Title: The Trial of Aaron Burr
Author: Brady, Joseph P.
Language: English
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THE TRIAL OF AARON BURR

[Illustration]

[Illustration: CHIEF JUSTICE MARSHALL

  _Frontispiece_
]



  THE TRIAL
  OF AARON BURR


  BY

  JOSEPH P. BRADY

  _Clerk of the United States District Court for the
  Eastern District of Virginia_


  [Illustration]


  NEW YORK
  THE NEALE PUBLISHING COMPANY
  1913



  Copyright, 1913, by
  THE NEALE PUBLISHING COMPANY



PREFACE


Among the records of the United States Courts at Richmond, Virginia,
are the original papers in the case of the “United States versus Aaron
Burr, Indictment for Treason.” The tawny fingers of time have dealt
gently with these papers, and although more than a century old they are
still in a good state of preservation.

The story of the trial of Aaron Burr has often been written, and there
is little new that can be added; but these old manuscripts and official
documents, so historic in their character, should at least in some
form survive the ravages of time. It is with this thought in mind, and
with the hope that possibly some fact not already recorded in history
might be disclosed by the original papers, that this brief history is
written.



LIST OF ILLUSTRATIONS


  Chief Justice Marshall      _Frontispiece_

                                                                  FACING
                                                                    PAGE
  Warrant for arrest of Burr                                          20

  Affidavit of Burr for subpœna _duces tecum_ for President
  Jefferson                                                           40

  Subpœna _duces tecum_ for President Jefferson                       50

  Subpœna _duces tecum_ for President Jefferson (continued)           50

  Findings of the Grand and Petit Juries                              70



THE TRIAL OF AARON BURR


On the evening of the 26th of March, 1807, Aaron Burr, attended by
a military guard of nine men, under the command of Major Nicholas
Perkins, who had been largely instrumental in his arrest, arrived
in the City of Richmond, Virginia. Immediately upon his arrival he
was lodged in the Eagle Tavern, the leading hostelry of its time in
that city, where he remained confined until March 30th, when he was
delivered to the civil authorities by virtue of a warrant issued by
Chief Justice Marshall.

The preliminary examination of Burr was private. The warrant was
served on him in his apartment by Major Scott, the Marshal of the
Virginia District, who, after informing him of the object of his
visit, conducted him to another room, where he was brought before
the Chief Justice. The few persons present were Cæsar A. Rodney,
Attorney-General of the United States; George Hay, the United States
Attorney for the Virginia District; Edmund Randolph and John Wickham,
counsel for the prisoner; the United States Marshal and his two
deputies; and a few friends of the counsel for Burr.

The evidence introduced on behalf of the prosecution was a copy of the
record in the case of Bollman and Swartout in the Supreme Court of the
United States, which contained the depositions of General Eaton and
General Wilkinson directly connecting Burr with the offense charged
against him. No verbal testimony was heard, except that of Major
Perkins, who told of the arrest of the prisoner and of his conveyance
of him to Richmond.

At the conclusion of the evidence a motion in writing was submitted by
Mr. Hay for the commitment of the accused on two charges, viz:--

First. For a high misdemeanor, in setting on foot, within the United
States, a military expedition against the dominions of the King of
Spain, a foreign prince, with whom the United States, at the time of
the offense, were, and still are, at peace.

Second. For treason in assembling an armed force, with a design to
seize the city of New Orleans, to revolutionize the territory attached
to it, and to separate the western from the Atlantic states.

It soon developed that this motion would cause considerable discussion,
and as previously agreed upon by counsel, with the approval of the
Chief Justice, the further hearing of the case was adjourned to the
House of Delegates in the Capitol, where all subsequent proceedings
were had.

The argument on the motion lasted two days. It was opened by Mr. Hay
for the United States. He was followed by Mr. Wickham and Mr. Randolph
for the accused. Colonel Burr spoke about ten minutes in his own
behalf, and Mr. Rodney, the Attorney-General of the United States,
closed the discussion.

The third day of the trial, the Chief Justice delivered his written
opinion. “On an application of this kind,” says he, “I certainly
should not require that proof which would be necessary to convict the
person to be committed on a trial in chief; nor should I even require
that which should absolutely convince my own mind of the guilt of the
accused; but I ought to require, and I should require, that probable
cause be shown; and I understand probable cause to be a case made out
by proof furnishing good reason to believe that the crime alleged has
been committed by the person charged with having committed it.” The
Chief Justice then reviews the testimony of General Eaton and General
Wilkinson in the Swartout and Bollman case to show how far these
charges are supported by probable cause, and in conclusion delivers
himself as follows: “I shall not therefore insert in the commitment the
charge of high treason, since it will be entirely in the power of the
Attorney-General to prefer an indictment against the prisoner for high
treason should he be furnished with the necessary testimony.”

Burr was now called upon to give bond, and the amount to be required
of him gave rise to much discussion. The Chief Justice stated, “that
he wished it to be neither too large to amount to oppression, nor
too small to defeat the objects of justice.” It had occurred to
him that the sum of ten thousand dollars would perhaps avoid both
these extremes. Mr. Hay earnestly insisted upon a larger amount, but
the amount was fixed at ten thousand. Burr was then bailed for his
appearance at the next term of the Circuit Court of the United States
to convene at Richmond on the 22d of May next, to answer the charge of
high misdemeanor.

Aaron Burr was now at liberty. President Jefferson was enraged at the
result of the first trial. The feeling between the partisans of the
Administration and the Federalists, to which political party Marshall
belonged, was rampant. The friends of Jefferson charged Marshall
with having permitted his political bias and personal dislike of the
President to warp his judgment in favor of Burr throughout the trial,
and Jefferson in one of his letters to Senator Giles, written a few
days after Burr’s first examination at Richmond, refers to the _tricks_
of the judges in hastening the trial so as to clear Burr. It was
evident that Jefferson was to be the real prosecutor of Burr, and had
made up his mind to convict him at whatever cost.

The 22d of May, 1807, the United States Circuit Court for the Virginia
District convened in the House of Delegates in the City of Richmond,
Virginia, with Chief Justice Marshall and Cyrus Griffin, District
Judge, on the bench.

Long before the hour the Court was to meet the hall and the entrances
to the Capitol were thronged with people. Not a few of them were
witnesses and persons summoned as grand jurors, while others were
attracted by the notoriety of the trial. There could be seen John
Randolph, of Roanoke, “the brilliant, eccentric leader of the Quids,”
in the House, and afterwards United States Senator from Virginia;
Andrew Jackson, who was loud in his denunciation of Jefferson and
his administration for “persecuting his innocent friend”; Winfield
Scott, then a young lawyer just admitted to practice; General Eaton,
with a grudge against the Government for its failure to pay his claim
for services and cash advanced while consul in Barbary, and with
whom Burr had talked with great freedom about his plans; Commodore
Truxton, another disgruntled officer of the Government in whom Burr
had confided; Col. Morgan, a valiant old campaigner from the West,
and his two stalwart sons, whose services Burr tried to enlist, but
whom Jefferson credited with giving him the first intimation of Burr’s
designs; John Graham, who had been sent out by the Administration to
the Mississippi territory as its confidential agent to circumvent
Burr and expose the conspiracy; Colonel Dupiester, one of the leading
spirits in the plot and Burr’s trusted friend and ally; Jonathan
Dayton, formerly speaker of the House of Representatives and Ex-Senator
from the State of New Jersey, and John Smith, lately a Senator from
Ohio, both friends of Burr and prominent in the conspiracy with him;
Dr. Erick Bollman, an educated German, who had recently distinguished
himself by a gallant but unsuccessful attempt to rescue Lafayette
from prison in the castle of Olmutz, Austria, and in whom Burr had
confided. Jefferson expected Bollman to give testimony that might
criminate himself, and during the trial sent through District Attorney
Hay a pardon for him, which Bollman indignantly refused to accept. And
thither also came Governor Alston of South Carolina, and his wife, the
beautiful and accomplished Theodosia, the only daughter of Aaron Burr;
who had fled to his side the moment she had heard of his arrest.

The court was formally opened at half past twelve o’clock, and probably
there never was such an array of learning and legal attainments as
was present on that occasion. Foremost and overshadowing all was John
Marshall, the Chief Justice. “Gentlemen of the profession,” said
Parton, “who witnessed the trial, who saw the effective dignity with
which the judge presided over the court, who heard him read those
opinions, so elaborate and right, though necessarily prepared on the
spur of the moment, regarded it as the finest display of judicial skill
and judicial rectitude which they had ever beheld.”

Seated at the bar and appearing in behalf of the United States were
Colonel George Hay, William Wirt and Alexander MacRae.

Colonel Hay was a son-in-law of James Monroe, who was afterwards
President of the United States. He was a lawyer of great industry
and much ability, and bore the laboring oar in the trial. He was a
zealous partisan of Jefferson, and was assisted in the prosecution by
almost daily communications from him. Later he was appointed United
States judge for the Virginia district. Mr. Wirt was present at the
personal request of President Jefferson. He was the most eloquent and
accomplished advocate then at the Richmond bar. There was no one whose
rising to speak “so instantaneously hushed the spectators to silence.”
“A handsome, fortunate, brilliant, high-minded man was William Wirt,”
says Parton, “the toil of whose life it was to achieve those solid
attainments which alone make brilliancy of utterance endurable in a
court of justice.” Mr. MacRae, the third attorney for the government,
was then Lieutenant-Governor of Virginia, and while less able than
his two colleagues, was a lawyer of “respectable ability and a sharp
tongue.”

On the side of the defense were the greatest lawyers of the time.
The best known of them was perhaps Edmund Randolph. Mr. Randolph had
been a delegate to the Continental Congress and to the Philadelphia
Constitutional Convention, Attorney-General and Governor of Virginia,
and Attorney-General and Secretary of State under Washington. He was
a man of great experience and learning. Associated with him from the
day of Burr’s arrival in Richmond was John Wickham, grandfather of
the late General W. C. Wickham and great-grandfather of Hon. Henry
T. Wickham, an eminent member of the present bar of Virginia. Mr.
Wickham was regarded by many as the ablest lawyer at the Virginia
bar. “The qualities,” says Mr. William Wirt in the _British Spy_, “by
which Mr. Wickham strikes the multitude are his ingenuity and his
wit. But those who look more closely into the anatomy of his mind,
disclose many properties of much higher dignity and importance. This
gentleman, in my opinion, unites in himself a greater diversity of
talents and acquirements than any other at the bar in Virginia.”
Another great lawyer of counsel for Burr, and probably the greatest
one of his day, was Luther Martin of Maryland. He and Burr had formed
a friendship about two years before in Washington, when Justice Chase
of the Supreme Court of the United States was impeached by the House
of Representatives and tried by the Senate for abuse of his office in
certain political trials. Burr was then Vice-President of the United
States, and presided over the Senate in that celebrated proceeding,
says a contemporary, “with the dignity and impartiality of an angel,
but with the rigor of a devil.” Martin was the leading counsel for
Justice Chase, and greatly distinguished himself. Conspicuous also
was Benjamin Botts, father of the distinguished John Minor Botts, who
although the youngest man on the side of the defense, had already
become eminent in his profession.

The other counsel for Burr were Charles Lee, an Ex-Attorney-General
of the United States, and a lawyer of much learning; “Jack” Baker,
who was more of a “good fellow” than lawyer; and Washington Irving,
then attracting some attention in the field of letters, who to use his
own words, “went to Richmond on an informal retainer from one of the
friends of Col. Burr,” although, as he said, “his client had little
belief in his legal erudition, and did not look for any approach to a
professional debut, but thought he might in some way or other be of
service with his pen.”

But of the defense _facile princeps_ was Burr himself. He was keenly
alive to every proceeding, and while the burden fell upon others, no
move was made, or point conceded, without his sanction. Mr. Robertson,
the reporter of the trial, says: “Among these stood Aaron Burr, proudly
pre-eminent in point of intelligence to his brethern of the bar, who
had been vice-president of the United States, and now accused of the
highest and darkest crime in the criminal code. Standing before the
Supreme tribunal of his country, and with the eyes of the nation
upon him, he was, in the opinion of many, already condemned. He had
the talent and tact, and the resources of the Government to contend
against, and every faculty of his mind was exerted in his own defense.
The magnitude of the charge, the number of persons involved, the former
high standing and extraordinary fortunes of the accused, had excited an
interest in the community such as never before had been known.”

[Illustration: WARRANT FOR ARREST OF BURR

  _Facing p. 20_
]

The Marshal had summoned for service on the grand jury the most
intelligent and representative citizens of the Commonwealth.
Prominent among them was William B. Giles. He had served in both
branches of the Legislature of Virginia; had been Governor of the State
of Virginia; and representative and senator in the Congress of the
United States. Senator Giles was a partisan of Jefferson, a member of
what John Randolph called “the President’s back-stair cabinet.” He was
the leader of the republicans in the Senate, and had been foremost in
the assaults on the “last stronghold of Federalism--the Judiciary.”

When Senator Giles was called on the _voir dire_ he was challenged
personally by Burr. Burr claimed the same right of challenging grand
jurors for favor that he had of challenging petit jurors, and was
sustained in his position by the Chief Justice. His objection to Giles
was that, on occasions in the Senate, he had pronounced his opinion on
certain documents sent to that body by President Jefferson attributing
to Burr treasonable designs, and upon such information advocating the
suspension of the writ of _habeas corpus_. He stated that he could
produce evidence, if necessary, of public utterances of Senator Giles
confirming these views. Senator Giles was stricken from the panel.

Another former United States Senator, and afterwards Governor of
Virginia, summoned as a grand juror, was Wilson Cary Nicholas. He was
a personal enemy of Burr, and when his name was called Burr challenged
him. Colonel Nicholas had served three years in the Senate when Burr
presided over it, and had taken a very decided part in favor of the
election of his successor. He had freely expressed his suspicions, both
in correspondence and publicly, of Colonel Burr’s probable objects in
the west. He was rejected.

Some of the other distinguished citizens of Virginia summoned by the
Marshal, and who served on the grand jury, were Littleton Waller
Tazewell and James Pleasants, both afterwards United States Senators
and Governors of Virginia; Joseph C. Cabell, one of the founders with
Jefferson of the University of Virginia; William Daniel, father of
the late Judge William Daniel of the Court of Appeals of Virginia,
and grandfather of John Warwick Daniel, the lamented senator from
Virginia; and Colonel James Barbour, afterwards Governor of Virginia,
United States Senator, Secretary of War under John Quincy Adams, and
Minister to England.

The general belief in the guilt of the accused was manifested at
the very beginning of the trial. The proclamations and the special
messages of President Jefferson to Congress, and the depositions
of Generals Eaton and Wilkinson had had their effect on the public
mind. A number of citizens summoned for service on the grand jury
frankly admitted they had prejudged the case, and in consequence of
such disqualifications and excuses the original panel was reduced to
fourteen.

The court, being now without a legal grand jury in attendance, directed
the Marshal to summon from the bystanders two additional persons.
The Marshal summoned and returned John Randolph and William Foushee.
Mr. Randolph was named as foreman, but upon being asked to take the
oath, requested to be excused from serving. He had formed an opinion
concerning the nature and tendency of certain transactions imputed to
Mr. Burr. He had a strong prepossession, but thought he could divest
himself of it upon evidence. Mr. Burr observed that he was afraid they
would be unable to find any man without this prepossession. “The rule
is,” said the Chief Justice, “that a man must not only have formed, but
declared an opinion, in order to exclude him from serving on the jury.”
Mr. Randolph replied that he had no recollection of having declared
one, and he was thereupon sworn as foreman.

Dr. Foushee when called to be sworn was found to be disqualified, and
was permitted to withdraw. Colonel James Barbour was called in his
stead and accepted.

The selection of the grand jury having been completed, the grand jury
was duly sworn by the clerk. It was composed of the following citizens:

John Randolph, Foreman, Joseph Eggleston, Joseph C. Cabell, Littleton
W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough,
William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford
Beverly, John Ambler, Thomas Harrison, Alexander Shephard and James
Barbour.

The Chief Justice promptly delivered an appropriate charge to the
grand jury. He dwelt more particularly upon the definition and nature
of treason, and the testimony requisite to prove it. He said in part:
“To you by the Constitution and laws of our country is confided the
important right of accusing those whose offenses shall have rendered
them subject to punishment under the laws of the United States. It
is on you that the fundamental principles on which the stability of
our political institutions and the safety of individuals most greatly
depend. For to little purpose would laws be formed to protect the
innocent of the body politic from crimes of the worst nature if a
misplaced nonentity should control the execution of them. Juries,
gentlemen, as well as judges, should be superior to every temptation,
which hope, fear or compassion, may suggest; who will allow no
influence to balance their love of justice; who will follow no guide
but the laws of their country.

“In outlining to you, gentlemen of the jury, those offenses which are
cognizable in the court, and which may scarcely be noticed by you,
the first on the calendar, as well as the highest known atrocity,
is treason against the United States. With a jealousy peculiar to
themselves the American people have withdrawn the subject from the
power of their legislature, and have declared in their Constitution
that ‘treason against the United States shall consist only in levying
war against them, or in adhering to their enemies, giving them aid and
comfort.’”

After the grand jury had retired Colonel Burr addressed the court
on the propriety of specially instructing them in regard to the
admissibility of certain evidence, which he stated would be laid before
the grand jury by the attorney for the United States. Mr. Hay opposed
this application. He said he could never agree to it, and he trusted
the court also would never sanction such a suggestion; that Colonel
Burr stood before the court on the same footing as any other citizen,
and he hoped the court would not distinguish between his case and that
of any other. The question was postponed for further discussion. The
court then adjourned to the following morning.

The court met the next day and the grand jury also appeared. It became
apparent that nothing effectual could be done until the arrival of
General Wilkinson, the most important witness for the Government. The
grand jury were therefore adjourned from day to day until he put in his
appearance.

Meanwhile Mr. Hay had moved to commit Burr on a charge of high treason
against the United States. On his preliminary examination he was bailed
on the charge of misdemeanor, but said Mr. Hay “there was no evidence
of an overt act. The evidence is different now.”

This motion was discussed at length throughout the day, and provoked
one of the most eloquent debates of the whole trial and revealed the
political passions of the day. Mr. Botts “begged leave to make a few
remarks on this extraordinary application, and the pernicious effects
such an extraordinary measure, if generally practised, would inevitably
produce. The organ particularly appropriated for the consideration
of the evidence which the motion calls for, is the grand jury; and
the motion is to divest the grand jury of the office, which the
Constitution and laws have appropriated to them, and to devolve it
upon the court. The grand juror’s oath is to inquire into all crimes
and misdemeanors committed within the district of the State of which
they are freeholders. Their office is to perform that which the court
is now called upon to perform. To them belongs the exclusive duty of
inquiring and examining into all species of evidence, which may lead
to a conviction of the crimes of which Colonel Burr is now charged;
but there is a great objection to the exercise of this examining and
committing power by a high law officer, who is to preside upon the
trial, when the grand jury, the appropriate tribunal, is in session.”

After Mr. Botts had taken his seat, Mr. Hay in response to an inquiry
by the Chief Justice, as to whether the counsel for the prosecution
intended to open the case more fully, stated, “that he had not intended
to open it more fully; he did not himself entertain the least doubt,
that if there was sufficient proof produced to justify the commitment
of Colonel Burr, the court had completely the right to commit him.”

Mr. Wickham complained because the gentlemen on the other side had
not given them notice of their intended motion. “We come into this
discussion completely off our guard, completely unprepared.” “The fact
is this,” replied Mr. Hay, “Mr. Wilkinson is known to be a material
witness in this prosecution; his arrival in Virginia, might be
announced in this city, before he himself reached it. I do not intend
to say what effect it might produce upon Colonel Burr’s mind; but
certainly Colonel Burr would be able to effect his escape, merely upon
paying the recognizance of his present bail. My only object then was
to keep his person safe, until we could have investigated the charge
of treason; and I really did not know but that if Colonel Burr had
been previously apprised of my motion he might have attempted to avoid
it. But I did not promise to make the communication to the opposite
counsel, because it might have defeated the very end for which it was
intended.”

Mr. Wickham observed, “that the present motion was unprecedented in
a system of criminal jurisprudence, which was upwards of one hundred
years old.” Continuing, Mr. Wickham said: “What, sir, is the tendency
of this application? What is the motion? I have no doubt, the gentlemen
mean to act correctly--I wish to cast no imputation; but the counsel
and the court well know that there are a set of busy people (not I hope
employed by the Government) who, thinking to do right, are laboring to
ruin the reputation of my client. I do not charge the Government with
this attempt; but the thing is actually done. Attempts have been made.
The press from one end of the continent to the other, has been enlisted
on their side to excite prejudice against Colonel Burr. Prejudice? Yes,
they have influenced the public opinion by such representations, and by
persons not passing between the prisoner and his country, but by _ex
parte_ evidence and mutilated statements. Ought not this court to bar
the door as much as possible, against such misrepresentation? to shut
out every effort to excite further prejudice, until the case is decided
by a sworn jury? Not by the floating rumors of the day, but by the
evidence of sworn witnesses?”

In reply to Mr. Botts and Mr. Wickham, Mr. Wirt for the first time
addressed the court:

“Where is the crime,” said Mr. Wirt, “of considering Aaron Burr a
subject to the ordinary operation of the human passions? Towards any
other man, it seems, the attorney would have been justified in using
precautions against alarms and escapes; it is only improper when
applied to this man. Really, sir, I recollect nothing in the history
of his deportment which renders it so very incredible, that Aaron Burr
would fly from a prosecution. But at all events, the attorney is bound
to act on general principles, and to take care that justice be had
against every person accused, by whatever name he may be called, or
by whatever previous reputation he may be distinguished. This motion,
however, it seems, is not legal at this time, because there is a grand
jury in session. The amount of the position is, that though it may be
generally true, that the court possesses the power to hear and commit,
yet, if there be a grand jury, the power of the court is suspended;
and the commitment cannot be had unless in consequence of a presentment
or bill of indictment found by that body. The general power of the
court being admitted, those who rely on this exception, should support
it by authority; and, therefore, the _loud call_ for precedents, which
we have heard from the other side come improperly from that quarter.
We ground this motion in the general power of the court to commit: let
those who say that this general power is destroyed by the presence
of a grand jury show one precedent to countenance this original and
extraordinary motion. I believe, sir, I may safely affirm, that not a
single reported case or dictum can be found, which has the most distant
bearing towards such an idea. Sir, no such dictum or case ought to
exist. It would be unreasonable and destructive of the principles of
justice.

“But, sir, we are told, that the investigation is calculated to
keep alive the public prejudice; and we hear great complaints about
these public prejudices. The country is represented as being filled
with misrepresentations and calumnies against Aaron Burr; the public
indignation, it is said, is already sufficiently excited. This
argument is also inapplicable to our right to make this motion; it
does not affect the legality of our procedure. Sir, if Aaron Burr be
innocent instead of resisting this motion, he ought to hail it with
triumph and exultation. What is it that we propose to introduce? Not
the rumors that are floating through the world, nor the _bulk_ of
the multitude, nor the speculations of newspapers, but the _evidence
of facts_. We propose, that the whole evidence exculpatory as well
as accusative, shall come before you; instead of exciting, this is
the true mode of correcting, prejudices. The world, which it is
said has been misled and influenced by falsehood, will now hear the
truth. Let the truth come out, let us know how much of what we have
heard is false, how much of it is true; how much of what we feel is
prejudice, how much of it is justified by fact. Whoever before heard
of such an apprehension as that which is professed on the other side?
_Prejudice excited by evidence!_ Evidence, sir, is the great corrector
of prejudice. Why then does Aaron Burr shrink from it? It is strange
to me that a man, who complains so much of being, without cause,
illegally seized and transported by a military officer, should be
afraid to confront the evidence; evidence can be promotive only of
truth. I repeat it then, sir, why does he shrink from the evidence? The
gentlemen on the other side can give the answer. On our part we are
ready to produce that evidence.

“The gentleman assures us, that no imputation is meant against the
Government. Oh no, sir; Colonel Burr indeed has been oppressed, has
been persecuted; but far be it from the gentleman to charge the
Government with it. Colonel Burr indeed has been harassed by a military
tyrant, who is ‘the instrument of the Government bound to blind
obedience’; but the gentleman could not by any means be understood
as intending to insinuate aught to the prejudice of the Government.
The gentleman is understood, sir; his object is correctly understood.
He would divert the public attention from Aaron Burr and point it
to another quarter. He would, too, if he could, shift the popular
displeasure, which he has spoken of, from Aaron Burr to another
quarter. These remarks were not intended for your ear, sir; they were
intended for the people who surround us; they can have no effect upon
the mind of the court. I am too well acquainted with the dignity,
the firmness, the illumination of this bench, to apprehend any such
consequence. But the gentlemen would balance the account of popular
prejudices; they would convert the judicial inquiry into a political
question; they would make it a question between Thomas Jefferson and
Aaron Burr. The purpose is well understood, sir; but it shall not
be served. I will not degrade the administration of this country by
entering on their defence. Besides, sir, this is not our business; at
present we have an account to settle, not between Aaron Burr and Thomas
Jefferson, but between Aaron Burr and the laws of his country. Let us
finish his trial first. The administration, too, will be tried before
their country; before the world. They, sir, I believe, will never
shrink, either from the evidence or the verdict.”

Mr. Hay then delivered an elaborate argument in support of his motion
and was followed by Mr. Randolph. Colonel Burr concluded the debate in
a ten minutes’ speech.

“The case is this,” says Colonel Burr: “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 personal 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 generally 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 seized, 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 witnesses ought to be produced, 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 obtain
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 exhibited; but if I had mine also to adduce, it would
probably contradict and counteract the evidence for 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 exists 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 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
everywhere 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
testimony against him. His papers, too, had been seized. “And yet,
in England,” said he, “where we say they know nothing of liberty,
a gentleman, who had been seized and detained two hours, in a back
parlour, had obtained damages to the amount of one thousand guineas.”
He said that an order had been issued to kill him, as he was descending
the Mississippi, and seize his property. And yet, they could only have
killed his person, even 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 exception from the general
rule. The Government may be tender, mild and humane to everybody but
me. If so, to be sure it is of little consequence to anybody but
myself. But surely I may be excused if I complain a little of such
proceedings.”

[Illustration: AFFIDAVIT OF BURR FOR SUBPŒNA _DUCES TECUM_ FOR
PRESIDENT JEFFERSON

  _Facing p. 40_
]

“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 cannot find one spot where it
existed. There was, to be sure, a most terrible war in the newspapers;
but nowhere else.”

The next day the court in a written opinion held that the motion was
a proper one at this stage of the proceedings, and the attorney for
the United States was permitted to open his testimony; but in doing
so, the Chief Justice expressed his regrets that the result of the
motion “may be publications unfavorable to the justice and to the right
decision of the case.” Counsel were impressed with this observation
of the court, and an attempt was made to reach an agreement whereby
a public disclosure of the evidence at this time might be avoided.
It was proposed by counsel for the United States that Colonel Burr’s
recognizance be made sufficiently large to insure his appearance to
answer the charge of high treason against the United States, but on
the following day this proposition was rejected by Colonel Burr. Mr.
Hay then proceeded with some reluctance to the examination of witnesses
in support of his motion to commit Burr, as “he felt the full force of
the objections to a disclosure of the evidence, and the necessity of
the court declaring its opinion before the case was laid before the
jury.”

The attorney for the United States first sought to read the deposition
of General Wilkinson, which precipitated the question of the order in
which the testimony was to be introduced and its admissibility. The
Supreme Court had already decided in the case of Swartout and Bollman
that the deposition of Wilkinson might be admitted in evidence under
certain circumstances, but that it did not contain any proof of an
overt act. The Chief Justice observed that no evidence certainly had
any bearing upon the present case unless the overt act be proved, but
he would permit the attorney for the United States to pursue his own
course as to the order of introducing his testimony.

A lengthy argument here ensued, in which Mr. Botts took a conspicuous
part. In a most lucid manner he defined the crime of high treason under
the Constitution of the United States, and applied it to the issue
before the court.

“First,” he said, “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 cannot make them so. In England, when conspiring the death
of the King was treason, the _quo animo_ formed the essence of the
offence; but, in America, the national convention has confined treason
to the act. We cannot have a constructive 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 presumed. Secondly, the war must
not only have been levied, but Colonel Burr must be proved to have
committed an overt act of treason in that war. A treasonable intention
to coöperate is no evidence of an actual coöperation. 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, coöperating by acts,
or, in the language of the Constitution, be committing overt acts.
Thirdly, the overt act by the accused, as an actual war, must not only
be proved, but it must be proved to have been committed within this
district. Fourthly, the overt act must be proved by two witnesses.”

The Chief Justice declared this view of the law to be correct, and
General Wilkinson’s deposition was accordingly put aside.

Mr. Hay realized the utter futility of his efforts to commit Burr on
the charge of treason at this stage of the case, and readily consented
to Burr’s proposition to double the amount of his bond to answer the
charge of a misdemeanor. Luther Martin, who appeared for the first
time, became one of his sureties. He declared in open court that he
was happy to have this opportunity to give a public proof of his
confidence in the honor of Colonel Burr, and of his belief in his
innocence.

General Wilkinson had not as yet put in his appearance, and much
impatience was manifested because of the inconvenience he had caused.
The grand jury were therefore adjourned from day to day until the
second day of June, when they were adjourned until the 9th, on which
last named day he was expected to arrive.

The court met accordingly on the 9th, and after the names of the grand
jury had been called and explanations offered as to the continued
absence of General Wilkinson, Colonel Burr moved the court to issue
a subpœna _duces tecum_ addressed to the President of the United
States, requiring him to produce certain papers, and on the following
day he presented to the court an affidavit, drawn up and sworn to by
himself in open court in support of his motion. In this affidavit he
sets forth that he has great reason to believe, that a letter from
General Wilkinson to the President of the United States, dated October
21st, 1806, as mentioned in the President’s message of the 22nd
January, 1807, to both Houses of Congress, together with the documents
accompanying the said letter, and copy of the answer of said Thomas
Jefferson, or of anyone by his authority, to the said letter, may be
material in his defence in the prosecution against him. And further
that he has reason to believe, the military and naval orders given by
the president of the United States, through the departments of war
and of the navy, to the officers of the army and navy, at or near
New Orleans stations, touching or concerning the said Burr, or his
property, will also be material in his defense; and that he had made a
personal request for copies of these papers during a recent visit to
Washington, and had been refused.

Mr. Martin in support of the propriety of granting this particular
subpœna laid down as a general principle, in all civil or criminal
cases, that every man had a right by process to establish his rights
or his innocence. He asserted that one of the papers necessary to the
defense is the original letter from General Wilkinson described in
Burr’s affidavit. The other papers are copies of official orders by
the navy and war departments. He had supposed that every citizen was
entitled to such copies of official papers as are material to him, and
he had never heard of but one instance where they were refused, and
this was under presidential influence.

“We intend to show,” says Mr. Martin, “that, by this particular order,
his property and his person were to be destroyed; yes, by these
tyrannical orders, the life and property of an innocent man were to be
exposed to destruction. We did not expect these originals themselves.
But we did apply for copies; and were refused under presidential
influence. In New York, in the farcical trials of Ogden and Smith, the
officers of the Government screened themselves from attending, under
the sanction of the President’s name. Perhaps the same farce may be
repeated here; and it is for this reason that we applied directly to
the President of the United States. Whether it would have been best
to have applied to the Secretaries of State, of the Navy and War, I
cannot say. All that we want is the copies of some papers, and the
original of another. This is a peculiar case, sir. The President has
undertaken to prejudge this trial by declaring, that, ‘of his guilt
there can be no doubt.’ He has assumed to himself the knowledge of
the Supreme Being himself, and pretended to search the heart of my
highly respected friend. He has proclaimed him a traitor in the face
of that country, which has rewarded him. He has let slip the dogs
of war, the hell-hounds of persecution, to hunt down my friend. And
would this President of the United States, who has raised all of this
absurd clamor, pretend to keep back the papers which are wanted for
this trial, where life is at stake? It is a sacred principle, that in
all such cases, the accused has a right to all the evidence which is
necessary to his defense. And whoever withholds, wilfully, information
that would save the life of a person, charged with a capital offence,
is substantially a murderer, and so recorded in the registry of Heaven.”

[Illustration: SUBPŒNA _DUCES TECUM_ FOR PRESIDENT JEFFERSON]

[Illustration: SUBPŒNA _DUCES TECUM_ FOR PRESIDENT JEFFERSON (Continued)

  _Facing p. 50_
]

Mr. Wirt replied to Mr. Martin, and in the course of his argument, made
the following reference to Martin’s arraignment of Jefferson and the
administration:

“I cannot take my seat, sir, without expressing my deep and sincere
sorrow at the policy which the gentlemen in the defense have thought
it necessary to adopt. As to Mr. Martin, I should have been willing
to impute this fervid language to the sympathies and resentments of
that friendship which he has taken such frequent occasions to express
for the prisoner, his honourable friend. In the cause of friendship I
can pardon zeal even up to the point of intemperance; but the truth
is, sir, that before Mr. Martin came to Richmond, this policy was
settled, and on every question incidentally brought before the court,
we were stunned with invectives against the administration. I appeal
to your recollection, sir, whether this policy was not manifested even
so early as in those new and until now unheard of challenges to the
grand jury for favour? Whether that policy was not followed up with
increased spirit, in the very first speeches which were made in this
case; those of Mr. Botts and Mr. Wickham on their previous question
pending the attorney’s motion to commit? Whether they have not seized
with avidity every subsequent occasion, and on every mere question of
abstract law before the court, flew off at a tangent from the subject,
to launch into declamations against the government? Exhibiting the
prisoner continually as a persecuted patriot; a Russell or a Sidney,
bleeding under the scourge of a despot, and dying for virtue’s sake!
If there be any truth in the charges against him, how different were
the purposes of his soul from those of a Russell or a Sidney! I beg to
know what gentlemen can intend, expect, or hope, from these perpetual
philippics against the Government? Do they flatter themselves that this
court feel political prejudices which will supply the place of argument
and innocence on the part of the prisoner? Their conduct amounts to an
insinuation of the sort. But I do not believe it. On the contrary, I
feel the firm and pleasing assurance, that as to the court, the beam
of their judgment will remain steady, although the earth itself should
shake under the concussion of prejudice. Or is it on the bystanders
that the gentlemen expect to make a favourable impression? And do they
use the court merely as a canal, through which they may pour upon the
world their undeserved invectives against the Government? Do
they wish to divide the popular resentment and diminish thereby their
own quota? Before the gentlemen arraign the administration, let them
clear the skirts of their client. Let them prove his innocence; let
them prove that he has not covered himself with the clouds of mystery
and just suspicion; let them prove that he has been all along erect
and fair, in open day, and that these charges against him are totally
groundless and false. That will be the most eloquent invective which
they can pronounce against the prosecution; but until they prove this
innocence, it shall be in vain that they attempt to divert our minds
to other objects, and other inquiries. We will keep our eyes on Aaron
Burr until he satisfies our utmost scruple. I beg to know, sir, if the
course which gentlemen pursue is not disrespectful to the court itself?
Suppose there are any foreigners here accustomed to regular government
in their own country, what can they infer from hearing the federal
administration thus reviled to the federal judiciary? Hearing the
judiciary told, that the administration are ‘Bloodhounds, hunting this
man with a keen and savage thirst for blood; that they now suppose
they have hunted him into their toils and have him safe.’ Sir, no man,
foreigner or citizen, who hears this language addressed to the court,
and received with all the complacency at least which silence can imply,
can make any inferences from it very honourable to the court. It would
only be inferred, while they are thus suffered to roll and luxuriate
in these gross invectives against the administration, that they are
furnishing the joys of a Mahometan paradise to the court as well as to
their client. I hope that the court, for their own sakes, will compel
a decent respect to that government of which they themselves form a
branch. On our part, we wish only a fair trial of this case. If the man
be innocent, in the name of God let him go; but while we are on the
question of his guilt or innocence, let us not suffer our attention and
judgment to be diverted and distracted by the introduction of other
subjects foreign to the inquiry.”

The counsel for the prosecution admitted that the President of the
United States was amenable to an ordinary subpœna _ad testificandum_
as any other citizen, but that the application for a subpœna _duces
tecum_ was addressed to the discretion of the court, and did not issue
as a process of right. Besides, the papers required to be produced
by such a process must be shown to be material for the defense. They
questioned the propriety of compelling the chief magistrate to produce
in court any papers in his possession not public in its character.
They further contended that until the grand jury had found a true bill
and the prosecutor had announced his intention to proceed to a trial
thereon the prisoner had no right to legal process.

After five days of debate the Chief Justice delivered an elaborate
opinion on the motion of Colonel Burr. He decided that the subpœna
_duces tecum_ directed to the president of the United States might
issue. He held that any person charged with a crime in the courts of
the United States has a right, before, as well as after indictment, to
the process of the court to compel the attendance of his witnesses;
that in the provisions of the Constitution, and of the statutes which
give to the accused a right to the compulsory process of the court,
there is no exception whatever.

“If, upon any principle,” said the Chief Justice, “the President
could be construed to stand exempt from the general provisions of the
Constitution, it would be because his duties, as chief magistrate,
demand his whole time for national objects. But it is apparent that
this demand is not unremitting; and, if it should exist at the time
when his attendance on a court, is required, it would be sworn on
the return of the subpœna, and would rather constitute a reason for
not obeying the process of the court, than a reason against it being
issued. The guard furnished to this high office to protect him from
being harassed by vexatious and unnecessary subpœnas, is to be looked
for in the conduct of a court after those subpœnas have issued; not in
any circumstance which is to precede their being issued. If, in being
summoned to give his personal attendance to testify, the law does
not discriminate between the President and a private citizen, what
foundation is there for the opinion, that this difference is created
by the circumstance, that his testimony depends on a paper in his
possession, not on facts, which come to his knowledge otherwise than
by writing? The court can perceive no foundation for such an opinion.
The propriety of introducing any paper into a case, as testimony, must
depend on the character of the paper, not on the character of the
person who holds it. A subpœna _duces tecum_, then, may issue to any
person to whom any ordinary subpœna may issue, directing him to bring
any paper of which the party praying it has a right to avail himself as
testimony; if, indeed, that be the necessary process for obtaining the
view of such paper.”

The decision of the Chief Justice and the strictures of Martin threw
Jefferson into a violent rage. We find him promptly writing to Mr. Hay,
“Shall we move to commit Luther Martin as _particeps criminis_ with
Burr? Grayball will fix upon him misprision of treason at least, and,
at any rate, his evidence will pull down this unprincipled and impudent
Federal bull-dog, and add another proof that the most clamorous
defenders of Burr are all his accomplices.” And again he writes to
Hay, after discussing at length the intimation in the decision of the
Chief Justice that even the bodily presence of the President might
be compelled by the court, which proposition he indignantly denied,
“that the leading feature of our Constitution is the independence of
the legislative, executive and judiciary of each other; and none are
more jealous of this than the judiciary. But would the executive be
independent of the judiciary if he were subject to the commands of the
latter, and to imprisonment for disobedience, if the smaller courts
could bandy him from pillar to post, keep him constantly trudging from
North to South and East and West and withdraw him entirely from his
executive duties?”

The law and reasoning of the decision of the Chief Justice were
convincing. Jefferson knew that under the Constitution the President
had no superior right to those of any other citizen, and, while
directing substantially all papers required by the subpœna _duces
tecum_ to be furnished, he refused to appear in person in court. He
openly defied the process of the court. He intimated that if the court
attempted to enforce its writ he would meet force with force. The
Chief Justice realized what this meant, and the matter was quietly
dropped.

On Saturday, June 13th, twenty-two days after the court had convened,
General Wilkinson arrived in the city of Richmond, and on the following
Monday he was sworn and sent to the grand jury, with a notification
that it would facilitate their inquiries if they would examine him
immediately.

Wilkinson was at the head of the army and Governor of the territory
of Louisiana, to which latter office he had been appointed about the
close of the session of Congress that Burr as Vice-President presided
over the Senate. Between him and Burr a long friendship had existed.
They had been fellow soldiers in the War of the Revolution--had shared
together the hardships of the winter of 1775-6, and the perils of the
unsuccessful attack on the city of Quebec. While it was true they had
seen very little of each other since the war they had at intervals,
and only a short time before the arrest of Burr, corresponded
confidentially and in cipher. He was undoubtedly in the secrets of
Burr, until he saw the impending explosion, and then he became active
in exposing the plot and bringing Burr to trial. Certain it is that
Burr regarded him as an associate and denounced his treachery.

The meeting between Burr and his former friend Wilkinson was dramatic,
and is graphically described by Washington Irving.

“Burr,” says Irving, “was seated with his back to the entrance, facing
the judges, and conversing with one of his counsel when Wilkinson
strutted into the court and took a stand in a parallel line with Burr
on his right hand. Here he stood for a moment swelling like a turkey
cock, and bracing himself up for the encounter of Burr’s eyes. The
latter did not take any notice of him until the Judge directed the
clerk to swear General Wilkinson; at the mention of the name Burr
turned his head, looked him full in the face with one of his piercing
regards, swept his eye over his whole person from head to foot, as if
to scan its dimensions and then cooly resumed his former position, and
went conversing with his counsel as tranquilly as ever. The whole look
was over in an instant, on but it was an admirable one. There was no
appearance of study or constraint in it; no affectation of disdain or
defiance; a slight expression of contempt played over his countenance,
such as you would show on regarding any person to whom you were
indifferent, but whom you considered mean and contemptible.”

The examination of witnesses by the grand jury continued from day to
day until June 24th, when in the midst of an argument by Mr. Botts for
an attachment against General Wilkinson for endeavoring to prevent the
free course of testimony, the grand jury entered the courtroom, and
speaking through its distinguished foreman, stated that they had agreed
upon several indictments, which he handed to the clerk of the court.
The clerk then read the following endorsements thereon:

“An indictment against Aaron Burr for treason--a true bill.”

“An indictment against Aaron Burr for a misdemeanor--a true bill.”

“An indictment against Herman Blannerhassett for treason--a true bill.”

“An indictment against Herman Blannerhassett for a misdemeanor--a true
bill.”

The grand jury then adjourned until the next day, and at the conclusion
of Mr. Bott’s argument on the motion for attachment, Colonel Burr with
his wonted serene and placid air arose and stated to the court, that
as true bills had been found against him, it was probable, the United
States Attorney would move for his commitment; he would, however,
suggest two ideas for the consideration of the court. “One was that it
was within their discretion to bail in certain cases, even when the
punishment was death; and the other was, that it was expedient for
the court to exercise their discretion in this instance, as he should
prove, that the indictment against him had been obtained by perjury.”

Mr. Hay moved for his commitment. He stated that if the court had
the power to bail, it was only to be exercised according to their
sound discretion. After much time had been spent in debate, the Chief
Justice observed that “he was under the necessity of committing Colonel
Burr.” He was accordingly committed to the custody of the Marshal, and
conducted to the city jail, for the County of Henrico and the City of
Richmond; but two days later on the affidavit of his counsel, who had
visited him in his confinement, that the miserable state of the prison
would endanger his health, and that it was so arranged as to deprive
him of consultation with his counsel, and upon the further report of
the Surveyor of the Public Buildings of the United States, the court
entered the following order:

“Whereupon, it is ordered, that the Marshal of this district, do cause
the front room of the house now occupied by Luther Martin, Esq., which
room has been and is used as a dining room, to be prepared for the
reception and safe-keeping of Colonel Aaron Burr, by securing the
shutters to the windows of the said room by bars, and the door by a
strong bar or pad-lock. And that he employ a guard of seven men to
be placed on the floor of the adjoining unfinished house, and on the
same story with the before described front room, and also, at the door
opening into the said front room; and upon the Marshal’s reporting to
the court that the said room has been so fitted up, and the guard
employed, that then the said Marshal be directed, and he is hereby
directed, to remove to the said room, the body of the said Aaron Burr
from the public gaol, there to be by him safely kept.”

This building now known as Blair’s Drug Store, still stands at the
corner of Ninth and Broad Streets, in the City of Richmond, Virginia.

The grand jury had on the day previous brought in indictments for
treason against Ex-Senator Jonathan Dayton of New Jersey, Ex-Senator
John Smith of Ohio, Comfort Tyler and Israel Smith of New York;
and Davis Floyd of the territory of Indiana. This completed their
inquiries, and after an appropriate address by the Chief Justice
in which he complimented them upon the great patience and cheerful
attention with which they had performed the arduous and laborious
duties in which they had been so long engaged, discharged them from
further attendance on the court.

After some discussion as to procedure, the clerk of the court read the
indictment against Burr, for treason against the United States, which
with the endorsements thereon (exclusive of the verdict of the trial
jury), is as follows:

    “VIRGINIA DISTRICT:

    “IN THE CIRCUIT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR
    THE FIFTH CIRCUIT AND VIRGINIA DISTRICT:

    “The grand inquest of the United States of America, for the
    Virginia district, upon their oath do present that Aaron Burr,
    late of the city of New York, and State of New York, Attorney
    at Law, being an inhabitant of and residing within the United
    States, and under the protection of the laws of the United
    States, and owing allegiance and fidelity to the same United
    States, not having the fear of God before his eyes, nor weighing
    the duty of his said allegiance, but being moved and seduced by
    the instigation of the devil, wickedly devising and intending
    the peace and tranquillity of the said United States to disturb
    and to stir, move and excite insurrection, rebellion and war
    against the said United States, on the tenth day of December
    in the year of Christ one thousand eight hundred and six at a
    certain place called and known by the name of Blannerhassett’s
    Island, in the county of Wood and District of Virginia aforesaid,
    and within the jurisdiction of this Court, with force and arms
    unlawfully, falsely, maliciously and traitorously did compass,
    imagine and intend to raise and levy war, insurrection and
    rebellion against the said United States; and in order to fulfil
    and bring to effect the said traitorous compassings, imaginations
    and intentions of him, the said Aaron Burr, he, the said Aaron
    Burr, afterwards, to wit, on the said tenth day of December in
    the year one thousand eight hundred and six aforesaid, at the
    said island, called Blannerhassett’s Island as aforesaid, in the
    County of Wood aforesaid in the District of Virginia aforesaid
    and within the jurisdiction of this Court, with a great multitude
    of persons whose names at present are unknown to the grand
    inquest aforesaid, to a great number, to wit, to the number
    of thirty persons and upwards, armed and arrayed in a warlike
    manner, that is to say, with guns, swords, and dirks and other
    warlike weapons as well offensive as defensive, being then and
    there unlawfully, maliciously and traitorously assembled and
    gathered together, did falsely and traitorously assemble and
    join themselves together against the said United States, and
    then and there with force and arms did falsely and traitorously,
    and in warlike and hostile manner, array and dispose themselves
    against the said United States, and then and there that is to
    say on the day and in the year aforesaid at the island aforesaid
    commonly called Blannerhassett’s Island in the County aforesaid
    of Wood, within the Virginia district, and the jurisdiction of
    this Court, in pursuance of such their traitorous intentions and
    purposes, aforesaid, he the said Aaron Burr with the said persons
    so as aforesaid traitorously assembled and armed and arrayed in
    manner aforesaid, most wickedly, maliciously and traitorously
    did ordain, prepare and levy war against the said United States,
    contrary to the duty of their said allegiance and fidelity,
    against the Constitution, peace and dignity of the said United
    States, and against the form of the Act of Congress of the said
    United States, in such case made and provided:

    “And the grand inquest of the United States of America for the
    Virginia district upon their oaths aforesaid do further present,
    that the said Aaron Burr, late of the City of New York, and State
    of New York, attorney at law, being an inhabitant of and residing
    within the United States and under the protection of the laws
    of the United States, and owing allegiance and fidelity to the
    same United States, not having the fear of God before his eyes,
    nor weighing the duty of his said allegiance, but being moved
    and seduced by the instigation of the devil, wickedly devising
    and intending the peace and tranquillity of the United States to
    disturb, and to stir, move, and excite insurrection, rebellion
    and war against the said United States, on the eleventh day of
    December in the year of our Lord one thousand eight hundred
    and six, at a certain place, called and known by the name of
    Blannerhassett’s Island in the County of Wood and District of
    Virginia aforesaid and within the jurisdiction of this court,
    with force and arms, unlawfully, falsely, maliciously and
    traitorously did compass, imagine and intend to raise and levy
    war, insurrection and rebellion against the said United States,
    and in order to fulfil and bring to effect the said traitorous
    compassings, imaginations and intentions of him the said Aaron
    Burr, he, the said Aaron Burr, afterwards, to wit, on the said
    last mentioned day of December in the year one thousand eight
    hundred and six aforesaid, at a certain place commonly called and
    known by the name of Blannerhassett’s Island in the said County
    of Wood, in the District of Virginia aforesaid, and within the
    jurisdiction of this court, with one other great multitude of
    persons, whose names at present are unknown to the grand inquest
    aforesaid, to a great number, to wit, to the number of thirty
    persons and upwards, armed and arrayed in a warlike manner, that
    is to say, with guns, swords and dirks, and other warlike weapons
    as well offensive as defensive being then and there unlawfully,
    maliciously and traitorously assembled and gathered together, did
    falsely and traitorously assemble and join themselves together
    against the said United States, and then and there with force and
    arms did falsely and traitorously and in a warlike and hostile
    manner, array and dispose themselves against the said United
    States, and then and there, that is to say, on the day and in
    the year last mentioned, at the island aforesaid in the County
    of Wood aforesaid, in the Virginia district, and within the
    jurisdiction of this Court, in pursuance of such their traitorous
    intentions, and purposes aforesaid, he the said Aaron Burr with
    the said persons so as aforesaid traitorously assembled and armed
    and arrayed in manner aforesaid, most wickedly, maliciously and
    traitorously did ordain, prepare and levy war against the said
    United States, and further to fulfil and carry into effect the
    said traitorous compassings, imaginations and intentions of the
    said Aaron Burr against the said United States, and to carry on
    the war thus levied as aforesaid against the said United States,
    the said Aaron Burr with the multitude last mentioned at the
    island aforesaid, in the said County of Wood, within the Virginia
    district aforesaid and within the jurisdiction of this court,
    did array themselves in a warlike manner, with guns and other
    weapons offensive and defensive, and did proceed from the said
    island down the river Ohio, in the County aforesaid within the
    Virginia district, and within the jurisdiction of this Court,
    on the said eleventh day of December in the year one thousand
    eight hundred and six aforesaid, with the wicked and traitorous
    intention to descend the said river and the river Mississippi
    and by force and arms traitorously to take possession of a
    City commonly called New Orleans in the territory of Orleans
    belonging to the United States; contrary to the duty of their
    said allegiance and fidelity, against the Constitution, peace and
    dignity of the said United States and against the form of the
    Act of the Congress of the United States in such case made and
    provided.

    HAY.

    Attorney of the United States for the Virginia District.

  “Witness in behalf of the United States.

  1. Thomas Truxton
  2. Stephen Decatur
  3. Benjamin Stoddert
  4. William Eaton
  5. William Duane
  6. Erick Bollman
  7. Peter Taylor
  8. Jacob Allbright
  9. Charles Willie
  10. John Graham
  11. Saml. Swartout
  12. Julien Dupeistre
  13.     Prevost
  14. James Miller
  15. Saml. Kouten
  16. George Morgan
  17. John Morgan
  18. Thomas Morgan
  19. Nicholas Perkins
  20. Robert Spence
  21. George Harris
  22. Cyrus Jones
  23. Thomas Peterkin
  24. Elias Glover
  25. Simeon Poole
  26. Dudley Woodbridge
  27. David C. Wallace
  28. Edward W. Tupper
  29. Edmund B. Dana
  30. James Read
  31. John G. Henderson
  32. Alex. Henderson
  34. Ambrose Smith
  35. Hugh Phelps
  36. Gen. Wilkinson
  37.     Dunbaugh
  38. Charles Lindsay
  39. John Manhatton
  40. James Knox
  41. William Love
  42. David Fisk
  43. Thomas Heartly
  44. Stephen S. Welch
  45. James Kenney
  46. Samuel Moxley
  47. Edw. P. Gaines
  48. A. D. Smith.”

    _ENDORSED_:

  “United States
      vs.
  Aaron Burr.
    Indictment for Treason.
            A true Bill.
                John Randolph.”

[Illustration: FINDINGS OF THE GRAND AND PETIT JURIES

  _Facing p. 70_
]

At the conclusion of the reading of the indictment, Mr. Burr addressed
the court as follows:

“I acknowledge myself to be the person named in the indictment: I plead
_not guilty_; and put myself upon my country for trial.”

The indictment, as will be observed, specifies the place of the overt
act to be at Blannerhassett Island, and the time the 10th day of
December, 1806.

The court, when the plea was in, made an order for a venire of
forty-eight jurors, twelve of whom, at least, were to be summoned from
Wood County and on the following day, June 27th, the court ordered the
_venire facias_ to issue to the marshal, returnable on the 3rd day of
August and fixed that day for the trial.

Three days later Burr was, on motion of the United States attorney,
removed from his lodging at the corner of Ninth and Broad Streets, and,
with the approval of the Governor of Virginia, placed in the third
story of the penitentiary, therein to be confined, until the 2nd day of
August.

The court pursuant to adjournment met promptly at 12 o’clock, Monday,
August 3rd, in the House of Delegates, with Chief Justice Marshal
presiding. Judge Griffin, the District Judge, who had heretofore set in
the case, did not appear until the following Friday.

George Hay, William Wirt and Alexander MacRae appeared as counsel for
the prosecution, and Edmund Randolph, John Wickham, Benjamin Botts,
John Baker and Luther Martin for the prisoner. Mr. Charles Lee appeared
about two weeks later.

The court room was crowded with an immense throng of citizens, when
Burr, accompanied by his son-in-law, Governor Alston, of South
Carolina, and exhibiting his usual serenity and self-possession,
entered. The names of the jurors were promptly called, and shortly
thereafter the court adjourned until the following Wednesday, to give
counsel for the defense time to examine the list of the jurors summoned.

The court met pursuant to adjournment, and for twelve days was engaged
in the selection of a jury for the trial of the case. Of the original
venire of forty-eight, only four, Richard E. Parker, David Lambert,
Hugh Mercer, and Edward Carrington were elected, and, of the second
venire for a like number, eight were accepted as competent jurors,
namely, Christopher Anthony, James Sheppard, Reuben Blakey, Miles
Bottes, Henry C. Coleman, Benjamin Graves, John M. Sheppard, and
Richard Curd.

The jury now being elected and sworn, the prisoner was directed to
stand up. The clerk read the indictment for treason against him, and,
at the conclusion of the reading, addressed the jury in the usual form.
The case was then opened for the prosecution by Mr. Hay, it being
agreed that he should fully present the side of the government, and
immediately thereafter proceed with his evidence.

Mr. Hay dwelt at great length on the crime of treason.

“In Great Britain,” he said, “there are no less than ten different
species of treason; at least that was the number when Blakstone
wrote, and it is possible that the number may have been increased
since. But in this country, where the principle is established in the
Constitution, there are only two descriptions of treason; and the
number being fixed in the Constitution itself, can never be increased
by the legislature, however important and necessary it should be,
in their opinion, that the number should be augmented. By the third
section, article 3 of the Constitution of the United States, ‘treason
against the United States shall consist only in levying war against
them, or in adhering to their enemies; giving them aid and comfort.’
With respect to the latter description, there is no occasion to say
anything, as the offense charged in the indictment is ‘levying war
against the United States’; but it adds that ‘_no person shall be
convicted of treason, unless on the testimony of two witnesses to the
same overt act, or on confession in open court_.’”

The first witness called was General Eaton. Colonel Burr objected to
the order of the testimony. He said Mr. Hay had not stated the nature
of the witness’ testimony; but he presumed that it related to certain
conversations said to have happened at Washington. He contended that no
such evidence as that, which tended only to show intentions or designs,
was admissible until an _overt_ act of treason had been proved. This
question was ably argued by counsel on both sides.

The next day the Chief Justice decided that so far as the testimony of
General Eaton “relates to the fact charged in the indictment, so far
as it relates to levying war on Blannerhassett’s Island, so far as it
relates to a design to seize on New Orleans, or to separate by force,
the Western from the Atlantic states, it is deemed relevant and is now
admissible: so far as it respects other plans to be executed in the
City of Washington, or elsewhere, if it indicate a treasonable design,
it is a design to commit a distinct act of treason, and is therefore
not relevant to the present indictment. It can only, by showing a
general evil intention, render it more probable that the intention in
the particular case was evil. It is merely additional or corroborative
testimony, and therefore, if admissible at any time, it is only
admissible according to the rules and principles which the court must
respect, after hearing that which it is to confirm.”

General Eaton was then called to the stand and examined. He stated in
the beginning that he knew nothing of any overt act of treason on the
part of Burr, or of any of the happenings on Blannerhassett’s Island;
but that he knew much concerning Burr’s expressions of treasonable
intentions.

The next witnesses called to prove treasonable designs were Commodore
Truxton, Peter Taylor, Blannerhassett’s gardener, and Colonel Morgan
and his two sons.

The prosecution now took up the testimony to establish the _overt_ act
and called to the stand Jacob Allbright, Peter Taylor, William Love,
Maurice P. Belknap and Edmund B. Dana. These witnesses proved the
assemblage of men, some thirty or more, on Blannerhassett’s Island,
December 10th, 1806, armed with rifles and pistols, the pretended
purpose of which was to descend the Ohio River to the City of New
Orleans, and make it the base of operations in an expedition to Mexico;
but failed to prove the act of levying war.

It was not proved that Burr was present on the Island when the
assemblage of the men took place.

The only witness, who gave any direct testimony on the overt act
sought to be proved was Allbright, and he was discredited on
cross-examination. He testified on the night of the flight from the
Island that “a man by the name of Tupper (meaning General Tupper), laid
his hands upon Blannerhassett, and said: ‘Your body is in my hands, in
the name of the Commonwealth.’ Some such words as that he mentioned.
When Tupper made that motion, there were seven or eight muskets leveled
at him. Tupper looked about him and said ‘Gentlemen, I hope you will
not do the like.’ One of the gentlemen who was nearest about two yards
off said ‘I’d as leave as not.’ Tupper then changed his speech, and
said he wished him to escape safe down the river, and wished him luck.”

At the conclusion of the evidence relating directly to the overt act
charged in the indictment, counsel for the prosecution attempted
to introduce collateral testimony of acts beyond the limits of the
jurisdiction of the court; but Colonel Burr and his counsel strenuously
objected to such testimony as wholly irrelevant and inadmissible, and
moved the court to arrest the evidence on the ground that the United
States had failed to prove an overt act, constituting treason, under
the Constitution of the United States.

The argument on this motion, which was so vital to the further
prosecution of the case commenced on the 20th of August, and continued
until the 29th of that month, and was “doubtless,” says Parton, “the
finest display of legal knowledge and ability of which the history of
the American bar can boast.”

Mr. Wickham opened the debate and was followed by Randolph, Wirt,
Botts, MacRae, Hay and Lee. Mr. Martin concluded. It fills one volume
of Mr. Robertson’s report of the case, and it would be vain to attempt
in this brief review to give anything like a satisfactory account of
it. Some of the reasons urged in support of the motion were: that Burr,
not being present on Blannerhassett’s Island, was merely an accessory,
and not a principal; that if he was a principal he was a principal
only in the second degree, where guilt is merely derivative, and that
therefore no parole evidence could be admitted against him, until a
record was produced of the conviction of the offenders in the first
degree; that the facts must be proved as laid in the indictment, and
evidence proving the accused to have been absent at the time of the
overt acts is inadmissible to support an indictment charging him with
the commission of that act; that no parole evidence could be given to
connect the prisoner with the men assembled on Blannerhassett’s Island,
until an act of treason on the part of these men was proved; and that
the assemblage there was not an act of treason; that until the fact of
a crime is proved no evidence should be heard respecting the guilty
intentions of the accused.

On Monday, August 31st the Chief Justice rendered his decision. He read
it with great care and consumed three hours in doing so.

“The question now to be decided,” he began, “has been argued in a
manner worthy of its importance, and with an earnestness evincing the
strong conviction felt by the counsel on each side that the law is with
them.

“A degree of eloquence seldom displaced on any occasion has embellished
a solidity of argument, and a depth of research by which the court has
been greatly aided in forming the opinion it is about to deliver.

“The testimony adduced on the part of the United States to prove the
overt act laid in the indictment having shown, and the attorney for
the United States having admitted, that the prisoner was not present
when that act, whatever may be its character, was committed, and there
being no reason to doubt but that he was at a great distance and in a
different state, it is objected to the testimony offered on the part of
the United States, to connect him with those who committed the overt
act, that such testimony is totally irrelevant and must therefore be
rejected.

“The arguments in support of this motion respect in part the merits of
the case as it may be supposed to stand independent of the pleadings,
and in part as exhibited by the pleadings.

“On the first division of the subject two points are made:

“1st. That conformably to the constitution of the United States, no
man can be convicted of treason who was not present when the war was
levied.

“2d. That if this construction be erroneous, no testimony can be
received to charge one man with the overt acts of others until those
overt acts, as laid in the indictment, be proved to the satisfaction of
the court.

“The question which arises on the construction of the constitution, in
every point of view in which it can be contemplated, is of infinite
moment to the people of this country and to their government, and
requires the most temperate and the most deliberate consideration.

“Treason against the United States shall consist only in levying war
against them.”

The Chief Justice then proceeds to elaborately discuss an overt act
of levying war. The opinion delivered by the Supreme Court in the
case of Bollman and Swartout was declared by him to be not correctly
understood; and that there must be, before an overt act of treason
is completed, either the actual employment of force or a military
assemblage of men, who are in a posture of war.

In conclusion the Chief Justice said:

“The law of the case being thus far settled; what ought to be the
decision of the court on the present motion? Ought the court to sit and
hear testimony which cannot affect the prisoner? or ought the court to
arrest that testimony? On this question much has been said: much that
may perhaps be ascribed to a misconception of the point really under
consideration. The motion has been treated as a motion confessedly made
to stop relevant testimony; and, in the course of the argument, it has
been repeatedly stated, by those who oppose the motion, that irrelevant
testimony may and ought to be stopped. That this statement is perfectly
correct is one of those fundamental principles in judicial proceedings
which is acknowledged by all, and is founded in the absolute necessity
of the thing. No person will contend that, in a civil or criminal case,
either party is at liberty to introduce what testimony he pleases,
legal or illegal, and to consume the whole term in details of facts
unconnected with the particular case. Some tribunal then must decide
on the admissibility of testimony. The parties cannot constitute this
tribunal; for they do not agree. The jury cannot constitute it; for the
question is whether they shall hear the testimony or not. Who then but
the court can constitute it? It is of necessity the peculiar province
of the court to judge of the admissibility of testimony. If the court
admit improper or reject proper testimony, it is an error of judgment;
but it is an error committed in the direct exercise of their judicial
functions.

“The present indictment charges the prisoner with levying war against
the United States, and alleges an overt act of levying war. That overt
act must be proved, according to the mandates of the constitution
and of the act of congress, by two witnesses. It is not proved by a
single witness. The presence of the accused has been stated to be an
essential component part of the overt act in this indictment, unless
the common law principle respecting accessories should render it
unnecessary; and there is not only no witness who has proved his actual
or legal presence, but the fact of his absence is not controverted.
The counsel for the prosecution offer to give in evidence subsequent
transactions at a different place and in a different state, in order to
prove--what? the overt act laid in the indictment? that the prisoner
was one of those who assembled at Blannerhassett’s Island? No: that
is not alleged. It is well known that such testimony is not competent
to establish such a fact. The constitution and law require that the
fact should be established by two witnesses; not by the establishment
of other facts from which the jury might reason to this fact. The
testimony then is not relevant. If it can be introduced, it is only
in the character of corroboratives or confirmatory testimony, after
the overt act has been proved by two witnesses in such manner that
the question of fact ought to be left with the jury. The conclusion,
that in this state of things no testimony can be admissible, is so
inevitable that the counsel for the United States could not resist it.
I do not understand them to deny, that, if the overt act be not proved
by two witnesses so as to be submitted to the jury, all other testimony
must be irrelevant; because no other testimony can prove the act. Now,
an assemblage on Blannerhassett’s Island is proved by the requisite
number of witnesses; and the court might submit it to the jury whether
that assemblage amounted to a levying of war; but the presence of
the accused at that assemblage being nowhere alleged except in the
indictment, the overt act is not proved by a single witness; and of
consequence all other testimony must be irrelevant.

“The only difference between this motion as made, and the one in the
form which the counsel for the United States would admit to be regular,
is this: it is now general for the rejection of all testimony. It might
be particular with respect to each witness as adduced. But can this be
wished? or can it be deemed necessary? If enough be proved to show that
the indictment cannot be supported, and that no testimony, unless it be
of that description which the attorney for the United States declares
himself not to possess, can be relevant, why should a question be taken
on each witness?

“Much has been said in the course of the argument on points on which
the court feels no inclination to comment particularly; but which may,
perhaps, not improperly, receive some notice.

“That this court dares not usurp power is most true.

“That this court dares not shrink from its duty is not less true.

“No man is desirous of placing himself in a disagreeable situation.
No man is desirous of becoming the peculiar subject of calumny. No
man, might he let the bitter cup pass from him without self reproach,
would drain it to the bottom. But if he have no choice in the case, if
there be no alternative presented to him but a dereliction of duty or
the opprobrium of those who are denominated the world, he merits the
contempt as well as the indignation of his country who can hesitate
which to embrace.

“That gentlemen, in a case the most interesting, in the zeal with
which they advocate particular opinions, and under the conviction, in
some measure produced by that zeal, should on each side press their
arguments too far, should be impatient at any deliberation in the
court, and should suspect or fear the operation of motives to which
alone they can ascribe that deliberation, is perhaps a frailty incident
to human nature; but if any conduct on the part of the court could
warrant a sentiment that it would deviate to the one side or the other
from the line prescribed by duty and by law, that conduct would be
viewed by the judges themselves with an eye of extreme severity, and
would long be recollected with deep and serious regret.

“The arguments on both sides have been intently and deliberately
considered. Those which could not be noticed, since to notice every
argument and authority would swell this opinion to a volume, have not
been disregarded. The result of the whole is a conviction, as complete
as the mind of the court is capable of receiving on a complex subject,
that the motion must prevail.

“No testimony relative to the conduct or declarations of the prisoner
elsewhere and subsequent to the transaction on Blannerhassett’s Island
can be admitted; because such testimony, being in its nature merely
corroborative and incompetent to prove the overt act in itself, is
irrelevant until there be proof of the overt act by two witnesses.

“This opinion does not comprehend the proof by two witnesses that the
meeting on Blannerhassett’s Island was procured by the prisoner. On
that point the court for the present withholds its opinion for reasons
which have been already assigned; and as it is understood from the
statements made on the part of the prosecution that no such testimony
exists. If there be such let it be offered; and the court will decide
upon it. The jury have now heard the opinion of the court on the law
of the case. They will apply that law to the facts, and will find a
verdict of guilty or not guilty as their own consciences may direct.”

The next morning Mr. Hay, after counsel for the prosecution had given
serious consideration to the opinion of the court, stated that he had
neither argument nor evidence to offer to the jury. The jury then
retired and after an absence of twenty-five minutes, reported to the
court through their foreman, Colonel Carrington, the following verdict
endorsed on the indictment:

“We of the jury find that Aaron Burr is not proved to be guilty under
the indictment by any evidence submitted to us. We therefore find him
not guilty.”

Colonel Burr and his counsel objected to entering this form of the
verdict on the record. The court at length decided that the verdict
should remain on the indictment as found by the jury, and that the
record of the proceedings of the court should show simply a verdict of
“not guilty.” The following day Burr was released from prison on bail.

The trial was now begun on the indictment for high misdemeanor against
him, for having set on foot a military expedition against the territory
of a foreign prince, to-wit, the Province of Mexico, which was within
the empire of the King of Spain, who was at peace with the United
States. The trial lasted until the latter part of October when Burr was
acquitted.


THE END



Transcriber’s Notes


Punctuation and spelling were made consistent when a predominant
preference was found in this book; otherwise they were not changed.

Simple typographical errors were corrected; occasional unbalanced
quotation marks retained.

Ambiguous hyphens at the ends of lines were retained; occurrences of
inconsistent hyphenation have not been changed.

Most of the illustrations are of handwritten documents, and some are
difficult to read. Their lighting and contrast in this eBook have
been adjusted in an attempt to improve readability. The most readable
versions of these documents may be found in the HTML version of this
eBook at LibraryBlog.

List of Illustrations: “Affidavit of Burr for subœena” originally was
printed as “Affidavit at Burr for subpoena”; changed here.

Page 58: Transcriber corrected several lines of transposed text.

Page 78: “MacRae” originally was printed as “McRae” but was changed
here to match the predominant spelling of the name elsewhere in this
eBook.





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