be considered in custody, until he gives
security that his person shall be forthcoming to answer
the charge of treason against the United States. The
gentlemen who appear as counsel for Mr. Burr, may be,
and no doubt are, sincere in the opinion they have ex-
pressed, and that he will not shrink from the charges
exhibited against him, and will not in any conjuncture
of circumstances which may occur, fly from a trial ; but
those gentlemen must pardon me for saying that I enter-
tain a very different opinion. I must believe that his
regard for the safety of his own life, would, if he perceived
it in danger, prevail over his regard for the interest of
his securities. I give notice, therefore, that I consider
him as being already in custody to answer the motion I
.have made for his commitment, and that he can not be
permitted to go at large without giving security for his
appearance from day to day. His situation now is the
same as that when he was first apprehended and brought
before a single judge for the purpose of examination.
Your honor at that time considered him as in custody,
and bound him over from day to day; and I only con-
tend that the same course should be pursued at this
time.

Mr. WickJtam. The gentleman thinks he has obtained
the effect of his motion, merely by having made it. I
can not oerceive the propriety of a motion to compel Mr.



82 TRIAL OF AARON BURR.

Burr to give bail in any sum, before the probable cause
to believe him guilty of treason has been shown. When
he was brought before your honor for examination, you
conceived the sum of five thousand dollars sufficient secur-
ity for his daily appearance. But a recognizance has al-
ready been given in double that sum, binding him not to
depart without the leave of this court. Yet now, although
no probable proof of treason has been exhibited, Mr.
Hay requires the court to demand of Mr. Burr additional
security. I trust that such a motion will not prevail.

Mr. Martin. It has been already decided, by the
supreme court of the United States, that not a single ex-
pression in Wilkinson's affidavit amounts to any proof
of the charge of treason. The motion of the gentleman
amounts to this : " We have no evidence of treason, and
are not ready to go to trial for the purpose of proving it ;
we therefore move the court to increase the bail."

Mr. Randolph. The first motion of the counsel for the
United States was to commit Mr. Burr on the ground of
probable cause only. This goes a step farther, and
wishes the same thing to be done on the ground of a
probable cause ; but we trust that we shall not be de-
prived of our liberty, or held to bail on a mere uncertain
expectation of evidence.

Mr. Mac Rae. The gentlemen seems to consider the
recognizance already taken as sufficient for all circum-
stances, and that Mr. Burr will comply with it at any
rate ; but we have not the same expectation that he will
appear, in case he discovers that sufficient evidence for
his conviction has been obtained. When they speak of
the sum in which he was bound on a former occasion,
they do not recollect the circumstances which induced
the judge to take bail in so small a sum ; it was ex-
pressly mentioned by your honor, that his having been
brought to a place at a distance from the circle of his
friends, and the nature of the offense (a misdemeanor
only) induced you to hold him to bail in that sum ; and
the charge of treason was altogether excluded from view
in taking the recognizance.

Mr. Wirt. Mi. Wickham, in saying that my friend
Mr. Hay thought he had obtained the object of his
motion merely by having made it, clearly misconceived



MOTION TO BIND OVER. 83

the object of the motion now before the court. The
motion we made yesterday was to commit Mr. Burr on
a charge of treason ; our motion to-day is to hold him
in custody to abide the opinion which the court may
pronounce upon the question of commitment. The
gentlemen say that we have secured the object we have
in view by the recognizance already taken. The court
expressly excluded the charge of treason from that
recognizance, which applies only to the misdemeanor.
Let us suppose that the motion to commit Mr. Burr
was made out of court before a single magistrate ; if
the examination of witnesses in support of the motion
occupied more than one day, would the magistrate let
him go at large while it was depending ? Would he not
rather either have him retained in custody, or take secu-
rity for his appearance, and renew it every evening until
the motion should be determined ? This is all that we ask
of the court to do. The recognizance which has been
given applies to the misdemeanor only. If therefore it
should be forfeited by his going away, we should have
had no security for his answering the charge of treason ; a
much more enormous offense, and attended with a very
different punishment. We contend therefore that ad-
ditional security ought to be taken.

Mr. Botts. I shall endeavor to place this subject in
some measure in a new light. It has been said that the
former examination of Mr. Burr did not preclude this
motion ; if so, every new edition of the volume of evi-
dence would justify a renewal of the motion to demand
additional bail. Thus motions might be heaped upon
motions, and bail upon bail, until the perpetual im-
prisonment of the accused might be the consequence.

It was a practice in former times, to drown a person
accused of being a witch in order to try her. I think
that practice is renewed on the present occasion, in
another shape ; a motion is made to commit Mr. Burr
for treason, before the evidence can be gone through by
which alone it can be ascertained that he ought to be
committed. The court are requested to predetermine
the effect of the evidence, and commit, before they have
decided whether they ought to commit: besides, no
warrant has been issued against Mr. Burr on the present



84 TRIAL OF AARON BURR,

occasion ; he has not been arrested for treason, and
therefore can not be considered as in custody for that
offense.

Mr. Hay then made some further observations on the
importance of the charge of treason (which is of the
highest nature, involving the reputation and life of the
prisoner), and the great necessity therefore of the most
ample security to compel his appearance to answer it.
He stated that this examination might last many days ;
that after the court had made up an opinion that Mr.
Burr ought to be committed, he might march off and
leave the court to pronounce it ; so that an order to
commit might be made by the court, and no person
found on whom it could be executed. Such an event,
he said, would excite the laughter and scorn of all the
people of the United States. He mentioned that an
immense expense had been incurred by the government
in collecting witnesses and preparing for this trial ; that
therefore he did not wish the whole of that expense to
be thrown away. General Wilkinson is expected to
arrive between the 28th and 3Oth of this month : if he
arrives, both bills of indictment will be immediately sent
to the grand jury. This is the first instance in which
the ministers of the law have been requested to say to
the accused, "You may do as you please, and go at
large until we pronounce sentence." The gentlemen
contend for new principles in favor of Mr. Burr ; but I
trust that greater privileges will not be granted to him
than to the humblest deluded victim of his ambition.
The circumstance that he has already entered into a
recognizance to answer for a misdemeanor, is no argu-
ment to exempt him from entering into another on a
charge of treason. Shall the accused clear himself of a
responsibility for one crime by his having committed or
being charged with another? This would indeed be to
violate that maxim of law, that no man shall be bene-
fited by his own wrong. Mr. Botts has contended that
there is a difference between the case on examination
and that now before the court ; that in the first instance
a warrant had been issued, but none in the present ; but
a warrant is certainly unnecessary, now that the prisoner
is before the court. The object of a warrant is to bring



OPINION ON THE MOTION. 85

\

him before you. When this has been done, it \sfunctus
officio ; here is Mr. -Burr before the court. It is there-
fore immaterial how he came before it; but he ought
to be considered in custody until discharged by the due
course of law.

The chief justice delivered the opinion of the court,
the substance of which was as follows : It is certainly
necessary that a person accused should be retained in



Online LibraryAaron BurrTrial of Aaron Burr for treason : printed from the report taken in short hand (Volume 1) → online text (page 9 of 64)